Viet I-Mei Frozen Foods Co. v. United States

• Citation: 839 F.3d 1099
• Decision Date: 11 October 2016
• Docket Number: 2016-1006
• Parties: Viet I–Mei Frozen Foods Co., Ltd., Plaintiff–Appellant v. United States, Ad Hoc Shrimp Trade Action Committee, Defendants–Appellees
• Court: U.S. Court of Appeals — Federal Circuit

839 F.3d 1099

Viet I–Mei Frozen Foods Co., Ltd., Plaintiff–Appellant

v.United States, Ad Hoc Shrimp Trade Action Committee, Defendants–Appellees

2016-1006

United States Court of Appeals, Federal Circuit.

Decided: October 11, 2016

Matthew R. Nicely , Hughes Hubbard & Reed LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Daniel Martin Witkowski .

Kara Westercamp , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Benjamin C. Mizer, Jeanne E. Davidson, Patricia M. McCarthy, Joshua E. Kurland ; Mykhaylo Gryzlov , Office of Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

Meixuan Li , Picard Kentz & Rowe LLP, Washington, DC, argued for defendant-appellee Ad Hoc Shrimp Trade Action Committee. Also represented by Nathaniel Rickard, Andrew William Kentz, Roop Bhatti .

Before Prost, Chief Judge, Chen and Stoll, Circuit Judges.

Chen

, Circuit Judge.

Viet I–Mei Frozen Foods Co., Ltd., successor in interest to Grobest & I–Mei Industrial (Vietnam) Co., Ltd. (collectively Grobest), appeals the decision of the Court of International Trade (CIT) affirming the U.S. Department of Commerce's final results in the reconducted fourth administrative review of the antidumping duty order on certain frozen warmwater shrimp from Vietnam. See Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam , 79 Fed. Reg. 15,309 (Dep't of Commerce Mar. 19, 2014)

(final results of reconducted administrative review of Grobest and intent not to revoke) (Reconducted Final Results). Grobest argues that the CIT erred in sustaining Commerce's decision to refuse Grobest's request to terminate the individual examination of Grobest and also erred in sustaining Commerce's decision to assign a 25.76% antidumping duty rate using adverse facts available after Grobest failed to cooperate with the examination. See

Viet I–Mei Frozen Foods Co. v. United States , 83 F.Supp.3d 1345 (Ct. Int'l Trade 2015). For the reasons below, we affirm.

BACKGROUND

A.

The antidumping statute provides for the assessment of remedial duties on foreign merchandise sold in the United States at less than fair market value that materially injures or threatens to injure a domestic industry. See 19 U.S.C. § 1673

. An antidumping duty reflects the amount by which the normal value exceeds the export price of the merchandise. Id. §§ 1673e(a)(1), 1677(35). Under the statute, Commerce is generally charged with determining individual dumping margins for each known exporter and producer of the subject merchandise and assigning each an individual duty rate. Id. § 1677f–1(c)(1). Each year, Commerce provides interested parties with an opportunity to request an administrative review of exporters and producers covered by the order to reevaluate the propriety of the assigned duty rate. Id. § 1675(a)(1)(B). In particular, an interested member of the affected domestic industry may request an administrative review of the duty order if it believes a currently assigned rate is too low. 19 C.F.R. § 351.213(b)(1). Conversely, an exporter or producer may request administrative review of the order if it believes its currently assigned rate is too high. Id. § 351.213(b)(2). Absent such a request for review, the duty continues to be assessed at the preexisting rate. Id. § 351.212(c)(1)(i).

In cases where a large number of exporters and producers are involved in an administrative review proceeding and it is not practical to determine individual rates for each, the antidumping duty statute allows Commerce to limit individual examination to a reasonable number of companies. 19 U.S.C. § 1677f–1(c)(2)

. In such cases, Commerce generally selects a subset of companies for mandatory review and determines an individual dumping rate for each of those mandatory respondents. A company that is not selected for individual examination as a mandatory respondent will generally receive what is known as the “all-others” rate. See id. § 1673d(c)(1)(B)(i)(II).

