Nan Ya Plastics Corp., Ltd. v. United States

• Decision Date: 19 January 2016
• Docket Number: No. 2015–1054.,2015–1054.
• Citation: 810 F.3d 1333
• Parties: NAN YA PLASTICS CORPORATION, LTD., Plaintiff–Appellant v. UNITED STATES, Defendant–Appellee Dupont Teijin Films, Mitsubishi Polyester Film, Inc., Skc, Inc., Defendants.
• Court: U.S. Court of Appeals — Federal Circuit

810 F.3d 1333

NAN YA PLASTICS CORPORATION, LTD., Plaintiff–Appellant

v. UNITED STATES, Defendant–AppelleeDupont Teijin Films, Mitsubishi Polyester Film, Inc., Skc, Inc., Defendants.

No. 2015–1054.

United States Court of Appeals, Federal Circuit.

Jan. 19, 2016.

Peter J. Koenig, Squire Patton Boggs (US) LLP, Washington, DC, argued for plaintiff-appellant.

David D'Alessandris, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Benjamin C. Mizer, Patricia M. McCarthy ; Michael Thomas Gagain, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.

Before PROST, Chief Judge, LOURIE and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.

The instant appeal concerns the United States Department of Commerce's ("Commerce") administrative review of the antidumping duty order covering polyethylene terephthalate film, sheet, and strip from Taiwan ("subject merchandise") for the period July 1, 2009 to June 30, 2010. See Polyethylene Terephthalate Film, Sheet, and Strip from Taiwan, 76 Fed.Reg. 76,941 (Dep't of Commerce Dec. 9, 2011) (" Final

Results

") (final admin. review); Memorandum from Christian Marsh, Deputy Assistant Sec'y for Antidumping & Countervailing Duty Operations, Dep't of Commerce, to Paul Piquado, Assistant Sec'y for Import Admin., Dep't of Commerce (Dec. 5, 2011) (S.A.¹ 226–35); see also Final Results of Redetermination Pursuant to Remand (Dep't of Commerce May 23, 2013) (S.A.105–47). Appellant Nan Ya Plastics Corporation, Ltd. ("Nan Ya") contends that the United States Court of International Trade ("CIT") erred in sustaining Commerce's determination on remand in which it assigned an adverse facts available rate of 74.34% to Nan Ya's entries of subject merchandise entered during the period of review. See

Nan Ya Plastics Corp. v. United States (Nan Ya II ), 6 F.Supp.3d 1362 (Ct. Int'l Trade 2014) (sustaining remand determination); Nan Ya Plastics Corp. v. United States (Nan Ya I ), 906 F.Supp.2d 1348 (Ct. Int'l Trade 2013) (remanding Final Results to Commerce). We affirm the CIT, although we sustain Commerce's determination on different grounds.

BACKGROUND

I. Legal Framework

The antidumping statute provides for the assessment of remedial duties on foreign merchandise sold, or likely to be sold, in the United States "at less than its fair value." 19 U.S.C. § 1673 (2006).² At the conclusion of an investigation, if Commerce and the United States International Trade Commission have made the requisite findings, Commerce publishes an order that directs customs officers to assess duties on imports of goods covered by the investigation. Id. § 1673e(a).

Each year after the order is published, Commerce provides interested parties with an opportunity to request an administrative review of the order. If Commerce receives a request, it conducts a review of the order. Id. § 1675(a)(1). Each review constitutes a separate segment within the same administrative proceeding. See 19 C.F.R. § 351.102(b)(47) (2009).

For each review, the statute requires Commerce to "determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise." 19 U.S.C. § 1677f–1(c)(1). A dumping margin reflects the amount by which the " ‘normal value’ (the price a producer charges in its home market) exceeds the ‘export price’ (the price of the product in the United States) or ‘constructed export price.’ " U.S. Steel Corp. v. United States, 621 F.3d 1351, 1353 (Fed.Cir.2010) (citing 19 U.S.C. § 1677(35)(A) ) (footnote omitted).

"Although Commerce has authority to place documents in the administrative record that it deems relevant, the burden of creating an adequate record lies with interested parties and not with Commerce."

QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.Cir.2011) (internal quotation marks, brackets, and citations omitted). The placement of the burden on interested parties stems from the fact that the International Trade Administration, the relevant agency within Commerce, has no subpoena power. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990). Accordingly, each interested party that appears before Commerce must cooperate "to the best of its ability" with Commerce's requests for information, 19 U.S.C. § 1677e(b), which means that each party must "do the maximum it is able to do," Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed.Cir.2003). "While the standard does not require perfection and recognizes that mistakes sometimes occur, it does not condone inattentiveness, carelessness, or inadequate record keeping." Id.

