Prime Time Commerce, LLC v. United States

Case: 21-1783 Document: 57 Page: 1 Filed: 06/28/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PRIME TIME COMMERCE, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1783
______________________
Appeal from the United States Court of International
Trade in No. 1:18-cv-00024-CRK, Judge Claire R. Kelly.
______________________
Decided: June 28, 2022
______________________
MARK B. LEHNARDT, Law Offices of David L. Simon,
Washington, DC, argued for plaintiff-appellant.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by BRIAN M. BOYNTON, JEANNE DAVIDSON, PATRICIA M.
MCCARTHY; BRENDAN SASLOW, Office of the Chief Counsel
for Trade Enforcement & Compliance, United States De-
partment of Commerce, Washington, DC.
______________________
Case: 21-1783 Document: 57 Page: 2 Filed: 06/28/2022
2 PRIME TIME COMMERCE, LLC v. US
Before LOURIE, MAYER, and CUNNINGHAM, Circuit
Judges.
CUNNINGHAM, Circuit Judge.
Prime Time Commerce, LLC (“Prime Time”), a U.S. im-
porter of cased pencils, appeals from the final judgment of
the U.S. Court of International Trade (“Trade Court”) sus-
taining the United States Department of Commerce’s
(“Commerce”) application of the China-wide antidumping
duty rate to Prime Time, rather than calculating an im-
porter-specific rate. Prime Time Com. LLC v. United
States, 495 F. Supp. 3d 1308, 1317–18 (Ct. Int’l Trade 2021)
(“Prime Time II”). The Trade Court also held that Prime
Time was barred from making arguments for which it
failed to exhaust its administrative remedies by not com-
menting on Commerce’s remand redetermination. Id. at
1316. For the reasons below, we affirm.
I. BACKGROUND
A. The Administrative Review
On December 28, 1994, Commerce issued an antidump-
ing duty order on certain cased pencils from China. Anti-
dumping Duty Order: Certain Cased Pencils from the
People’s Republic of China, 59 Fed. Reg. 66,909 (Dep’t of
Commerce Dec. 28, 1994) (“Cased Pencils Order”). Com-
merce notified interested parties of the opportunity to re-
quest an administrative review of the order on December
1, 2016. Antidumping or Countervailing Duty Order, Find-
ing, or Suspended Investigation; Opportunity to Request
Administrative Review, 81 Fed. Reg. 86,694 (Dep’t of Com-
merce Dec. 1, 2016). Prime Time filed a timely request for
administrative review of the order. J.A. 47–82 (Prime
Time Commerce, LLC’s Request for Administrative Review
(Jan. 3, 2017)). On February 13, 2017, Commerce initiated
an administrative review covering the period from Decem-
ber 1, 2015, through November 30, 2016. Initiation of An-
tidumping and Countervailing Duty Administrative
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PRIME TIME COMMERCE, LLC v. US 3
Reviews, 82 Fed. Reg. 10,457, 10,459 (Dep’t of Commerce
Feb. 13, 2017) (“Initiation Notice”).
In antidumping investigations of countries with non-
market economies (“NMEs”), such as China, Commerce ap-
plies a rebuttable presumption that all exporters are sub-
ject to government control. China Mfrs. Alliance, LLC v.
United States, 1 F.4th 1028, 1030–31, 1039 (Fed. Cir.
2021). Commerce uses a single antidumping rate for all
companies that fail to demonstrate independence from gov-
ernment control. Id. at 1030–31.
Here, Commerce preliminarily assigned a 114.90% an-
tidumping duty rate—the highest rate available—to all
China-wide entities. Certain Cased Pencils from the Peo-
ple’s Republic of China, 82 Fed. Reg. 43,329, 43,331 (Dep’t
of Commerce Sept. 15, 2017); see also Prime Time II, 495 F.
