Ad Hoc Shrimp Trade Action Committee v. United States

Citation992 F.Supp.2d 1302
Decision Date27 May 2014
Docket NumberCourt No. 12–00290.,Slip Op. 14–57.
PartiesAD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

OPINION TEXT STARTS HERE

Recognized as Invalid

19 C.F.R. § 351.408(c)(3)Andrew W. Kentz, Jordan C. Kahn, Nathaniel Maandig Rickard, and Nathan W. Cunningham, Picard Kentz & Rowe 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 Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Melissa M. Brewer, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION

POGUE, Chief Judge:

This action arises from the sixth administrative review by the United States Departmentof Commerce (Commerce) of the antidumping duty order on certain frozen warmwater shrimp from the People's Republic of China (“PRC” or “China”).2 Plaintiff Ad Hoc Shrimp Trade Action Committee (AHSTAC)—an association of domestic warmwater shrimp producers that participated in this review 3—challenges Commerce's determinations to I) limit its examination to two mandatory respondents; II) rely exclusively on certain entry data obtained from United States Customs and Border Protection (CBP) to make relative sales volume determinations when selecting respondents for individual review; and III) use data from a single surrogate country to value the labor factor of production when calculating normal values.4

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) (2006), 5 and 28 U.S.C. § 1581(c) (2006).

As explained below, Commerce's determinations to limit its examination of respondents pursuant to 19 U.S.C. § 1677f–1(c)(2)(B); rely on Type 03 CBP data to make relative sales volume determinations when selecting respondents for individual examination; and value surrogate wage rates using data from the chosen primary surrogate country are each affirmed.

STANDARD OF REVIEW

The court upholds Commerce's antidumping determinations if they are in accordance with law and supported by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i). Where, as here, the antidumping statute does not directly address the question before the agency, the court will defer to Commerce's construction of its authority if it is reasonable. Timken Co. v. United States, 354 F.3d 1334, 1342 (Fed.Cir.2004) (relying on Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938), and “can be translated roughly to mean ‘is [the determination] unreasonable?’ Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed.Cir.2006) (citation omitted, alteration in the original).

DISCUSSION
I. Commerce's Determination to Limit Individual Examination to Two Mandatory Respondents

AHSTAC's challenge to Commerce's determination to limit its examination to two mandatory respondents, AHSTAC's Br. at 30–35, is rooted in Commerce's statutory obligation to “determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise” when conducting administrative reviews of antidumping duty orders. 19 U.S.C. § 1677f–1(c)(1). But the statute also permits Commerce to limit its examination if the review “involve[s] a “large number of exporters or producers.” Id. at § 1677f–1(c)(2) (the “large number exception”). Pursuant to the large number exception, Commerce may limit its examination to, inter alia, “exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined.” Id. at § 1677f–1(c)(2)(B).6

AHSTAC contends that Commerce improperly invoked the large number exception here because the number of exporters or producers “involved” in this review was not a “large number.” AHSTAC's Br. at 32–35. Although the review was initiated for 84 producers or exporters,7 AHSTAC asserts that the number of respondents “involved” in the review should be determined based on CBP import data, which AHSTAC contends show that significantly fewer than 84 producers or exporters exported subject merchandise to the United States during the period of review (POR). AHSTAC's Br. at 33–35.8 Commerce, on the other hand, maintains that the number of producers or exporters “involved” in the review is the number for which review was initiated and not subsequently rescinded. See I & D Mem. cmt. 8 at 41.9

The first question before the court, therefore, is the meaning of the phrase “involved in the ... review.” 19 U.S.C. § 1677f–1(c)(2). Because the statute itself does not unambiguously define this contested term,10 Commerce's construction is entitled to deference if it is reasonable. See Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778.