If a respondent withholds requested information, fails to provide such information in the form or manner requested, or provides information that cannot be verified, the statute requires Commerce to use whatever facts are available to make its determination. 19 U.S.C. § 1677e(a)(2). If Commerce finds that a respondent has "failed to cooperate by not acting to the best of its ability to comply with a request for information," the statute permits the agency to draw adverse inferences commonly known as "adverse facts available" when selecting from among the available facts. Id. § 1677e(b). Commerce "may employ [such] inferences ... to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully." Statement of Administrative Action accompanying the Uruguay Round Agreements Act ("SAA"), H.R.Rep. No. 103–316, vol. 1, at 870 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199.³ In selecting from among the adverse facts available, Commerce may rely upon information derived from: (1) the petition filed to initiate the investigation; (2) a final determination in the investigation; (3) a previous administrative review; or (4) "any other information placed on the record." 19 U.S.C. § 1677e(b). Once it selects particular facts, Commerce uses them to assign a dumping margin for each non-cooperating respondent that it reviews.

If Commerce "relies on secondary information rather than on information obtained in the course of ... [the] review," the statute requires that the agency "shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal." Id. § 1677e(c). "Secondary information is information derived from the petition that gave rise to the investigation ..., the final determination [from the investigation], or any previous review ... concerning the subject merchandise." SAA at 870, 1994 U.S.C.C.A.N. at 4199. Secondary information does not include information obtained from the subject segment, which is known as "primary information." See 19 U.S.C. § 1677e(c) ; see also Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319, 1324 (Fed.Cir.2010).

II. Administrative Proceedings

In July 2002, Commerce published in the Federal Register notice of the antidumping duty order covering the subject merchandise. See Polyethylene Terephthalate Film, Sheet, and Strip (PET Film) from Taiwan,

67 Fed.Reg. 44,174 (Dep't of Commerce July 1, 2002) (antidumping duty order), as corrected, 67 Fed.Reg. 46,566 (Dep't of Commerce July 15, 2002). Upon timely submitted requests, Commerce initiated the subject administrative review in August 2010. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Deferral of Initiation of Administrative Review, 75 Fed.Reg. 53,274, 53,275 (Dep't of Commerce Aug. 31, 2010) (initiation of review). The review covered three respondents, including Nan Ya and Shinkong Materials Technology Corporation ("Shinkong").⁴

See id. In December 2010, without providing a reason, Nan Ya informed Commerce that it would not participate in the review. S.A. 271–72. It subsequently submitted no information to Commerce.

Commerce issued the preliminary results of the review in August 2011. See Polyethlene Terephthalate Film, Sheet, and Strip from Taiwan, 76 Fed.Reg. 47,540 (Dep't of Commerce Aug. 5, 2011) (preliminary results of review). Because Commerce determined that Nan Ya failed to act to the best of its ability when it withheld information, and that it significantly impeded the proceeding, it applied an adverse inference to Nan Ya in selecting among the facts available. Id. at 47,544. In selecting among the adverse facts available, Commerce assigned a 99.31% rate to Nan Ya, which represented a transaction-specific rate that Commerce calculated for Nan Ya in the immediately-preceding review. Id.

In the Final Results, although Commerce continued to find it appropriate to apply adverse facts available to Nan Ya, it lowered the rate that it assigned to Nan Ya. Commerce determined that "data from the current [period of review] can form the basis for Nan Ya's [adverse facts available] rate in this review." S.A. 231 (footnote omitted). It relied upon the highest transaction-specific margin of 74.34% that it calculated for the other mandatory respondent in the review—Shinkong.⁵ S.A. 231. Commerce reviewed the underlying transaction that forms the basis of the 74.34% rate and found it non-aberrant because it "falls within a range of margins" and it was otherwise not unusual. S.A. 231 (footnote omitted). Commerce also observed that "the data from the most recent review in which Nan Ya participated show that [Commerce] calculated numerous margins for Nan Ya far above 74.34[%]," meaning that the 74.34% rate reflects prices at which Nan Ya could have sold the subject merchandise. S.A. 258. Commerce made these findings but did not corroborate Shinkong's information pursuant to 19 U.S.C. § 1677e(c), finding the corroboration requirement inapplicable because Shinkong's data reflected primary, rather than secondary, information. S.A. 233. Nan Ya subsequently appealed to the CIT.

III. CIT Proceedings

In February 2013, the CIT remanded to Commerce so that the agency could address...