Supp. 3d at 1312. One of these entities was Ningbo Homey
Union Co., Ltd. (“Ningbo Homey”), Prime Time’s supplier
and exporter. Id. at 1311–12. Commerce had calculated
the 114.90% rate from facts available with an adverse in-
ference (“adverse facts available” or “AFA”). Certain Cased
Pencils from the People’s Republic of China; Final Results
and Partial Rescission of Antidumping Duty Administra-
tive Review, 67 Fed. Reg. 48,612, 48,613 (Dep’t of Com-
merce July 25, 2002), Dec. Mem. at cmt. 9 (citing 67 Fed.
Reg. 2402, 2406–07 (Dep’t of Commerce Jan. 17, 2002))
(“[W]e are relying on adverse facts available to determine
the margins for the PRC-wide entity.”).
Commerce invited companies seeking a separate rate
to submit a separate rate application (“SRA”) demonstrat-
ing their independence from the Chinese government. In-
itiation Notice, at 10,458.
B. Ningbo Homey’s Separate Rate Application and Prime
Time’s Submission
Ningbo Homey timely filed an SRA. J.A. 90–203 (Sep-
arate Rate Application of Ningbo Homey Union Co., Ltd.,
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4 PRIME TIME COMMERCE, LLC v. US
PR21/CR7-9 (Mar. 15, 2017)). Commerce selected Ningbo
Homey as the sole mandatory respondent. 1 J.A. 207–09
(Department of Commerce’s Respondent Selection Memo
(March 30, 2017)). Commerce then sent Ningbo Homey an
antidumping questionnaire instructing it to “wholly and
fully participate” in the administrative review, J.A. 216,
“not selectively choose which requests to respond to,” id.,and respond to questions on its separate rate status. J.A.
210–307 (Department of Commerce’s Questionnaire to
Ningbo Homey Union Co., Ltd. (Apr. 3, 2017)). Ningbo
Homey declined to participate further in the review, how-
ever, due to its low export volume and value along with the
expense and time commitment of participation. Appel-
lant’s Br. 6.
Believing Ningbo Homey’s rate to be significantly lower
than the 114.90% China-wide rate, Prime Time sought to
obtain an individual rate by providing additional infor-
mation to Commerce. Id. Prime Time submitted infor-
mation relevant to section C (U.S. sales) and section D
(factors of production) of the questionnaire sent to Ningbo
Homey. J.A. 313, 334 (Prime Time Commerce, LLC’s Sec-
tion C&D Questionnaire Response (Rejection Notice) (May
10, 2017)). Commerce rejected Prime Time’s submission.
J.A. 334–36 (Department of Commerce’s Rejection Letter to
Prime Time Commerce, LLC (June 9, 2017)). Commerce
reasoned that Prime Time’s submissions contained unsolic-
ited new information because Commerce’s questionnaire
1 Generally, Commerce must determine an individ-
ual dumping margin for each exporter. 19 U.S.C. § 1677f–
1(c)(1). But, where that is “not practicable,” Commerce
may limit its examination to a “reasonable number of ex-
porters.” § 1677f–1(c)(2). Commerce refers to those se-
lected for individual investigation as “mandatory
respondents.” Yangzhou Bestpak Gifts & Crafts Co. v.
United States, 716 F.3d 1370, 1372 (Fed. Cir. 2013).
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PRIME TIME COMMERCE, LLC v. US 5
was directed at Ningbo Homey, not Prime Time, and failed
to “include a detailed narrative explaining why it should be
considered.” Id. at 334–35. Prime Time requested recon-
sideration, but Commerce did not change its decision. J.A.
351–56 (Prime Time Commerce, LLC’s Request for Recon-
sideration (Aug. 3, 2017)).
C. Commerce’s Decision
In its Preliminary Results, Commerce determined that
Ningbo Homey failed to respond to all parts of the ques-
tionnaire, denied the separate rate, and assigned Ningbo
Homey the China-wide rate of 114.90%. Certain Cased
Pencils from People’s Republic of China: Preliminary Re-
sults of Antidumping Duty Administrative Review, Prelim-
inary Determination of No Shipments, and Rescission of
Review, in Part; 2015-2016, 82 Fed. Reg. 43,329, 43,330–31
(Dep’t of Commerce Sept. 15, 2017) (“Prelim. Dec. Mem.”).
