POGUE, Chief Judge:
This is a consolidated action seeking review of determinations made by the United States Department of Commerce ("Commerce" or "the Department") in the fourth administrative review of the antidumping duty order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam ("Vietnam").
Specifically, Plaintiffs Grobest, Nha Trang, and Cam Ranh collectively challenge Commerce's decision to use zeroing in calculating dumping margins during reviews but not during investigations. These Plaintiffs also challenge the exclusion of Bangladesh-to-Bangladesh import data from surrogate value calculations and the use of multi-country averaging in determining surrogate labor wage rates.
Defendant-Intervenor AHSTAC challenges Commerce's exclusion of Fine Foods Ltd.'s 2008-2009 financial statement and Gemini Sea Food Ltd.'s loading and unloading expenses when calculating surrogate financial ratios.
Plaintiff Grobest also challenges Commerce's denial of its request for revocation, and Consolidated Plaintiff Amanda Foods challenges Commerce's rejection of its separate rate certification on the basis of untimely filing.
The court has jurisdiction pursuant to § 516A(a)(2)(b)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006)
The court discusses below each of the seven issues raised for review. The court concludes, using the following outline, that: (I) Commerce must provide further explanation for its use of zeroing in antidumping reviews but not investigations, consistent with recent decisions of the Court of Appeals for the Federal Circuit; (II) Commerce's decisions to exclude the Bangladesh-to-Bangladesh data from surrogate value calculations, to employ multi-country averaging to determine surrogate labor wage rates, and to exclude both Fine Foods' 2008-2009 financial statement and Gemini's loading and unloading expenses
Accordingly, the court will remand the Final Results to Commerce for reconsideration and redetermination consistent with this opinion.
The following background information is relevant to the seven issues before the court.
When reviewing the Department's decisions made in administrative reviews of antidumping duty orders, the Court "shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).
Where, as here, Commerce and the International Trade Commission determine
When calculating weighted average dumping margins, Commerce may, under the statute, employ either of two methodologies: zeroing or offsetting. Timken Co. v. United States, 354 F.3d 1334, 1341-45 (Fed.Cir.2004) (holding that 19 U.S.C. § 1677(35) is ambiguous and that zeroing is a reasonable interpretation); U.S. Steel Corp. v. United States, 621 F.3d 1351, 1360-63 (Fed.Cir.2010) (holding that 19 U.S.C. § 1677(35) is ambiguous and that offsetting is also a reasonable interpretation). Zeroing is the practice of "treat[ing] transactions [or sales] that generate `negative' dumping margins (i.e., a dumping margin with a value less than zero) as if they were zero." Timken, 354 F.3d at 1338. Under this approach, only sales at less than normal value contribute to the calculation of the dumping margin. In contrast, when using offsetting, "sales made at less than fair value are offset by those made above fair value. This means that some of the dumping margins used to calculate a weighted-average dumping margin will be negative." U.S. Steel, 621 F.3d at 1355.
Historically, Commerce has employed zeroing methodology in both antidumping duty investigations and reviews. See Timken, 354 F.3d at 1338 (reviewing use of zeroing in an antidumping duty administrative review); Corus Staal BV v. Dep't of Commerce, 395 F.3d 1343 (Fed.Cir.2005) (reviewing use of zeroing in an antidumping duty investigation). However, in 2005, the European Community successfully challenged Commerce's use of zeroing, in investigations, before the World Trade Organization ("WTO"), a decision upheld by the WTO's Appellate Body in 2006. U.S. Steel, 621 F.3d at 1354 (citations omitted). In response to the adverse ruling before the WTO, Commerce changed its methodology in antidumping investigations, choosing to use offsetting instead of zeroing, id. at 1354-55, but continued to use zeroing in other segments of antidumping proceedings, including administrative reviews, id. at 1355 n. 2.
Plaintiffs in this case challenge Commerce's use of zeroing, in the fourth administrative review, as an impermissibly
The issue has currency because of two recent decisions from the Court of Appeals for the Federal Circuit, Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed.Cir.2011) and JTEKT Corp. v. United States, 642 F.3d 1378 (Fed.Cir.2011), which have addressed Commerce's inconsistent interpretations of 19 U.S.C. § 1677(35). Dongbu held that "[i]n the absence of sufficient reasons for interpreting the same statutory provision inconsistently, Commerce's action is arbitrary." 635 F.3d at 1372-73. Subsequently, JTEKT concluded that "[w]hile Commerce did point to differences between investigations and administrative reviews, it failed to address the relevant question—why is it a reasonable interpretation of the statute to zero in administrative reviews, but not in investigations?" 642 F.3d at 1384. In light of these decisions, the court will remand this issue to Commerce for reconsideration and redetermination consistent with now prevailing law.
