Huaiyin Foreign Trade Corp. (30) v. U.S.

• Decision Date: 21 March 2003
• Docket Number: No. 02-1484.,02-1484.
• Citation: 322 F.3d 1369
• Parties: HUAIYIN FOREIGN TRADE CORP. (30), Worldwide Link, Inc., Captain Charlie Seafood Wholesale Co., USA, Boston Seafood Processors, Inc., GMRI, Inc., and Ocean Duke Corp., Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, and Crawfish Processors Alliance, Louisiana Department of Agriculture & Forestry, and Bob Odom, Commissioner, Defendants.
• Court: U.S. Court of Appeals — Federal Circuit

322 F.3d 1369

HUAIYIN FOREIGN TRADE CORP. (30), Worldwide Link, Inc., Captain Charlie Seafood Wholesale Co., USA, Boston Seafood Processors, Inc., GMRI, Inc., and Ocean Duke Corp., Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, and Crawfish Processors Alliance, Louisiana Department of Agriculture & Forestry, and Bob Odom, Commissioner, Defendants.

No. 02-1484.

United States Court of Appeals, Federal Circuit.

March 21, 2003.

COPYRIGHT MATERIAL OMITTED

William E. Perry, Garvey, Schubert & Barer, of Washington, DC, for plaintiffs-appellants. With him on the brief was John C. Kalitka.

A. David Lafer, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for defendant-appellee. On the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Mark L. Josephs, Senior Trial Attorney. Of counsel on the brief was Arthur D. Sidney, Attorney Advisor, Office of the Chief Counsel for Import Administration, Department of Commerce, of Washington, DC.

Before MAYER, Chief Judge, LOURIE and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

In a review of an antidumping order, the U.S. Department of Commerce ("Department") determined that a foreign producer of freshwater crawfish tail meat was subject to a dumping margin applicable to all similar producers from the People's Republic of China ("PRC"). The affected producer, Huaiyin Foreign Trade Corporation No. 30 and its domestic importers (collectively "Huaiyin-30") challenged the Department's determination in the Court of International Trade, which upheld the agency's decision. Huaiyin Foreign Trade Corp. (30) v. United States Dep't of Commerce, 201 F.Supp.2d 1351 (Ct. Int'l Trade 2002). Because the trial court did not err in its affirmance of the Department, we affirm.

I

A

In September of 1996, domestic crawfish processors filed an antidumping duty petition with the Department, alleging that freshwater crawfish tail meat from the PRC was sold in the United States at less than fair value. Freshwater Crawfish Tail Meat From the People's Republic of China; Initiation of Antidumping Investigation, 61 Fed.Reg. 54,154 (Oct. 17, 1996). Acting on that petition, the Department initiated an investigation and sent questionnaires to various PRC freshwater crawfish tail meat exporters and producers. Notice of Preliminary Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed.Reg. 14,392, 14,392-93 (Mar. 26, 1997). As it has done in previous investigations, the Department adopted in this proceeding a presumption that the PRC was a nonmarket economy ("NME") country pursuant to 19 U.S.C. § 1677(18)(A), requiring companies desiring an individualized antidumping duty margin to so request and to demonstrate an absence of state control. Id. at 14,394; see also Sigma Corp. v. United States, 117 F.3d 1401, 1405-07 (Fed.Cir. 1997) (reviewing and affirming the Department's use of the "NME presumption").

The Department received questionnaire responses from numerous companies, including Huaiyin Foreign Trade Corporation No. 5 ("Huaiyin-5"). As part of its response, Huaiyin 5 indicated that it was applying for a separate company-specific margin. See 62 Fed.Reg. at 14,393-94. Plaintiff Huaiyin-30, an entity unrelated to Huaiyin-5, took no part in the proceedings.

In August of 1997, the Department completed its investigation and sustained the domestic producers' allegations. As a result, it assigned a dumping duty margin of 201.63 percent ad valorem for all crawfish tail meat imported from the PRC as a whole and by exporters that failed to demonstrate independence from governmental control. Notice of Final Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed.Reg. 41,347, 41,358 (Aug. 1, 1997), amended by Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed.Reg. 48,218, 48,219 (Sept. 15, 1997) (collectively "Final Determinations"). Although the PRC-wide rate applied by default, a small group of companies trading in crawfish tail meat requested and met the requirements for an individualized duty margin. Id. at 41,348. Huaiyin-5 was among the companies able to show an absence of state control and thus received a company-specific 91.5 percent ad valorem duty margin. Id. at 41,358. The antidumping duty margin serves as a cash deposit rate for the importer's estimated antidumping duties.