Commerce invited interested parties to comment on its pre-
liminary results. Id. at 43,331. Prime Time renewed its
request for reconsideration, arguing that Commerce should
not have rejected its submission because Commerce had an
obligation to use that information under 19 U.S.C.
§ 1677m(e). J.A. 383–84, 389, 394–95 (Prime Time Com-
merce, LLC’s Case Brief (Oct. 16, 2017)). Prime Time also
argued that Commerce’s use of AFA was not warranted be-
cause Commerce should have considered neutral facts
available to calculate the rate for Prime Time even if Com-
merce applied AFA to other Ningbo Homey shipments.
J.A. 388. Prime Time lastly argued that the highest, most
adverse rate determined was not proportional to Prime
Time’s diligence and efforts to cooperate by providing infor-
mation to Commerce to calculate a rate for Ningbo Homey.
J.A. 391–94.
Nonetheless, Commerce made no changes in its final
results. Certain Cased Pencils from People’s Republic of
China: Final Results of Antidumping Duty Administrative
Review; 2015-2016, 83 Fed. Reg. 3,112 (Dep’t of Commerce
Case: 21-1783 Document: 57 Page: 6 Filed: 06/28/2022
6 PRIME TIME COMMERCE, LLC v. US
Jan. 23, 2018) (“Final Results”). In its Final Results, Com-
merce reasoned that Ningbo Homey failed to establish eli-
gibility for a separate rate because it did not provide
information supporting reconsideration of its preliminary
decision. Id. at 3,113. Commerce concluded that Prime
Time’s questionnaire response was properly rejected be-
cause it was incomplete, unsolicited, and did not come from
the mandatory respondent, Ningbo Homey. J.A. 399.
D. Prime Time’s Appeal
Prime Time appealed to the Trade Court. The Trade
Court found that Commerce erred in rejecting and remov-
ing Prime Time’s submission from the record. Prime Time
Com. LLC v. United States, 396 F. Supp. 3d 1319, 1326–34
(Ct. Int’l Trade 2019) (“Prime Time I”). It further deter-
mined that “Commerce’s decision not to consider Prime
Time’s efforts to comply with Commerce’s requests for in-
formation is in accordance with law.” Id. at 1333–34. The
Trade Court remanded Commerce’s final results, directing
Commerce to accept into the record and consider Prime
Time’s submission “in the context of calculating an im-
porter-specific assessment rate for Prime Time’s entries,”
or, if Commerce did not calculate an importer-specific rate,
explain why not doing so was reasonable. Id. at 1323.
On remand, Prime Time resubmitted its information.
J.A. 604–1348 (Prime Time Commerce LLC’s Resubmis-
sion of Section C&D Questionnaire Response Information
for Ningbo Homey Co., Ltd. (Aug. 6, 2019)). It explained
that it “had difficulty obtaining all the information neces-
sary to calculate a separate margin for Prime Time, and
thus [sought] guidance from Commerce for any further re-
quest for Ningbo Homey information.” J.A. 611–12. Prime
Time suggested that the information in other parties’ con-
fidential prior-review submissions “be representative of
Ningbo Homey to the extent applicable and missing from
the submission herein (e.g., labor, energy, and other [fac-
tors of production]).” J.A. 612. In its submission, Prime
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PRIME TIME COMMERCE, LLC v. US 7
Time included the public versions of other parties’ prior-
review submissions, which did not contain any confidential
gap-filling information. J.A. 756–1331. Only Commerce
had access to the confidential versions. J.A. 402.