In order to determine a dumping margin, as discussed above, Commerce must first establish the normal value of the subject merchandise. However, if the merchandise is exported from a nonmarket economy ("NME") country,
Though the statute does not define "best available information" it does require Commerce to "utilize, to the extent possible, the prices or costs of factors of production in one or more [surrogate] market economy countries that are (A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of comparable merchandise." § 1677b(c)(4).
Commerce has wide discretion in selecting surrogate value data. "[T]he process of constructing foreign market value for a producer in a nonmarket economy country [using surrogate values] is difficult and necessarily imprecise[,]" and, "[w]hile § 1677b(c) provides guidelines to assist Commerce in this process, this section also accords Commerce wide discretion in the valuation of factors of production in the application of those guidelines." Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed.Cir.1999) (citation omitted) (internal quotation marks omitted). The court will not reverse Commerce's surrogate value decision or data choice because an alternative inference or conclusion could be drawn from the evidence. Daewoo Elec. Co. v. Int'l Union of Elec., Elec., Tech., Salaried & Mach. Workers, 6 F.3d 1511, 1520 (Fed.Cir.1993) ("[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (quoting Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984))). "[The] court's duty is `not to evaluate whether the information Commerce used was the best available, but rather whether a reasonable mind could conclude that Commerce chose the best available information.'" Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333, 1341 (Fed.Cir.2011) (quoting Goldlink Indus. Co. v. United States, 30 CIT 616, 619, 431 F.Supp.2d 1323, 1327 (2006)); see also Peer Bearing Co.-Changshan v. United States, 27 CIT 1763, 1770, 298 F.Supp.2d 1328, 1336 (2003) ("The Court's role . . . is not to evaluate whether the information Commerce used was the best available, but rather whether Commerce's choice of information is reasonable.").
As noted above, Plaintiffs and Defendant-Intervenor challenge several of Commerce's decisions or data choices concerning surrogate values, surrogate financial ratios, and surrogate labor wage rates. These determinations are discussed individually below.
As noted above, Bangladesh was chosen as the surrogate market economy
Plaintiffs argue that Commerce erred in excluding the Bangladesh-to-Bangladesh data because the result was to distort the values of the affected factors of production.
Commerce contends, as it did at the administrative level, that the nature of the Bangladesh-to-Bangladesh data is uncertain, which it believes is a sound basis for excluding the data as not the best available information. Def.'s Resp. Br. 28-30; I & D Mem. Cmt. 6 at 21. Commerce further contends that the data should be excluded without recourse to its prior enumerated categories because the Bangladesh-to-Bangladesh data is, by definition, not import data. Def.'s Resp. Br. 29.
On this record, Commerce's decision is reasonable. As Commerce noted in the Final Results, "[t]here is no record evidence as to whether the goods classified as imports from Bangladesh into Bangladesh are re-importations, another category of unspecified imports, or the result of an error in reporting." I & D Mem. Cmt. 6 at 21. Without a clear explanation of the source or nature of this data, it was reasonable for Commerce to exclude the Bangladesh-to-Bangladesh data as potentially aberrational. See Guangdong Chem. Imp. & Exp. Corp. v. United States, 30 CIT 1412, 1419, 460 F.Supp.2d 1365, 1370-71 (2006) (finding that lack of information on
Plaintiffs point to the increased values for factors of production, where Bangladesh-to-Bangladesh data was excluded, and note that by excluding that data only a fraction of total imports remained from which a value could be derived. However, the Plaintiffs' argument does not provide a basis for finding that the Bangladesh-to-Bangladesh data was reliable or the best available. The exclusion of the data may have changed the results, but such a change is not, alone, a basis for the court to insist that the data is the best available. Rather, Plaintiffs' argument assumes that because the resulting values are inconsistent with those generated in prior reviews, inclusion of the Bangladesh-to-Bangladesh data is the best available information. Plaintiff's assumption is insufficient to rebut Commerce's reasoned analysis that, without knowing the nature of the data, Commerce could not know the value of the data. See Zhejiang, 652 F.3d at 1342 (finding that plaintiff's assumption that one data set is correct is not sufficient to challenge Commerce's choice of the opposing data set). Furthermore, Plaintiffs are not now in a position to argue that Commerce should have further investigated the ComTrade data, when Plaintiffs could have assumed that responsibility themselves and placed such further evidence on the record. See QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.Cir.2011) ("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.'" (alteration in original) (quoting Tianjin Mach. Imp. & Exp. Corp. v. United States, 16 CIT 931, 936, 806 F.Supp. 1008, 1015 (1992))).