Like all crawfish tail meat exporters that did not take part in the proceedings, Huaiyin-30 should have paid the higher PRC-wide antidumping margin of 201.63 percent. However, the Department's notice of final rate determination was insufficiently precise and assigned the lower duty margin to a "Huaiyin Foreign Trade Corporation." Id. Although the Department intended to assign the 91.5 percent duty margin to Huaiyin-5, the notice's lack of precision enabled the homonymous Huaiyin-30 to take advantage of this lower duty margin.

B

In 1998, domestic crawfish processors requested an administrative review of the antidumping order. In accordance with its regulations, the Department initiated the requested review by publishing a notice in the Federal Register. Initiation of Antidumping and Countervailing Duty Administrative Review, Requests for Revocation in Part and Deferral of Administrative Reviews, 63 Fed.Reg. 58,009 (Oct. 29, 1998) ("Notice of Initiation"). Specifically, the Notice of Initiation stated in relevant part:

In accordance with section 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings.

. . . .

Antidumping Duty Proceedings Period to be reviewed

. . . .

The People's Republic of China: 3/26/97-8/31/98

Freshwater Crawfish Tail Meat,* A-570-848

China Everbright Trading Company

Binzhou Prefecture Foodstuffs Import & Export Corp.

Huaiyin Foreign Trade Corp.

Yancheng Foreign Trade Corp.

Jiangsu Cereals, Oils & Foodstuffs Import & Export Corp.

Yancheng Baolong Aquatic Foods Co., Ltd.

Huaiyin Ningtai Fisheries Co., Ltd.

Nantong Delu Aquatic Food Co., Ltd.

Ninbo Nanlian Frozen Foods Company, Ltd.

*If one of the above named companies does not qualify for a separate rate, all other exporters of freshwater crawfish tail meat from the People's Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the PRC entity of which the named exporter is a part.

Id. at 58,009-10.

As part of the administrative review, the Department sent questionnaires to the PRC crawfish tail meat exporters specifically identified in the Notice of Initiation, including Huaiyin-5. Based on Huaiyin-5's response, the Department ascertained that there was more than one company named "Huaiyin Foreign Trade Corporation," and that only Huaiyin-5 was actually entitled to the lower duty margin.

In September of 1999, the Department responded to an inquiry from the United States Customs Service ("Customs") by issuing a "Clarification of Message" to Customs, stating that only Huaiyin-5 was actually entitled to the 91.5 percent duty margin. As a result, Customs assigned the PRC-wide 201.63 percent duty margin to all of Huaiyin-30's crawfish tail meat entries and required domestic importers of Huaiyin-30's products to post additional cash deposits to cover the increase in duty margin.

On October 12, 1999, the Department published the preliminary results of its administrative review, finding that sales of PRC crawfish tail meat occurred at below fair value during the review period. Notice of Preliminary Results of Antidumping Duty Administrative Review and New Shipper Reviews, Partial Rescission of the Antidumping Duty Administrative Review, and Rescission of the New Shipper Review for Yancheng Baolong Biochemical Products, Co. Ltd.: Freshwater Crawfish Tail Meat From the People's Republic of China, 64 Fed.Reg. 55,236, 55,237 (Oct. 12, 1999) ("Preliminary Results"). The Department's Preliminary Results reaffirmed that, given the presumption that the PRC is a nonmarket economy, all exporters that did not request or were not able to show an absence of state control would receive the PRC-wide duty margin of 201.63 percent. Id. at 55,239.

After receiving comments to the Preliminary Results from various interested parties, including Huaiyin-30, the Department published the final results of its administrative review. Freshwater Crawfish Tail Meat From the People's Republic of China: Final Results of Administrative Antidumping Duty and New Shipper Reviews, and Final Rescission of New Shipper Review, 65 Fed.Reg. 20,948 (Apr. 19, 2000) ("Final Results"). In the Final Results, the Department determined that Huaiyin-30 was subject to the PRC-wide duty margin of 201.63 percent, because it did not timely request a separate, company-specific duty rate. Id. at 20,949. Moreover, the agency clarified that Huaiyin-5 and the "Huaiyin Foreign Trade Corporation" mentioned in earlier notices and decisions constituted the same entity, and that this entity became subject to the higher duty margin of 201.63 percent because it failed to adequately prove an absence of state control during this administrative review. Id.

Huaiyin-30 filed suit in the Court of International Trade to challenge the Department's determinations published in the Final Results, but the trial court affirmed the Department's antidumping duty decision. First, the court found that the Department provided adequate notice to Huaiyin-30 regarding the administrative review at issue. Huaiyin Foreign Trade, 201 F.Supp.2d at 1357-61. Second, it ruled that the Department properly clarified to Customs that only Huaiyin-5, and not Huaiyin-30, was entitled to make cash deposits at the lower...