In its draft remand redetermination, Commerce again
declined to calculate an importer-specific rate on the
grounds that Prime Time’s submitted information was “in-
complete,” “unreliab[le],” and “unduly difficult” to piece to-
gether. J.A. 1358–59, 1364 (Draft Results of
Redetermination Pursuant to Remand Order (Sept. 17,
2019)). Commerce again invited interested parties to com-
ment on this draft redetermination. J.A. 1364. Prime Time
chose not to comment. Accordingly, Commerce issued its
final remand redetermination without calculating an im-
porter-specific assessment rate for Prime Time. J.A. 1367–
82 (Final Results of Redetermination Pursuant to Remand
Order (Oct. 7, 2019)).
Once more, Prime Time challenged Commerce’s refusal
to calculate an importer-specific assessment rate before the
Trade Court. J.A. 1383–96 (Prime Time Commerce LLC’s
Comments on Remand Redetermination (Nov. 6, 2019)).
The Trade Court sustained Commerce’s remand redetermi-
nation as supported by substantial evidence. Prime Time
II, 495 F. Supp. 3d at 1318. The Trade Court held that
Prime Time’s arguments that Commerce failed to comply
with the remand order and failed to place gap-filling infor-
mation on the record were barred because Prime Time
failed to raise them before Commerce in the first instance.
Id. at 1313–14. Additionally, the Trade Court held that
Commerce’s practice of not calculating an importer-specific
assessment rate where an importer’s corresponding ex-
porter failed to fully comply with Commerce’s inquiries was
reasonable because the burden was on “interested parties
to populate the record; a burden which was not met in this
case.” Id. at 1317.
Case: 21-1783 Document: 57 Page: 8 Filed: 06/28/2022
8 PRIME TIME COMMERCE, LLC v. US
On appeal, Prime Time contests both the Trade Court’s
initial remand decision and its final decision. We have ju-
risdiction under 28 U.S.C. § 1295(a)(5).
II. DISCUSSION
Prime Time raises two arguments on appeal. First, it
argues that the Trade Court abused its discretion by re-
quiring Prime Time to exhaust its administrative remedies
as to its argument that Commerce should have looked to
confidential information within Commerce’s control to fill
gaps in its evaluation. Appellant’s Br. 25–34. Prime Time
asserts that this confidential information would have al-
lowed Commerce to calculate a separate rate for Ningbo
Homey and an importer-specific antidumping rate for
Prime Time, rather than using the high China-wide rate.
Id. at 25–26, 33–34. Second, Prime Time argues that Com-
merce erred in using the highest available rate as an AFA
rate because it did not conduct an “evaluation . . . of the
situation that resulted in” the use of AFA as required by 19
U.S.C. § 1677e(d)(2). Id. at 34–35, 36–39. Specifically,
Prime Time argues that Commerce should have considered
information provided by Prime Time in determining what
facts to rely on in calculating the applicable rate. Id. at 37–
39. We address each argument in turn.
A. Exhaustion of Administrative Remedies
Prime Time argues that the Trade Court abused its dis-
cretion in requiring exhaustion of administrative remedies
because it would have been futile to repeat its argument
before Commerce. Appellant’s Br. 20. We disagree.
We review the Trade Court’s decision to require ex-
haustion of administrative remedies for abuse of discre-
tion. Boomerang Tube, 856 F.3d at 912. We reverse the
Trade Court’s decision only if the Trade Court “erred in in-
terpreting the law, exercised its judgment on clearly erro-
neous findings of material fact, or made an irrational
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PRIME TIME COMMERCE, LLC v. US 9
judgment in weighing the relevant factors.” Id. (citation
omitted).
Generally, the Trade Court “shall, where appropriate,
require the exhaustion of administrative remedies.” 28
U.S.C. § 2637(d). The Trade Court typically takes a “strict
view” of the exhaustion requirement in trade cases. Corus
Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir.
2007). The exhaustion requirement applies equally in re-
mand proceedings. Mittal Steel Point Lisas Ltd. v. United
States, 548 F.3d 1375, 1383–84 (Fed. Cir. 2008).