After Commerce determines a surrogate value for the factors of production, there "shall be added an amount for general expenses and profit plus the cost of containers, coverings, and other expenses." See 19 U.S.C. § 1677b(c)(1)(B). These expenses include factory overhead; selling, general, and administrative expenses ("SG & A"); and profit. To value factory overhead, SG & A, and profit, Commerce uses financial ratios derived from "non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country." 19 C.F.R. § 351.408(c)(4) (2011)
In this review, Commerce received financial statements for five Bangladeshi companies and determined that only two, Apex Foods Ltd. ("Apex") and Gemini Sea Food Ltd. ("Gemini"), represented "the best available information." I & D Mem. Cmt. 3 at 10. Defendant-Intervenor AHSTAC challenges both Commerce's rejection of the 2008-2009 financial statement from Fine Foods Ltd. ("Fine Foods") and the classification of loading and unloading expenses listed on Gemini's financial statement. Def.-Intervenor's Mem. Supp. Mot. J. Agency R. 7-17, ECF No. 65 ("Def.-Intervenor's Br.").
Commerce rejected the Fine Foods financial statement as not the best available information because "[a] careful review of the Fine Foods financial statement shows that Fine Foods is a farmer of fish and fish products, and is not a processor of shrimp." I & D Mem. Cmt. 3.D at 15. AHSTAC argues that because the Fine Foods financial statement lists "processing fish" among its main activities and shrimp among its turnover, the conclusion must be drawn that Fine Foods processes shrimp. Def.-Intervenor's Br. 9-11; see also Fine Foods Ltd. Annual Report 2009, ¶ 1.3, at 17, ¶ 21 at 26, reprinted in Letter from Picard Kentz & Rowe LLP to Secretary of Commerce (Apr. 9, 2010), Admin. R. Pub. Doc. 195, attach 3 ("Fine Foods Financial Statement").
Even assuming, arguendo, that AHSTAC's conclusions may reasonably be drawn from the Fine Foods financial statement, it is equally reasonable to draw the conclusion that Fine Foods does not process shrimp. To arrive at either conclusion, Commerce must have drawn an inference from the record: either shrimp, being listed in turnover alongside fish, are considered fish when Fine Foods states that it "processes fish," or, because Fine Foods does not state that it processes shrimp, shrimp are treated differently from fish. There is nothing definitive in the financial statement to indicate that Fine Foods is or is not a processor of shrimp. Because two alternative inferences could reasonably be drawn from the record, the court defers to Commerce's decision. Daewoo, 6 F.3d at 1520.
In addition, Commerce's rejection of the Fine Foods financial statement does not rest solely on whether Fine Foods processes shrimp. Assuming, arguendo, that Fine Foods is a processor of shrimp, it must also be assumed that Fine Foods is a farmer of shrimp—as its financial statement lists production and breeding among its main activities.
In the Final Results, Commerce found that, "based on the limited description in Gemini's financial statement, loading and unloading expenses are best considered as movement expenses and thus should be excluded from the surrogate financial ratio calculation." Id. Cmt. 3.A at 11.
In its first line of argument, AHSTAC contends that the record does not contain substantial evidence supporting Commerce's decision to consider the line item for loading and unloading as movement expenses appropriate for exclusion from the surrogate financial ratio calculation. Def.-Intervenor's Br. 13-14. Rather, AHSTAC contends that these loading and unloading expenses are related to the movement of goods and materials within "production facilities or warehouses." Id. at 14.
