Ad Hoc Shrimp Trade Action Committee v. United States, Slip Op. 13–99.

• Decision Date: 02 August 2013
• Docket Number: Slip Op. 13–99.,Court No. 12–00223.
• Citation: 925 F.Supp.2d 1367
• Parties: AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

925 F.Supp.2d 1367

AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 13–99. Court No. 12–00223.¹

United States Court of International Trade.

Aug. 2, 2013.

David A. Yocis, Nathaniel Maandig Rickard and Jordan C. Kahn, Picard Kentz & Rowe LLP, of Washington, DC, for Plaintiff Ad Hoc Shrimp Trade Action Committee.

Robert G. Gosselink, Trade Pacific PLLC, of Washington, DC, for Plaintiffs Marine Gold Products Ltd., Pakfood Public Co. Ltd., Thai Royal Frozen Food Co. Ltd., Thai Union Frozen Products Public Co., Ltd., and Thai Union Seafood Co. Ltd.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. Also on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Michael T. Gagain, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

OPINION

POGUE, Chief Judge:

This consolidated action seeks review of two determinations by the United States Department of Commerce (“Commerce”) in the 2010–2011 administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand.² Specifically, Respondent Plaintiffs ³ challenge Commerce's decision not to calculate an individual dumping margin for Marine Gold.⁴ In addition, Plaintiff Ad Hoc Shrimp Trade Action Committee (“AHSTAC”)—an association of domestic warmwater shrimp producers who participated in this review—challenges Commerce's decision not to reduce respondents' export prices by the amount of antidumping deposits paid for entries of subject merchandise.⁵

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), ⁶ and 28 U.S.C. § 1581(c) (2006).

As explained below, Commerce's Final Results are remanded for reconsideration and/or further explanation regarding Commerce's rejection of Marine Gold's request for individual examination as a voluntary respondent. As also explained below, Commerce's denial of an export price adjustment for the payment of antidumping deposits is sustained.

STANDARD OF REVIEW

This court will uphold 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 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)).

DISCUSSION

I. Marine Gold's Voluntary Respondent Request

Respondents challenge Commerce's denial of Marine Gold's request for individual examination as a voluntary respondent in this review. Resp'ts' Br. at 12–18. Commerce argues that the Court should decline to adjudicate the merits of this challenge because of Respondents' alleged failure to exhaust their administrative remedies on this issue.⁷ In the alternative, Commerce contends that denying Marine Gold's request for individual examination comports with a reasonable interpretation and application of Commerce's statutory authority because granting the request would have been unduly burdensome for the agency. Def.'s Resp. at 16–18; see19 U.S.C. § 1677m(a) (providing that Commerce may decline to calculate individual weighted average dumping margins for voluntary respondents not selected for mandatory examination if “individual examination of such exporters or producers would be unduly burdensome and inhibit the timely completion of the investigation”). Each argument will be addressed in turn.

First, the requirement for administrative exhaustion does not preclude consideration of Respondents' claim. Certainly litigants challenging Commerce's determinations in antidumping proceedings are generally limited to the arguments submitted to Commerce in their administrative case briefs below. E.g., Ad Hoc Shrimp Trade Action Comm. v. United States, –––CIT ––––, 675 F.Supp.2d 1287, 1300 (2009). But here Respondents argued in their case brief, as they do before the court, that Commerce's decision to deny Marine Gold's request for voluntary respondent status failed to comply with 19 U.S.C. § 1677m(a) because Commerce's finding regarding the undue burden of granting Marine Gold's request was unreasonable.⁸ Thus Commerce was put on notice of Respondents' challenge to the agency's finding of undue burden under 19 U.S.C. § 1677m(a).⁹ That Respondents have now structured their argument to take into account relevant legal interpretations that were contained in a decision issued subsequent to the filing of their case brief below ¹⁰ does not alter the essence of their legal challenge. ¹¹ Accordingly, the requirement for administrative exhaustion does not preclude consideration of Respondents' claim.