Prime Time does not dispute that it did not submit
comments on Commerce’s September 17, 2019, remand re-
determination draft. Rather, Prime Time argues that its
failure to exhaust its administrative remedies should be
excused because raising its argument—that Commerce
should look to confidential information in Commerce’s con-
trol to provide gap-filling information necessary to calcu-
late an independent rate for Prime Time—again would
have been futile. Appellant’s Br. 25–34.
While the futility exception may be applied where “en-
forcing the exhaustion requirement would mean that par-
ties would be required to go through obviously useless
motions in order to preserve their rights,” the exception is
narrow. Corus Staal, 502 F.3d at 1379 (internal quotations
omitted). “The mere fact that an adverse decision may
have been likely does not excuse a party from a statutory
or regulatory requirement that it exhaust administrative
remedies.” Id. Here, while it may have been unlikely that
Commerce would have accepted Prime Time’s arguments,
it is far from certain that the government would have re-
jected them. And even when it is likely that Commerce
would have rejected an argument, “it would still have been
preferable, for purposes of administrative regularity and
judicial efficiency,” for Prime Time to submit comments
and “for Commerce to give its full and final administrative
response in the final results.” See id. at 1380.
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10 PRIME TIME COMMERCE, LLC v. US
This case is not akin to cases in which courts have held
that exhausting administrative remedies would have been
futile. Cf. Cooper v. Marsh, 807 F.2d 988, 990 (Fed. Cir.
1986) (“[A]n exception to the exhaustion doctrine [is] where
pursuit of a remedy before a particular forum would be fu-
tile[.]”); Randolph-Sheppard Vendors of Am. v. Weinberger,
795 F.2d 90, 105 (D.C. Cir. 1986) (explaining futility as in-
volving the “certainty of an adverse decision”). Prime Time
relies on Itochu Building Products v. United States, 733
F.3d 1140 (Fed. Cir. 2013), which is readily distinguisha-
ble. In Itochu, Commerce initially declined foreign nail
manufacturer Itochu’s request after Itochu “set forth its po-
sition in comments, met with eight department officials to
discuss the issue, and submitted legal support for its posi-
tion.” Id. at 1146. We explained that futility applies where
“it [was] clear that additional filings with the agency would
be ineffectual.” Id. “Commerce had heard everything on
the issue that Itochu had to say.” Id. at 1147. Here, Prime
Time raised new arguments before the Trade Court that
were not previously raised before Commerce. Compare
J.A. 611–12, with J.A. 1392–94. Because of Prime Time’s
failure to comment on Commerce’s draft remand redeter-
mination and the new arguments that it first raised before
the Trade Court, Commerce was not given an opportunity
to modify its final determination in response to arguments
raised by the parties as it could have during administrative
proceedings. Thus, we conclude that the Trade Court did
not abuse its discretion in requiring Prime Time to exhaust
its administrative remedies by commenting on Commerce’s
draft remand redetermination.
B. Application of the China-Wide Rate
We next turn to Commerce’s decision to apply the
China-wide rate to Prime Time. We review decisions by
the Trade Court de novo—the same standard under which
the Trade Court reviews Commerce’s determination—alt-
hough we recognize that the Trade Court has unique and
specialized expertise in this field. Boomerang Tube LLC v.
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PRIME TIME COMMERCE, LLC v. US 11
United States, 856 F.3d 908, 912 (Fed. Cir. 2017) (citation
omitted). We uphold Commerce’s calculation of an anti-
dumping rate unless it is unsupported by substantial evi-
dence or otherwise not in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938).
We determine that Commerce’s decision is supported
by substantial evidence. Commerce conducted a proper
case-specific evaluation by applying the China-wide rate to
Ningbo Homey, finding that Ningbo Homey failed to rebut
the presumption of government control, and extending the
China-wide rate to Prime Time as Ningbo Homey’s corre-
sponding importer. Commerce’s failure to consider Prime
Time’s efforts to cooperate as an interested party was
harmless error.