AHSTAC does not, however, provide any compelling evidence supporting its interpretation of the expense in question or establishing that Commerce's conclusion is unreasonable. Rather, AHSTAC's argument before Commerce and again before this court is only that "the loading and unloading expenses are listed as a line item in the Gemini Financial Statement next to a line item for depreciation support[ing] their classification as SG & A, given that that [sic] Commerce calculates SG & A including line items for depreciation." Id. at 13-14; see AHSTAC Rebuttal Br., Admin. R. Pub. Doc. 209, at 6; see also Gemini Sea Food Ltd. Annual Report 2007-2008 at 29, reprinted in Surrogate Value Memo, exhibit 9 ("Gemini Annual Report"). The court finds no reason, based on the record evidence, to infer from the adjacent placement of these line items any relationship or correlation between them.
Even more importantly, Commerce's determination, based on its expertise and prior practice, is reasonable. In their Case Brief to Commerce, the Vietnamese respondents pointed out that the Department excluded loading and unloading expenses from the surrogate financial ratio in the third administrative review of this Order. Vietnamese Resp'ts' Case Br., Admin. R. Pub. Doc. 206, at 12; I & D Mem. Cmt. 3.A. at 11. Similarly, Commerce noted in the Final Results that its practice is to exclude movement expenses from surrogate financial ratios in order to avoid double-counting. I & D Mem. Cmt. 3.A at 11; see also Fuyao Glass Indus. Grp. v. United States, 27 CIT 1892, 1909, 2003 WL 22996904 (2003) (remanding to Commerce to demonstrate that valuing water as a
This analysis is similar to that affirmed in Hebei Metals & Minerals Imp. & Exp. Corp. v. United States, 29 CIT 288, 366 F.Supp.2d 1264 (2005). In Hebei, Commerce determined on remand that "`internal consumption' represented only inter-facility transfers, which would be double-counted if not removed from the expense values in the surrogate ratios' denominators." Id. at 304, 366 F.Supp.2d at 1277. Though the plaintiffs attacked Commerce's determination as "unsupported speculation," the Court held that Commerce, relying on prior investigations where it deducted internal consumption, drew reasonable inferences from the record. Id. at 304-05, 366 F.Supp.2d at 1278-79. In this case, Commerce also drew a reasonable inference from the record evidence, using its past experience as a guide, that the loading and unloading expenses in the Gemini financial statement were movement expenses that should be excluded from the surrogate financial ratios to avoid impermissible double-counting.
As noted above, AHSTAC argues that Commerce insufficiently explained its decision to exclude loading and unloading expenses from the surrogate financial ratios, contending that "Commerce merely referenced the `limited description' of these expenses and thereafter stated its general approach to calculating surrogate financial ratios." Def.-Intervenor's Br. 15. However, AHSTAC ignores the discussion in the Final Results of Commerce's policy of avoiding double-counting and its belief, based on prior experience, that loading and unloading expenses are best classified as movement expenses to avoid such double-counting. Though Commerce's discussion may not be as thorough as AHSTAC would like, the agency's "decisional path is discernable," and a more "explicit explanation. . . is not necessary." AL Tech Specialty Steel Corp. v. United States, 28 CIT 1468, 1489, 2004 WL 2011471 (2004) (citing Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369-70 (Fed.Cir.1998) (internal quotation marks omitted)).
As noted above, when valuing most factors of production Commerce analyzes
Dorbest was decided on May 14, 2010, following the Preliminary Results but prior to the Final Results in the fourth administrative review at issue here. In light of the decision of the Court of Appeals in Dorbest, Commerce sought comments from interested parties on a new methodology for calculating surrogate wage rates in the instant review. Final Results, 75 Fed. Reg. at 47,772. After considering the comments, Commerce decided to value surrogate wage rates "by averaging earnings and/or wages in countries that are economically comparable to Vietnam and that are significant producers of comparable merchandise." Id.; see also I & D Mem. Cmt. 9 at 27-31. Among the methodologies Commerce rejected was a proposal by the Vietnamese respondents to "value labor using wage data specific to the shrimp processing industry in Bangladesh taken from the Bangladesh Bureau of Statistics' 2007 Wage Survey." I & D Mem. Cmt. 9 at 26.
Plaintiffs now contend that it was error for Commerce to use an averaging methodology that uses data from multiple countries, rather than using the industry specific data on shrimp processing wages in Bangladesh, the surrogate country used in valuing other factors of production. Pls.' Br. 27. Plaintiffs argue that the Bangladesh data is the "best available information," because it is the most industry specific data on the record, and that such specific data is required by the statute and relevant case law. Id. at 31-33. Commerce maintains that it has broad discretion to determine what is the best available information, and that its decision—that "reliance on wage data from a single country [is] unreliable and arbitrary"—is a reasonable determination. I & D Mem. Cmt. 9 at 27.
