83 F.Supp.3d 1345 (CIT 2015), 14-00092, Viet I-Mei Frozen Foods Co., Ltd. v. United States

Docket Nº:14-00092
Citation:83 F.Supp.3d 1345
Opinion Judge:Donald C. Pogue, Senior Judge:
Party Name:VIET I-MEI FROZEN FOODS CO., LTD., Plaintiff, v. UNITED STATES, Defendant
Attorney:No. 14-00092 Matthew R. Nicely and Alexandra B. Hess, Hughes Hubbard & Reed LLP, of Washington, DC, for the Plaintiff. Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the Defendant. Also on the brief were Joyce R....
Case Date:July 30, 2015
Court:Court of International Trade
 
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Page 1345

83 F.Supp.3d 1345 (CIT 2015)

VIET I-MEI FROZEN FOODS CO., LTD., Plaintiff,

v.

UNITED STATES, Defendant

No. 14-00092

United States Court of International Trade

July 30, 2015

Matthew R. Nicely and Alexandra B. Hess, Hughes Hubbard & Reed LLP, of Washington, DC, for the Plaintiff.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the Defendant. Also on the brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Mykhaylo Gryzlov, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Andrew W. Kentz, Jordan C. Kahn, and Nathaniel Maandig Rickard, Picard Kentz & Rowe LLP, of Washington, DC, for Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

OPINION

Donald C. Pogue, Senior Judge:

In this action, Plaintiff Viet I-Mei Frozen Foods Co., Ltd., successor in interest to Grobest & I-Mei Industrial (Vietnam) Co., Ltd. (hereinafter collectively referred to as " Grobest" ), challenges the U.S. Department of Commerce's (" Commerce" ) decision not to terminate a court-ordered re-examination of Grobest in the (reconducted) fourth administrative review of the antidumping duty order on certain frozen warmwater shrimp from the Socialist Republic of Vietnam (" Vietnam" ), and Commerce's consequent determination to establish an antidumping duty rate for Grobest using adverse facts available.1

The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),2 and 28 U.S.C. § 1581(c) (2012).

As explained below, because Commerce reasonably determined to continue its re-examination of Grobest, and because the agency properly used adverse facts available, based on the requisite factual findings (which are not contested here), Commerce's final results for this reconducted review with respect to Grobest are affirmed.

BACKGROUND

Grobest is a producer of frozen warmwater shrimp from Vietnam, which is subject to an antidumping duty order.3 In the fourth administrative review of that order, Grobest and the domestic shrimping industry separately requested that Grobest be reviewed.4 Commerce initiated the fourth review but, because the review covered 198 companies, the agency exercised its authority, pursuant to 19 U.S.C. § 1677f-1(c)(2)(B),5 to limit its individual examination to the two largest Vietnamese exporters/producers of subject merchandise by volume (the " mandatory respondents" ).6 Although Grobest was not selected as a mandatory respondent, it requested to be individually examined as a " voluntary respondent" pursuant to 19 U.S.C. § 1677m(a).7 Commerce denied this request. Accordingly, rather than calculating an antidumping duty rate for Grobest based on an individual examination of Grobest's own data, Commerce assigned to Grobest the 'all-others separate rate'8 for the period covered by this administrative review.9

Grobest successfully challenged Commerce's decision to deny it an individual dumping margin in this review.10 At the close of that litigation, this Court held that Commerce's refusal to review Grobest's voluntary submissions and establish an individual weighted average dumping margin for Grobest in this review was an abuse of the agency's discretion.11 The court therefore ordered Commerce to individually review Grobest as a voluntary respondent.12 With Grobest's consent,13 the United States requested and was granted entry of final judgment -- ordering Commerce to re-conduct its review of Grobest's dumping rate " by individually examining Grobest as a voluntary respondent" 14 -- so that this individual examination of Grobest may be " conducted under Commerce's administrative authority and not under the authority of the Court." 15