First, we must consider whether 19 U.S.C. § 1677e ap-
plies. Section 1677e governs when Commerce applies facts
available, including AFA, in determining antidumping
rates. 19 U.S.C. § 1677e. The parties dispute whether the
114.90% China-wide rate is an AFA rate. Appellant’s Br.
37–38; Appellee’s Br. 31, 35–36. But regardless of whether
the China-wide rate is an AFA rate or not, the statutory
framework of 19 U.S.C. § 1677e can apply. “The fact that
a country-wide rate may have been calculated using AFA
does not change its applicability to [an] NME entity that
cooperated, but ultimately failed to qualify for a separate
rate.” Diamond Sawblades Mfrs.’ Coal. v. United States,
866 F.3d 1304, 1312 (Fed. Cir. 2017). Although “[t]he stat-
utory framework, including 19 U.S.C. §§ 1673d and
1677e(b) . . . explicitly applies only to market economy pro-
ceedings,” we have permitted Commerce to “adopt[] that
statutory framework in NME proceedings as well.” Id.
Commerce maintains “broad authority to interpret the an-
tidumping statute and devise procedures to carry out the
statutory mandate.” Id. at 1311 (citation omitted); see also
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12 PRIME TIME COMMERCE, LLC v. US
Albemarle Corp. & Subsidiaries v. United States, 821 F.3d
1345, 1352 n.6 (Fed. Cir. 2016) (holding that although
§ 1673d “explicitly applies only to market economy pro-
ceedings . . . Commerce has adopted it in non-market econ-
omy proceedings as well”). Thus, § 1677e applies. We next
consider whether Commerce met the statutory require-
ments of that section.
Commerce conducted a proper evaluation under
§ 1677e(d)(2) in applying the highest available rate. We
find unpersuasive Prime Time’s contention that Com-
merce’s application of the highest rate available to Prime
Time’s entries was unsupported by substantial evidence
because Commerce did not conduct the evaluation required
by 19 U.S.C. § 1677e. See Appellant’s Br. 34–36. Subsec-
tion 1677e(d)(2) grants Commerce discretion to apply the
highest available rate “based on the evaluation by [Com-
merce] of the situation that resulted in [Commerce] using
an adverse inference in selecting among the facts otherwise
available.” 19 U.S.C. § 1677e(d)(2). Commerce must pro-
vide “case-specific evaluation” for its selection of the high-
est calculated rate. POSCO v. United States, 335 F. Supp.
3d 1283, 1285 (Ct. Int’l Trade 2018). “Evaluation of the
situation” requires Commerce, “as part of its determination
of applying the highest rate, to review the record to deter-
mine if there was something inappropriate or otherwise
unreasonable about that rate, given the situation leading
to the application of an adverse inference.” Hung Vuong
Corp. v. United States, No. 19-00055, 2021 WL 4772962, at
*3, 6 (Ct. Int’l Trade Oct. 12, 2021) (citing POSCO, 335 F.
Supp. 3d at 1285–86).
Here, Prime Time argues that the rate was unreason-
able because Commerce did not properly consider evidence
of Prime Time’s efforts to cooperate as an interested party
under § 1677m(e) and § 1677e(b)(1)(A). Appellant’s Br. 23–
24, 38–39. Subsection 1677m(e), which applies to adminis-
trative review proceedings under 19 U.S.C. § 1675 like the
one at issue here, states that Commerce:
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PRIME TIME COMMERCE, LLC v. US 13
shall not decline to consider information that is
submitted by an interested party and is necessary
to the determination but does not meet all the ap-
plicable requirements established by the adminis-
tering authority or the Commission, if—
(1) the information is submitted by the deadline es-
tablished for its submission,
(2) the information can be verified,
(3) the information is not so incomplete that it can-
not serve as a reliable basis for reaching the ap-
plicable determination,
(4) the interested party has demonstrated that it
acted to the best of its ability in providing the
information and meeting the requirements es-
tablished by the administering authority or the
Commission with respect to the information,
and
(5) the information can be used without undue dif-
ficulties.