These competing positions require the court to decide whether the only reasonable interpretation of the statute is that industry specificity trumps other concerns when considering what constitutes best available information under 19 U.S.C. § 1677b. The court answers this question in the negative.
First, the plain language of the statute does not require that the best available information include industry specific information when such is available.
See Nation Ford, 166 F.3d at 1377 (citation omitted) (internal quotation marks omitted).
While § 1677b(c)(3) directs Commerce to obtain values for the "factors of production utilized in producing [the subject] merchandise," § 1677b(c)(4) specifies that these values are, "to the extent possible," to come from "market economy countries that are significant producers of comparable merchandise." Assuming that by using the phrase "comparable merchandise," Congress intended Commerce to consider factors of production for industries in the surrogate country or countries as similar as possible to those in the NME, it unduly strains the language to hold that specificity is the sole touchstone of the analysis, to the exclusion of such factors as data stability and reliability.
Second, contrary to Plaintiffs' assertion, the legacy of Dorbest and this Court's decision in Allied Pac. Food (Dalian) Co. v. United States, ___ CIT ___, 587 F.Supp.2d 1330 (2008), is neither that "the statute contains no exception for how the labor factor of production should be selected," nor that "the pursuit of the best available information requires Commerce to apply to the selection of labor surrogate values the same selection criteria it applies when selecting other surrogate values." Pls.' Br. 32. Plaintiffs read both decisions too narrowly and would constrain Commerce in an area where the Department has broad discretion. See Nation Ford, 166 F.3d at 1377. Contrary to Plaintiffs' reading, in Dorbest and Allied Pac., the Court of Appeals and this Court, respectively, held specifically that 19 C.F.R. § 351.408(c)(3) was contrary to 19 U.S.C. § 1677b(c)(4) because it required the use of data that was prohibited by the statute. Dorbest, 604 F.3d at 1372; Allied Pac., ___ CIT at ___, 587 F.Supp.2d at 1357-61.
Dorbest held that, pursuant to § 1677b(c)(4), Commerce's regulation employing regression analysis was overbroad because it included non-comparable countries. Dorbest, 604 F.3d at 1372-73. Dorbest did not hold that the regulation lacked industry specificity, nor did it discuss the idea of industry specificity. Id. at 1371-72. By invalidating § 351.408(c)(3), Dorbest required that any new methodology must comport with the statute by limiting itself to countries that were of comparable economic development and significant producers of comparable merchandise. Id.
In Allied Pac., this Court did endorse the use of industry specific data.
Third, Commerce's preference for industry-specific data does not necessarily outweigh its preference for labor data from multiple countries. Plaintiffs correctly note that Commerce has expressed a preference for industry-specific data. See Pls.' Br. 29-30. However, Commerce also has a long-standing policy of favoring data from multiple countries when calculating surrogate wage rates. I & D Mem. Cmt. 9 at 28 ("[T]he Department maintains its longstanding position that, even when not employing a regression methodology, more data are still better than less data for purposes of valuing labor."). Commerce, in this case, chose to use data from multiple countries over industry-specific data because it believed that this led to more accurate values. Def.'s Resp. Br. 34. Such a result is not inconsistent with Commerce's stated policies.
It follows that the language of the statute, the relevant case law, and the agency's established methodologies do not support the proposition that a predominating preference for industry-specificity is the only reasonable interpretation of the statute. See Shandong Rongxin Imp. & Exp. Co. v. United States, ___ CIT ___, 774 F.Supp.2d 1307, 1314 (2011). Furthermore, Commerce's decision on this issue was reasonable. The court accepts, as does Commerce, that industry-specificity may add accuracy to data used to calculate surrogate values. However, Commerce has also repeatedly pointed out the discrepancies that exist between wages and gross national income ("GNI"), noting in the Final Results that:
I & D Mem. Cmt. 9 at 27-28.
In this case, Commerce had industry-specific data for one country, Bangladesh. Id. at 24-27. With industry-specific data for only one country, Commerce was faced with making a choice between specificity and accounting for wage rate variance by averaging data from as many countries as possible. It chose the latter. A reasonable mind could determine that Commerce chose the best available information, see Zhejiang, 652 F.3d at 1341; see also Shandong, ___ CIT at ___, 774 F.Supp.2d at 1314, and the court will not upset Commerce's reasonable choice. Zhejiang, 652 F.3d at 1341.