As to the merits of Respondents' challenge, the antidumping statute provides that if it is “not practicable” for the agency to determine individual weighted average dumping margins for each known exporter and producer of the subject merchandise, then Commerce is authorized to limit its examination to “a reasonable number of exporters or producers.” 19 U.S.C. § 1677f–1(c)(2). Notwithstanding this provision, Commerce is nevertheless required to calculate an individual weighted average dumping margin “for any exporter or producer not initially selected for individual examination under [19 U.S.C. § 1677f–1(c)(2) ]”—i.e., for any voluntary respondent—if that exporter/producer submits to Commerce the information requested from exporters or producers who were selected for examination, if “(1) such information is so submitted by the date specified ... for exporters and producers that were initially selected for examination ... and (2) the number of exporters or producers who have submitted such information is not so large that individual examination of such exporters or producers would be unduly burdensome and inhibit the timely completion of the investigation.” Id. at § 1677m(a).

The “unduly burdensome” standard was recognized in a prior decision holding that, when considering a request for individual examination pursuant to 19 U.S.C. § 1677m(a), Commerce “cannot draw its § 1677m(a) analysis so narrowly that it mirrors the analysis under § 1677f–1(c)(2)” because doing so would render § 1677m(a) meaningless. Grobest, ––– CIT at ––––, 853 F.Supp.2d at 1364.Grobest ordered Commerce to individually examine a voluntary respondent where the facts that Commerce put forward to support its conclusion that such examination would be unduly burdensome merely referred to “the same burdens that occur in every review.” Id. at 1364–65;see id. at 1364 n. 12 (listing factual circumstances proffered to support Commerce's conclusion that examination of an additional respondent would present an undue burden). Grobest held that to support a finding of undue burden, Commerce must “show that the burden of reviewing a voluntary respondent would exceed that presented in the typical antidumping of countervailing duty review.” Id. at 1365.

Here, Commerce decided that individually examining Marine Gold would present an undue burden and inhibit the timely completion of the review based on factual circumstances very similar to those presented in Grobest. Compare I & D Mem. cmt. 2 at 16–17, with Grobest, ––– CIT at ––––, 853 F.Supp.2d at 1364 n. 12.¹² As in Grobest, “the facts that Commerce put forward to support that conclusion do not distinguish this case from the paradigmatic review of an antidumping or countervailing duty order.” Grobest, ––– CIT at ––––, 853 F.Supp.2d at 1364. Indeed, Commerce's own emphasis on prior experience with conducting administrative reviews—comparing the expected burden of examining Marine Gold to that of examining mandatory respondents in prior reviews ¹³—suggests that what Commerce has here deemed to be undue burden is merely the usual burden of conducting a thorough review, which is insufficient to satisfy § 1677m(a)'s standard for rejecting a voluntary respondent request. Grobest, ––– CIT at ––––, 853 F.Supp.2d at 1364–65.

This matter is therefore remanded on the same grounds as those stated in Grobest.Grobest, ––– CIT at ––––, 853 F.Supp.2d at 1364–65. On remand, Commerce must either “show that the burden of reviewing [Marine Gold] would exceed that presented in the typical antidumping or countervailing duty review,” id. at 1365, or else review Marine Gold as a voluntary respondent.

II. Denial of Antidumping Duty Export Price Adjustment

Next, AHSTAC argues that Commerce should have reduced the export prices calculated in this review by the amount of antidumping deposits paid on the subject entries. See AHSTAC's Br. at 8–24.¹⁴ Relying on 19 U.S.C. § 1677a (c)(2)(A),¹⁵ AHSTAC argues that the payment of antidumping deposits on these entries constitutes a duty, cost, charge, or expense “incident to bringing the subject merchandise from the original place of shipment in the exporting country to the place of delivery in the United States,” AHSTAC's Br. at 11 (quoting 19 U.S.C. § 1677a(c)(2)(A)), and must therefore be deducted from export price. Commerce defends its decision not to deduct the paid deposits from the export prices calculated in this review by relying on its long-standing and judicially-affirmed statutory interpretation that antidumping duty deposits “are not costs, expenses, or import duties within the meaning of [ 19 U.S.C. § 1677a(c)(2)(A) ].” ¹⁶ As explained below, because Commerce's decision not to reduce export prices by the amount of the antidumping deposits paid on the corresponding entries was based on a reasonable interpretation of an ambiguous statutory provision,¹⁷ this decision is...