AD HOC Shrimp Trade Action Comm. v. United States

• Decision Date: 20 March 2012
• Docket Number: Slip Op. 12–36.Court No. 10–00275.
• Citation: 828 F.Supp.2d 1345,34 ITRD 1325
• Parties: AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant,andHilltop International, and Ocean Duke Corporation, Defendant–Intervenors.
• Court: U.S. Court of International Trade

34 ITRD 1325

828 F.Supp.2d 1345

AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff,

v.UNITED STATES, Defendant,andHilltop International, and Ocean Duke Corporation, Defendant–Intervenors.

Slip Op. 12–36.Court No. 10–00275.

United States Court of International Trade.

March 20, 2012.

Jordan C. Kahn, Andrew W. Kentz, Nathaniel J. Maandig Rickard, and Kevin M. O'Connor, Picard Kentz & Rowe LLP, of Washington, DC, for Plaintiff Ad Hoc Shrimp Trade Action Committee.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With him on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director. Of counsel on the briefs was Shana Hofstetter, Attorney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Mark E. Pardo, Andrew T. Schutz, Brandon M. Petelin, and Jeffrey O. Frank, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, DC, for the Defendant–Intervenors Hilltop International and Ocean Duke Corporation.

OPINION

POGUE, Chief Judge:

This case returns to the court following remand by Ad Hoc Shrimp Trade Action Comm. v. United States, ––– CIT ––––, 791 F.Supp.2d 1327 (2011) ( “ Ad Hoc I ”). In Ad Hoc I, the court reviewed the final results of the fourth administrative review of the antidumping duty order covering certain frozen warmwater shrimp from the People's Republic of China (“China”) ¹ and ordered the Department of Commerce (“the Department” or “Commerce”) to further explain or reconsider its decision to rely exclusively on Customs and Border Protection Form 7501 data for entries designated as Type 03 ² (“Type 03 CBP Data”) when selecting mandatory respondents in the review. Id. at 1334. In its Final Results of Redetermination Pursuant to Court Remand, ECF No. 50 (“ Remand Results ”), Commerce found that Type 03 CBP Data remains the best available information and reaffirmed its original determination. Remand Results at 28. Plaintiff continues to dispute this result.

For the reasons that follow, the court affirms Commerce's decision to rely exclusively on Type 03 CBP Data as compliant with the remand order and supported by a reasonable reading of the record evidence.

The court has jurisdiction pursuant to § 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2006) ³ and 28 U.S.C. § 1581(c) (2006).

BACKGROUND

The facts necessary to the disposition of Plaintiff's request for review of the Remand Results are the following: ⁴

In the administrative review at issue, Commerce relied exclusively on Type 03 CBP Data to determine the largest exporters by volume when choosing mandatory respondents. Ad Hoc I, ––– CIT at ––––, 791 F.Supp.2d at 1332; see also 19 U.S.C. § 1677f–1(c)(2)(B) (permitting Commerce to limit individual review of respondents to the largest exporters by volume under certain circumstances). Ad Hoc Shrimp Trade Action Committee (“AHSTAC”) challenged that decision before the Department, arguing that the Type 03 CBP Data was unreliable and did not accurately reflect the actual volume of subject imports; therefore, Type 03 CBP Data did not form a reasonable data set for respondent selection. Ad Hoc I, ––– CIT at ––––, 791 F.Supp.2d at 1330–31. In support of its position, AHSTAC placed on the record: (1) the final results of the third administrative review of this antidumping duty order, detailing discrepancies between the Type 03 CBP Data and verified import data for respondent Zhanjiang Regal Integrated Marine Resources Co., Ltd. (“Regal AR3 Verification”); ⁵ (2) alternative import data sets—U.S. Census Import Data (“IM–145 Data”) ⁶ and Automated Manifest Data (“AMS Data”) ⁷—showing import volume discrepancies when compared with Type 03 CBP Data; and (3) two reports to Congress—a United States Customs and Border Protection report (“CBP Report”) ⁸ and a U.S. Government Accountability Office Report (“GAO Report”) ⁹—discussing investigations into misclassification and transshipment of Chinese shrimp imports to the United States. Commerce refused to consider AHSTAC's evidence and relied exclusively on Type 03 CBP Data in the Final Results. Ad Hoc I, ––– CIT at ––––, 791 F.Supp.2d at 1331–32.