Finally, the court does not find, as Plaintiffs suggest in their reply brief, that Commerce's subsequent decision—to use, in future reviews, wage rate data from a single surrogate country—is a basis for finding unreasonable the decision to use multi-country averaging in this review. Pls.' Reply Mem. Supp. Mot. J. Agency R. 7-8, ECF No. 95 ("Pls.' Reply Br."). The court recognizes that, going forward, Commerce has adopted a policy similar to that advocated by Plaintiffs in this review. See Antidumping Methodologies in Proceedings Involving Non-Market Economies: Valuing the Factor of Production: Labor, 76 Fed.Reg. 36,092, 36,094 (Dep't Commerce
Furthermore, Commerce's decision to move away from multi-country averaging was premised, in large part, on the intervening decision in Shandong, where this Court held that because 19 U.S.C. § 1677b(c)(4) requires that surrogate countries be significant producers of comparable merchandise, Commerce could not use data including countries which "almost certainly have no domestic production." Shandong, ___ CIT at ___, 774 F.Supp.2d at 1316.
Plaintiff Grobest contends that Commerce improperly denied its request for revocation on the grounds that it was not reviewed as a mandatory respondent.
Grobest's first and second arguments are addressed by the Court's recent decision in Amanda Foods (Vietnam) Ltd. v. United States, 35 CIT ___, 807 F.Supp.2d 1332, 2011 WL 6189480 (Dec. 14, 2011), which reviewed the third administrative review of this Order. The third issue, Grobest's request for voluntary respondent status, was not addressed in Amanda Foods because the plaintiff in that case did not seek voluntary respondent status. Id. at 28.
Regarding Grobest's first argument, the court notes, as discussed at length in Amanda Foods, that neither the statutes nor the regulations relevant to administrative review and revocation of antidumping duty orders require the Department to initiate an individual review upon request for revocation. See Id. at 21-22. In Amanda Foods, the Court held reasonable Commerce's interpretation of 19 U.S.C. § 1675(d)(1), which requires an individual review under § 1675(a) or (b) (i.e., in an administrative review or a changed circumstances review) as a prerequisite to revocation. Id. at 13-18. It follows, that it is also a reasonable interpretation of the statute for Commerce to conclude that when the number of respondents is limited under § 1677f-1(c)(2) for the purpose of review, respondents who are not selected for individual review, whether mandatory or voluntary, are ineligible for revocation. Id. Furthermore, it is reasonable for the Department to interpret its regulations, found at 19 C.F.R. § 351.222, as procedures for conducting a revocation when a respondent has been selected for individual review. Id. at 18-22. This interpretation is consistent with both the regulatory language and the statutory structure. Id. Because neither 19 U.S.C. § 1675(d) nor 19 C.F.R. § 351.222 requires a separate review for the purposes of revocation, the court finds Grobest's appeal to these provisions unavailing.
The court also finds Grobest's second argument, that Commerce should have applied the Flowers procedure, unavailing. As the court articulated in Amanda Foods, the procedure announced in Flowers is not binding on Commerce. Id. at 27-28. The Flowers procedure was never implemented in practice, nor has Commerce subsequently relied upon this procedure to govern a review. Id. Furthermore, Commerce has "in practice, changed its policy to rely instead on the voluntary review process in order to achieve the objectives stated in Flowers...." Id. Given this history, the court finds that the Flowers procedure is not a precedential agency policy.
Thus, the court turns to Grobest's third argument, which was not considered in Amanda Foods. Grobest argues that it should have been reviewed as a voluntary respondent, pursuant to 19 U.S.C. § 1677m(a),
Commerce's determination fails to comply with § 1677m(a), which requires that Commerce separately determine whether reviewing the voluntary respondents "would be unduly burdensome and inhibit the timely completion of the investigation." Commerce's determination is, therefore, an unreasonable interpretation of the statute because it violates the well-established principle that, where possible, the court should give effect to all parts of the statute. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ("A court must ... interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole." (citations omitted) (internal quotation marks omitted)).
