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Appeal from the United States Court of International Trade in No. 1:12-cv-00411-NT, Senior Judge Nicholas Tsoucalas.
YINGCHAO XIAO, Lee & Xiao, of San Marino, California, for plaintiff-appellant. With her on the brief was DOUGLAS CAMPAU.
JANE C. DEMPSEY, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant-appellee United States. With her on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES, JR., Assistant Director.
MICHAEL J. COURSEY, Kelley Drye & Warren LLP, of Washington, DC, for defendants-appellees American Honey Producers Association and the Sioux Honey Association. With him on the brief were R. ALAN LUBERDA and BENJAMIN BLASE CARYL.
Before WALLACH, TARANTO, and CHEN, Circuit Judges.
Wallach, Circuit Judge.
Appellant Dongtai Peak Honey Industry Co., Ltd. (" Dongtai Peak" ) appeals the decision of the United States Court of International Trade (" CIT" ) denying its Motion for Judgment on the Agency Record. See Dongtai Peak Honey Indus. Co. v. United States, 971 F.Supp.2d 1234 (Ct. Int'l Trade 2014). Because the United States Department of Commerce (" Commerce" ) properly exercised its discretion in denying Dongtai Peak's untimely filings, and because Commerce's decisions to treat Dongtai Peak as part of the China-wide entity and to impose a dumping margin based on adverse facts available were supported by substantial evidence and were in accordance with law, this court affirms.
In 2001, Commerce imposed an anti-dumping duty order on honey imported from the People's Republic of China (" China" ). Honey From the People's Republic of China, 66 Fed. Reg. 63,670 (Dep't of Commerce Dec. 10, 2001) (notice of amended final determination of sales at less than fair value and anti-dumping duty order) (the " Order" ). In January 2012, Commerce initiated the tenth administrative review of the Order for the period of review December 1, 2010, through November 30, 2011. Initiation of Antidumping & Countervailing Duty Administrative Reviews & Requests for Revocation in Part, 77 Fed. Reg. 4759 (Dep't of Commerce Jan. 31, 2012) (" Initiation " ). Dongtai Peak was named a respondent in this review. Id. at 4761.
As part of the review, on March 2, 2012, Commerce issued a non-market economy questionnaire (the " Questionnaire" ) to Dongtai Peak, which included Section A (General Information), with a deadline of March 23, 2012, and Sections C (Sales to the United States) and D (Factors of Production), with a deadline of April 8, 2012. Appellant timely filed a response to Section A of the Questionnaire, and filed its responses to Sections C and D after receiving a one-day extension of the deadline from Commerce. Because Appellant's extension request was received less than six minutes before the submission deadline for Sections C and D, in granting the request
Commerce stated: " To ensure that [Commerce] is fully able to consider requests of this nature, we advise Dongtai Peak to plan accordingly and file any future extension requests as soon as it suspects additional time may be necessary." J.A. 157.
On April 3, 2012, Commerce issued a Supplemental Section A Questionnaire (the " Supplemental Questionnaire" ) to address certain deficiencies in Dongtai Peak's original Section A response. The deadline to respond to the Supplemental Questionnaire was " COB [Close of Business], April 17, 2012." J.A. 158. However, Dongtai Peak failed to submit its response by this deadline. Instead, on April 19, 2012, Dongtai Peak filed an untimely request (the " April 19 Letter" ) to extend the deadline to April 27, 2012, claiming good cause for an extension existed because of the overlap with the deadline to file its responses to Sections C and D, a national holiday, and various issues with its translator, its United States-based attorneys, and its computers. In response, the American Honey Producers Association and Sioux Honey Association (" Petitioners" ) submitted an objection to the untimely extension request. On April 24, 2012, Appellant submitted a response to the objection, restating its claim that good cause existed for the extension. Then, on April 27, 2012, Dongtai Peak submitted a second request for an additional one-day extension of the deadline (the " April 27 Letter" ). Following the close of business on April 27, 2012, Appellant submitted its response to the Supplemental Questionnaire (the " Supplemental Response" ) without Commerce having granted the extension requests in the April 19 or April 27 Letters.
On May 22, 2012, Commerce denied Dongtai Peak's extension requests because " good cause [did] not exist . . . to extend retroactively its deadline." J.A. 190. Commerce noted although Appellant explained why it could not timely file its Supplemental Response, it " provided no explanation as to why it was unable to file its extension request in a timely manner prior to the deadline for its questionnaire response." J.A. 190. It also noted Dongtai Peak had " previously been cautioned with respect to late extension requests when it requested an extension of the deadline to file its Section C and D questionnaire responses five minutes before the deadline for that questionnaire response." J.A. 189. Commerce therefore removed Appellant's extension requests and its Supplemental Response from the official record.
Dongtai Peak requested reconsideration of this determination, but Commerce upheld its decision to deny the extension requests and to remove the requests and the Supplemental Response from the record in its Preliminary Results. Honey From the People's Republic of China, 77 Fed. Reg. 46,699, 46,701-02 (Dep't of Commerce Aug. 6, 2012) (" Preliminary Results " ). In doing so, Commerce again noted the April 19 Letter did not address Dongtai Peak's inability to file an extension request by the deadline, and stated the deadline was significant because Commerce had found Appellant's United States sales to be non-bona fide in prior reviews, and therefore needed time for a full analysis of the information sought in the Supplemental Questionnaire. Id. Accordingly, in the Preliminary Results, Commerce determined that without the Supplemental Response, the record lacked sufficient information to calculate a separate rate for Dongtai Peak, and therefore the company would be considered part of the China-wide entity. Id. at 46,702. In addition, Commerce determined the China-wide entity did not cooperate to the best of its ability during the review, and therefore Commerce relied entirely on adverse facts available (" AFA" ) to determine the dumping margin for the China-wide entity. Id.
Commerce selected a rate of $2.63 per kilogram based on the rate calculated for Anhui Native Produce Import & Export Corporation (" Anhui Native" ) during the sixth administrative review, which had also been assigned to the China-wide entity in the sixth and seventh administrative reviews. Id. at 46,703.
On November 26, 2012, the Final Results of the review were issued, upholding the Preliminary Results in their entirety. Administrative Review of Honey From the People's Republic of China, 77 Fed. Reg. 70,417 (Dep't of Commerce Nov. 26, 2012) (final results of anti-dumping duty administrative review) (" Final Results " ), and accompanying Issues & Decision Memorandum (Nov. 19, 2012) (J.A. 137-56) (" Issues & Dec. Mem." ).
In December 2012, Dongtai Peak filed an action in the CIT challenging several aspects of the Final Results, including: (1) the denial of its extension requests and the removal of those requests and the Supplemental Response from the record; (2) Commerce's decision to consider Dongtai Peak part of the China-wide entity; (3) Commerce's use of AFA to calculate the dumping margin for the China-wide rate; and (4) the $2.63 per ...