AHSTAC subsequently challenged Commerce's determination before this court. Ruling on that challenge, Ad Hoc I held—with specific reference to the Regal AR3 Verification—that “[b]ecause Commerce failed to take into account record evidence that fairly detracts from the weight of the evidence supporting its POR subject entry volume determinations, these determinations are not supported by substantial evidence.” Id. at 1334. The court remanded the Final Results to Commerce to “take into account the record evidence of significant entry volume inaccuracies in Type 03 CBP Form 7501 data ... and explain why it is nevertheless reasonable to conclude that the Type 03 CBP Form 7501 data used in this case are not similarly inaccurate, and/or otherwise reconsider its determination.” Id.

STANDARD OF REVIEW

“The court will sustain the Department's determination upon remand if it complies with the court's remand order, is supported by substantial evidence on the record, and is otherwise in accordance with law.” Jinan Yipin Corp. v. United States, ––– CIT ––––, 637 F.Supp.2d 1183, 1185 (2009) (citing 19 U.S.C. § 1516a(b)(1)(B)(1)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938), “tak[ing] into account whatever in the record fairly detracts from its weight,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In brief, the substantial evidence standard asks whether, based on the record evidence as a whole, the agency's action was reasonable. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed.Cir.2006).

DISCUSSION

In Ad Hoc I, Commerce failed to take into account the record evidence as a whole. Ad Hoc I, ––– CIT at ––––, 791 F.Supp.2d at 1333–34. In particular, Commerce failed to consider evidence on the record that detracted from the reliability of the Type 03 CBP Data. Id. at 1334. By not considering this evidence, Commerce failed to meet the basic requirements of the substantial evidence test, see Universal Camera, 340 U.S. at 488, 71 S.Ct. 456, so the court remanded the determination to Commerce to:

take into account the record evidence of significant entry volume inaccuracies in Type 03 CBP Form 7501 data for merchandise subject to this antidumping duty order, and explain why it is nevertheless reasonable to conclude that the Type 03 CBP Form 7501 data used in this case are not similarly inaccurate, and/or otherwise reconsider its determination,

Ad Hoc I, ––– CIT at ––––, 791 F.Supp.2d at 1334.

In the Remand Results, Commerce considered the evidence of inaccuracies that AHSTAC submitted and concluded that “the Type 03 data [relied upon in this review] is reliable and not similarly inaccurate, and remains the best available on which to base respondent selection.” Remand Results at 4. Thus, Commerce has considered the evidence of inaccuracy, as required by the remand order, and the court must now decide whether the Department's decision to continue relying upon Type 03 CBP Data is reasonable. See Nippon Steel, 458 F.3d at 1351.

In making such a determination the court does not substitute its judgment for that of the agency. As the Court of Appeals for the Federal Circuit has stated:

Although a reviewing court must take into account contradictory evidence or any evidence in the record that undermines the agency's finding, the substantial evidence test does not require that there be an absence of evidence detracting from the agency's conclusion, nor is there an absence of substantial evidence simply because the reviewing court would have reached a different conclusion based on the same record.

Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed.Cir.2007) (citing Universal Camera, 340 U.S. at 487–88, 71 S.Ct. 456).

The court will examine whether Commerce's decision is supported by substantial evidence, first, in light of the conflicting evidence AHSTAC presents and, second, in light of the alternative data sets AHSTAC seeks. In the third part of the opinion, the court will address AHSTAC's challenge to Commerce's policy of reviewing only respondents that have suspended entries.

I. The Evidence of Inaccuracies in Type 03 CBP Data Is Insufficient to Render Commerce's Determination Unreasonable

AHSTAC has consistently challenged the Department's use of Type 03 CBP Data in this review by presenting three categories of evidence demonstrating what AHSTAC believes to be the unreliability of the Type 03 CBP Data: (1) the Regal AR3 Verification; (2) the IM–145 and AMS Data; and (3) the CBP and GAO Reports to Congress. AHSTAC now challenges the Remand Results on these same grounds, arguing that the Department's redetermination is unreasonable in light of the evidence on the record that the Type 03 CBP Data is unreliable. The court will treat each category of evidence in turn.

A. The Regal AR3 Verification is Unpersuasive in Light of the Fourth Administrative Review Verification

The first category of evidence AHSTAC submits is a finding from the third administrative review detailing inaccuracies in the Type 03 CBP Data. In particular, when Commerce verified respondent Regal's data in the third administrative review, the Department found significant discrepancies in import volumes of subject merchandise compared with those reported on Form 7501. AR3 I & D Mem. Cmt. 7 at 23. The court in Ad Hoc I gave particular attention to this fact when ordering the remand:

The fact that, in the immediately preceding review, Commerce discovered significant inaccuracies,¹⁰ undetected by Customs, in the CBP entry volume data for subject...