Contrary to this principle of statutory construction, Commerce's interpretation of § 1677m(a) renders that provision meaningless. Commerce argues that when it limits the number of mandatory respondents under § 1677f-1(c)(2), it need not consider any voluntary respondents under § 1677m(a) because it has already determined the number of respondents that it can review (in this case two). Def.'s Resp. Br. 18. But this argument conflates the two statutory provisions and renders § 1677m(a) a dead letter. Though § 1677m(a) is written to have effect only when Commerce "has, under 1677f-1(c)(2)... limited the number of exporters or producers examined," Commerce's interpretation would mean that § 1677m(a) review of voluntary respondents is already curtailed once a § 1677f-1(c)(2) decision to limit the number of respondents is made.
19 U.S.C. § 1677m(a) (emphasis added). Contrary to Commerce's view that the statute contains a discretionary grant of authority to review voluntary respondents if such review is practical, the statute plainly requires Commerce to conduct individual reviews unless such reviews would be unduly burdensome and inhibit the timely completion of the investigation.
Finally, Commerce ignores the separate standards set out in §§ 1677f-1(c)(2) and 1677m(a). Where § 1677f-1(c)(2) permits Commerce to limit the number of mandatory respondents "[i]f it is not practicable to make individual weighted average dumping margin determinations," § 1677m(a) sets a higher standard, requiring review of voluntary respondents unless such review "would be unduly burdensome and inhibit the timely completion of the investigation." The two, distinct standards call for separate determinations, and the latter determination, pursuant to § 1677m(a), sets a higher threshold of agency burden before the requirement of individual review can be avoided.
Arguing to the contrary, Commerce relies on this Court's opinion in Longkou Haimeng Mach. Co. v. United States, ___ CIT ___, 581 F.Supp.2d 1344 (2008), for the proposition that Commerce may choose not to review voluntary respondents once it has limited the number of mandatory respondents it will review. Def.'s Resp. Br. 20. Commerce is correct that in Longkou the Court held that Commerce has exclusive authority to limit the number of respondents it examines, and that it may limit the number of respondents solely to mandatory respondents. Longkou, ___ CIT at ___, 581 F.Supp.2d at 1352. In other words, Commerce is not absolutely required to review voluntary respondents, as the exception clause at § 1677m(a)(2) makes clear. However, Longkou, does not stand for the proposition that Commerce's determination under § 1677f-1(c)(2) is effective in determining whether it will review voluntary respondents.
Thus, the court finds that Congress has spoken directly to the issue of whether Commerce's determination under § 1677f-1(c)(2) controls its decision to review voluntary respondents under § 1677m(a). See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Congress intended for respondents to have the opportunity to seek voluntary respondent status, without having such efforts foreclosed by the Department's determination under § 1677f-1(c)(2), the very decision that initiates the § 1677m(a) process. Thus, in order for § 1677m(a) to be meaningful, it must be read as requiring Commerce to make an independent determination of whether it can review the voluntary respondents without such review being unduly burdensome and inhibiting the timely completion of the investigation.
For these reasons, Commerce's determination will be remanded.
In antidumping proceedings concerning NME countries, such as Vietnam, Commerce presumes that all exporters and producers in the country are subject to government control unless the exporter or producer rebuts this presumption by showing de jure and de facto independence from government control. See Amanda Foods (Vietnam) Ltd. v. United States, ___ CIT ___, 647 F.Supp.2d 1368, 1374 n. 9 (2009) (citation omitted).
Amanda Foods received separate-rate status based on its SRA in the initial investigation,
The law applicable to this issue recognizes that Commerce has discretion both to set deadlines and to enforce those deadlines by rejecting untimely filings. See NTN Bearing Corp. v. United States, 74 F.3d 1204, 1206-07 (Fed.Cir.1995); see also Yantai Timken Co. v. United States, 31 CIT 1741, 1755, 521 F.Supp.2d 1356, 1371 (2007) ("In order for Commerce to fulfill its mandate to administer the antidumping duty law, including its obligation to calculate accurate dumping margins, it must be permitted to enforce the time frame provided in its regulations."). However, Commerce's discretion in this regard is not absolute. NTN Bearing, 74 F.3d at 1207 ("[A] regulation which is not required by statute may, in appropriate circumstances, be waived and must be waived where failure to do so would amount to an abuse of discretion."); see also Fischer S.A. Comercio, Industria and Agricultura v. United States, ___ CIT ___, 700 F.Supp.2d 1364, 1375-77 (2010).