In accordance with this Court's judgment and order in Grobest II, Commerce initiated a proceeding to re-conduct its fourth administrative review of this antidumping duty order with respect to Grobest.16 Two months later, however, on December 12, 2012, Grobest submitted to Commerce a letter seeking " to withdraw Grobest's request for examination as a voluntary respondent in the fourth administrative review of the order on frozen warmwater shrimp from Vietnam," 17 and asking Commerce to " rescind its October 17, 2012 notice announcing that it would reconduct the 2008-2009 administrative review for Grobest." 18 Despite having consistently challenged Commerce's initial denial of Grobest's request for individual examination, despite having litigated this challenge throughout Grobest I and Grobest II, and despite having obtained the judgment in Grobest II ordering Commerce to reconduct this review and individually examine Grobest,19 Grobest maintained that " significant management, personnel and accounting changes that have occurred at [Grobest] since the period of review (which dates back to February 2008) [have made it such that] the administrative and legal costs of this examination are greater than the company wishes to incur at this time." 20 The domestic industry opposed Grobest's request to terminate the re-examination.21

Commerce declined to abort its re-examination of Grobest, and issued a supplemental questionnaire requiring Grobest to " address[] certain deficiencies" 22 discovered in its original questionnaire responses with regard to, inter alia, Grobest's reported quantity and value of subject merchandise sold to unaffiliated U.S. customers during the period of review.23 In the cover letter sent with this supplemental questionnaire, Commerce stated that a response from Grobest was required, in proper format, " no later than close of business January 29, 2013," 24 and warned that " [u]pon receipt of a response that is incomplete or deficient to the extent that [Commerce] determines it to be non-responsive[,] [Commerce] will not issue additional supplemental questionnaires but will use facts available," adding that " [i]f [Grobest] fail[s] to cooperate . . . by not acting to the best of [its] ability to comply with [Commerce's] request for information, [Commerce] may use information that is adverse to [Grobest's] interest in conducting its analysis." 25

On January 29, 2013 (i.e., the due date set for its response to Commerce's supplemental questionnaire), Grobest again requested that Commerce terminate the re-examination, without responding to Commerce's supplemental inquiries.26 Commerce acknowledged and denied Grobest's request, and again required that Grobest submit responses to Commerce's supplemental questionnaire, giving the company until close of business on February 13, 2013, to do so.27 But Grobest again refused to respond to Commerce's inquiries. Instead, on the due date set for its responsive submission, Grobest " reiterate[d] [its] proposal that [Commerce] discontinue examination of Grobest as a voluntary respondent in the fourth administrative review and maintain the Final Results for Grobest as originally issued," 28 again stating only that " the company is unable to continue with the examination of Grobest's voluntary responses due to the significant management, personnel and accounting changes that have occurred at [Grobest] since the period of review," 29 and that " [t]he administrative and legal costs of this examination are greater than the company wishes to incur at this time." 30

Responding to Grobest's refusal to cooperate with Commerce's requests for information, Commerce found that Grobest withheld information requested of it and impeded the proceeding, within the meaning of 19 U.S.C. § § 1677e(a)(2)(A) and (C),31 and concluded that Grobest failed to cooperate, within the meaning of 19 U.S.C. § 1677e(b),32 by not acting to the best of its ability to comply with Commerce's requests.33 Accordingly, the agency employed adverse inferences when selecting from among the facts otherwise available to establish Grobest's individual dumping margin for this proceeding.34 Explaining that its practice in this regard is to ensure that the dumping rate established for the non-cooperative respondent is " sufficiently adverse 'as to effectuate the statutory purpose of the adverse facts available rule to induce respondents to provide [Commerce] with complete and accurate information in a timely manner,'" 35 as well as to ensure " that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully," 36 Commerce assigned to Grobest a rate of 25.76 percent, which represents " the highest dumping margin on the record of any segment of this proceeding." 37 Commerce found that this rate " is appropriate for Grobest in that it is sufficient to ensure that Grobest does not benefit from failing to cooperate in [the reconducted] review by refusing to respond to [Commerce]'s request for complete information regarding its affiliations, sales of subject merchandise, and factors of production." 38

Grobest now challenges Commerce's decision to deny Grobest's request to terminate its individual examination as a voluntary respondent and reinstate the final results of the fourth review with respect to Grobest as originally conducted.39 Beyond characterizing its rate as " punitive," Grobest makes no argument as to the specific rate assigned to it in the reconducted review.40 Rather, Grobest contends solely that " Commerce exceeded its statutory authority when it refused to permit [Grobest] to withdraw [its] individual review request," 41 which " resulted in an impermissibly punitive" rate for Grobest.42

STANDARD OF REVIEW

The court upholds Commerce's antidumping determinations if they are in accordance with...

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