Commerce submits that each producer or exporter for whom review is initiated and not subsequently rescinded is involved in the review. See I & D Mem. cmt. 8 at 41. This construction is consistent with the statute's Statement of Administrative Action (“SAA”),11 which affirms that § 1677f–1(c) codified Commerce's preexisting practice of “attempt[ing] to calculate individual dumping margins for all producers and exporters ... for whom an administrative review is requested. H.R. Doc. 103–316, at 872 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4200 (emphasis added). Thus the SAA supports Commerce's reading that the phrase “each known exporter and producer of the subject merchandise,” to which the phrase “exporters or producers involved in the ... review” refers, see19 U.S.C. § 1677f–1(c), contemplates the entities for whom review was requested, initiated, and not rescinded, and does not require Commerce to first evaluate whether or to what extent those entities shipped subject merchandise during the POR.

AHSTAC essentially suggests that Commerce should have rescinded its review—and thus discharged its duty to assign dumping margins—with respect to all those respondents for whom review was requested and initiated but who AHSTAC maintains (based on its reading of the CBP data) had no exports of subject merchandise during the POR.12 But Commerce's consistent and judicially-affirmed practice has been that CBP data alone are insufficient to compel rescission based on a finding of no shipments.13

Indeed the procedure for rescinding a review based on a finding of no shipments reveals that all producers or exporters for whom review was initiated are “involved” in the review—demanding the use of Commerce's resources—until rescission is in effect. As Commerce has previously stated:

[P]rior to rescinding a review pursuant to 19 C.F.R. [§ ] 351.213(d)(3), [Commerce] must begin a factual examination and engage[ ] its resources to make [the] factual finding [as to whether or not the producers or exporters in question had shipments of subject merchandise during the POR]. In some cases, there is little controversy over the facts (i.e., the company has filed a timely no-shipment certification, the CBP data indicates no shipments, any response from CBP to [Commerce]'s no shipments inquiry does not contain any contrary evidence of possible shipments, and no other party presents other information). In other cases, the evidence may be less clear and may require [Commerce] to issue supplemental questionnaires, do further research into CBP data, allow time for parties to comment and submit further information, and ultimately consider and weigh potentially conflicting data and, where necessary and appropriate, scheduling and conducting verification of the respondent's claims of no shipments.

Garlic from China I & D Mem. cmt. 2 at 7 (citation omitted). Commerce's reading of the word “involved” in § 1677f–1(c) is thus further supported by the agency's judicially-affirmed practice of not rescinding reviews based on CBP data alone.14

Accordingly, Commerce's reading of the statute—that the number of exporters or producers “involved” in a review, as contemplated by the exception contained in 19 U.S.C. § 1677f–1(c)(2), is the number for whom review was initiated and not subsequently rescinded—is sustained as reasonable.15

Here, the number of exporters or producers “involved” in the review at the time that Commerce invoked the large number exception—i.e., the number of exporters or producers for whom review was initiated and not rescinded—was 83. 16 AHSTAC does not contest that 83 is a sufficiently large number to invoke the large number exception. See AHSTAC's Br. at 30–35 (arguing only that the number of respondents allegedly shown in the CBP data to have exported subject merchandise during the POR is not a large number). Because 83 is, non-controversially, a large number, Commerce properly invoked § 1677f–1(c)(2) in this review.

II. Commerce's Exclusive Reliance on Type 03 CBP Data to Make Relative Sales Volume Determinations

AHSTAC's next claim also proceeds from the statutory provision, noted above, that permits Commerce to limit its examination to, inter alia, “exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined,” if the number of respondents involved in an antidumping review is so large as to make individual examination of all respondents not practicable. 19 U.S.C. § 1677f–1(c)(2)(B). Here, Commerce determined to limit its examination to the two largest exporters. I & D Mem. cmt. 8 at 40–41 (relying on 19 U.S.C. § 1677f–1(c)(2)(B)). As Commerce explained, “the CBP data...

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  • Shenzhen Xinboda Indus. Co. v. United States
    • United States
    • U.S. Court of International Trade
    • July 27, 2016
    ...first evaluate whether or to what extend those entities shipped subject merchandise during the POR.” Ad Hoc Shrimp Trade Action Comm. v. United States, 992 F.Supp.2d 1302, 1307 (C.I.T.2014). There, the court did not require Commerce to first consider U.S. Customs and Border Protection (“Cus......

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