When considering whether Commerce's rejection of an untimely filing amounts to an abuse of discretion, the court is guided first by the remedial, and not punitive, purpose of the antidumping statute, Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103-04 (Fed.Cir. 1990), and the statute's goal of determining margins "as accurately as possible," Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990). The court also weighs "the burden imposed upon the agency by accepting the late submission," Usinor Sacilor v. United States, 18 CIT 1155, 1164, 872 F.Supp. 1000, 1008 (1994), and "the need for finality at the final results stage," Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed.Cir.2006). Thus, while deferring to Commerce's necessary discretion to set and enforce its deadlines, the court will review on a case-by-case basis whether the interests of accuracy and fairness outweigh the burden placed on the Department and the interest in finality.
The court's analysis of this issue is necessarily case specific. On the facts of this case, Commerce abused its discretion
As noted above, the court must weigh the interests in accuracy and fairness against the burden placed on the Department. Amanda Foods argues at length that consideration of SRCs is not a burdensome process.
Consol. Pl.'s Mem. Supp. Mot. J. Agency R. 17, ECF No. 63 ("Consol. Pl.'s Br."). Commerce responds that Amanda Foods' argument is entirely speculative regarding how Commerce would react to the SRC. "Commerce cannot speculate about how it would have reacted to the information in the certification because Commerce rejected it as untimely. Thus, Amanda Foods' arguments that Commerce would not have spent much time reviewing the certification fail because they depend upon the substance of the untimely certification Commerce rejected." Def.'s Resp. Br. 41.
The court must reject both lines of argument as overbroad. The court cannot, as Amanda Foods' suggests, assume that the
First, though the submission was ninety-five days late, it arrived early in the review process: more than seven months before Commerce released the preliminary results
The court therefore finds that in this case: (1) the margin assigned to Amanda Foods was likely inaccurate and disproportionate; (2) Amanda Foods was diligent in correcting its submission; (3) Amanda Foods' submission was early enough in the proceeding to minimize concerns for finality; and (4) the burden on Commerce in considering the late-filed SRC would likely be minimal given that only one SRC was filed late, the late-filed SRC appears to maintain the status quo, and no follow-up was conducted with regard to other separate-rate requests. In light of these findings, the court holds that in this case, the interests in fairness and accuracy outweigh the burden upon Commerce; therefore, Commerce's rejection of Amanda Foods' late-filed submission was an abuse of discretion. In light of the foregoing, this issue is remanded.
For all of the foregoing reasons, the Department's Final Results, 75 Fed.Reg. at 47,771, are REMANDED to the agency
Upon remand, Commerce will provide further explanation or reconsideration of its zeroing policy in administrative reviews consistent with the Federal Circuit's opinions in Dongbu and JTEKT; will review the voluntary respondents or provide an explanation consistent with the statutes, regulations, and Commerce's policies; and will accept Amanda Foods' separate-rate certification, conduct the necessary review of the certification, and reconsider Amanda Foods' duty rate as appropriate.
All other determinations challenged in this case are AFFIRMED.
Commerce shall have until March 16, 2012 to complete and file its remand redetermination. Plaintiffs and Defendant-Intervenors shall have until March 30, 2012 to file comments. Plaintiffs, Defendant, and Defendant-Intervenors shall have until April 13, 2012 to file any reply.
It is
Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 74 Fed.Reg. 47,191 (Dep't Commerce Sept. 15, 2009) (final results and final partial rescission of antidumping duty administrative review) ("AR3 Final Results"), and accompanying Issues & Decision Memorandum, A-552-802, ARP 07-08 (Sept. 8, 2009) Cmt. 7 at 33-34 ("AR3 I & D Mem.") (adopted in Final Results, 74 Fed. Reg. at 47, 191-92).
Id. at 1358.
The court finds this interpretation of the statute unreasonable. Such an interpretation fails to address the bifurcated nature of the two statutory provisions at issue, §§ 1677f-1(c)(2) and 1677m(a), as discussed above. Furthermore, such an interpretation surely discourages voluntary respondents because it confines the opportunity for voluntary respondent review to the irregular situation where a mandatory respondent is not reviewed. Such discouragement is contrary to the expressed intent of Congress, which noted in the Statement of Administrative Action for the Uruguay Round Agreements Act that "Commerce, consistent with Article 6.10.2 of the Agreement will not discourage voluntary responses and will endeavor to investigate all firms that voluntarily provide timely responses in the form required...." Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201. To limit voluntary respondents through § 1677f-1(c)(2) is to foreclose the review under § 1677m(a) barring the unexpected and irregular.