19 U.S.C. § 1677m(e) (emphases added); see also 19 U.S.C.
§ 1677e(b)(1) (“If [Commerce] finds that an interested
party has failed to cooperate by not acting to the best of its
ability to comply with a request for information from [Com-
merce], [Commerce], in reaching the applicable determina-
tion under this subtitle— (A) may use an inference that is
adverse to the interests of that party in selecting from
among the facts otherwise available . . . .”). The term “in-
terested party” expressly includes “a foreign manufacturer,
producer, or exporter, or the United States importer, of
subject merchandise or a trade or business association a
majority of the members of which are producers, exporters,
or importers of such merchandise.” 19 U.S.C. § 1677(9)(A);
see also Diamond Sawblades Mfrs.’ Coal. v. United States,
986 F.3d 1351, 1357 (Fed. Cir. 2021) (“Interested parties,
including foreign producers or exporters of subject
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14 PRIME TIME COMMERCE, LLC v. US
merchandise, importers of such merchandise, and specified
domestic trade associations, are allowed to participate in
administrative reviews.”) (citing 19 U.S.C. § 1677(9)(A)).
United States importers, thus, are unambiguously consid-
ered to be interested parties. See Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
842–43 (1984) (holding that effect must be given to the “un-
ambiguously expressed intent of Congress” if “Congress
has directly spoken to the precise question at issue”). As
Prime Time argues, if Commerce finds that an interested
party has failed to cooperate, Commerce has the discretion
to use an adverse inference. Appellant’s Br. 17.
Indeed, Commerce and the Trade Court misconstrued
“interested party” by failing to consider the definition of
“interested party.” In its decision, the Trade Court ex-
plains:
Prime Time, as the importer, is not the party whose
actions are considered by Commerce when engag-
ing in the adverse inferences analysis under 19
U.S.C. § 1677e(b). The “interested party” the stat-
ute refers to is the party to whom Commerce di-
rected its requests for information and to whom the
adversely chosen rate would apply. Accordingly,
Commerce’s decision not to consider Prime Time’s
efforts to comply with Commerce’s requests for in-
formation is in accordance with law.
Prime Time I, 396 F. Supp. 3d at 1333–34. This analysis
was incorrect; Prime Time is “the United States importer,
of subject merchandise.” Because the Trade Court declined
to consider Prime Time’s efforts to cooperate as an im-
porter, the Trade Court thus erred.
However, the failure to consider Prime Time’s efforts to
cooperate was a harmless error. Prime Time’s purported
evidence of cooperation would not disturb the calculation of
the 114.90% China-wide rate nor entitle it to a separate
rate. Even “where a respondent in an NME country
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PRIME TIME COMMERCE, LLC v. US 15
cooperates with an investigation or review but fails to re-
but the presumption of government control, Commerce
may permissibly apply the country-wide NME entity rate.”
China Mfrs. Alliance, LLC v. United States, 1 F.4th 1028,
1040 (Fed. Cir. 2021). Under the framework of the pre-
sumption and requirement to rebut government control,
the China-wide rate of 114.90% would nonetheless be ap-
plied to Prime Time’s entries. We thus affirm. See Suntec
Indus. Co., Ltd. v. United States, 857 F.3d 1363, 1372 (Fed.
Cir. 2017) (finding Commerce’s error to be harmless and
affirming the Trade Court); Intercargo Ins. Co. v. United
States, 83 F.3d 391, 394 (Fed. Cir. 1996) (“It is well settled
that principles of harmless error apply to the review of
agency proceedings.”).
III. CONCLUSION
We have reviewed Prime Time’s other arguments and
find them unpersuasive. Because Prime Time failed to ex-
haust its administrative remedies and because Commerce
properly applied the China-wide rate to Ningbo Homey and
Prime Time, we affirm.
AFFIRMED