In addition, a company not selected for individual examination may voluntarily submit questionnaire responses containing all of the information requested from mandatory respondents and request individual examination under 19 U.S.C. § 1677m(a)(1)

.¹ However, Commerce may decline to fully investigate the respondents seeking voluntary examination if it determines that the number of exporters or producers who have submitted such requests is so large that individual examination of these voluntary respondents “would be unduly burdensome and inhibit the timely completion of the investigation.” Id. § 1677m(a)(2). Thus, in the typical proceeding, an exporter or producer may receive an individual duty rate as either a mandatory or voluntary respondent or the “all-others” rate if not individually examined.

Proceedings involving a nonmarket economy (NME) country operate slightly differently than the typical proceeding covering goods exported from a country with a market-based economy. Because an NME does not operate on market principles of cost or pricing structures, the normal value may not reflect the fair value of the merchandise. See id. § 1677(18)(A). In NME proceedings, Commerce begins with the presumption that all respondents in the investigation are under foreign government control and should receive a single countrywide dumping rate. Albemarle Corp. & Subsidiaries v. United States , 821 F.3d 1345, 1348 (Fed. Cir. 2016)

. This presumption is rebuttable and a company importing goods covered by the order can prove, through responses to a separate rate questionnaire, that it is not subject to government control and is entitled to a separate, individualized rate. See, e.g. , Transcom, Inc. v. United States , 294 F.3d 1371, 1373 (Fed. Cir. 2002). Thus, in NME proceedings, a company that demonstrates its entitlement to separate rate status receives either an individual rate (as a mandatory or voluntary respondent) or the weighted-average separate rate (if individual examination is impractical or unduly burdensome). And a company that fails to demonstrate independence from the NME country receives the higher countrywide rate.

B.

On February 1, 2005, Commerce made a final determination that certain frozen warmwater shrimp from Vietnam were likely being sold at less than fair market value and published a duty order directing customs officers to assess antidumping duties on imports of the subject merchandise. Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam , 70 Fed. Reg. 5,152 (Dep't of Commerce Feb. 1, 2005)

(notice of amended final determination of sales at less than fair value and antidumping duty order). Vietnam is designated as a NME country and Commerce begins with a rebuttable presumption that a company operating within Vietnam is subject to state control. See

Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of Vietnam , 69 Fed. Reg. 71,005 (Dep't of Commerce Dec. 8, 2004). Commerce presumptively applies a single countrywide antidumping rate of 25.76%—the Vietnam–wide rate—to all imports of frozen warmwater shrimp from Vietnam.

Grobest is a producer of frozen warmwater shrimp from Vietnam covered by the antidumping duty order. Although not individually examined as a mandatory or voluntary respondent during the first three administrative review periods (AR1–AR3), Grobest demonstrated its entitlement to separate rate status and was assigned—for reasons not relevant here—a separate antidumping duty rate of 0% in each review period.² In February of 2009, Grobest and the domestic industry of warmwater shrimp producers—the Ad Hoc Shrimp Trade Action Committee (the Domestic Producers)—each submitted separate requests for review of Grobest in the fourth administrative review of the duty order (AR4), covering the period of February 1, 2008, through January 31, 2009.

In March 2009, Commerce initiated the review of nearly 200 exporters and producers for AR4. Because of the large number of companies involved in AR4, Commerce determined that individual examination of each would be impractical. Instead, as it had done in previous review periods, Commerce selected for mandatory individual examination the two largest companies by volume—Minh Phu Group and Nha Trang Seafoods. Although not selected as a mandatory respondent, Grobest requested to be individually examined for AR4 as a voluntary respondent pursuant to 19 U.S.C. § 1677m(a)

, rather than receive the all-others separate-rate. Commerce declined to examine Grobest individually and on August 9, 2010, published the Final Results for AR4. Minh Phu Group was assigned an individual rate of 2.96%, Nha Trang Seafoods was assigned a rate of 4.89% and Grobest, like all other non-selected companies satisfying the requirements for separate-rate status, received the average of the mandatory respondents' margins—i.e., 3.92%. Companies that did not demonstrate freedom from government control sufficient to achieve separate-rate status received the Vietnam-wide rate of 25.76%.

Grobest brought suit in the CIT on August 19, 2010, challenging Commerce's refusal to individually examine Grobest as a voluntary respondent.³ Grobest argued the refusal was unlawful because Commerce is required to examine any company that seeks individual review unless it would be unduly burdensome pursuant to 19 U.S.C. § 1677m(a)(2)

. And, according to Grobest, Commerce's justification for not individually examining Grobest was lacking. After nearly two years of litigation, the CIT agreed with Grobest and ordered Commerce to examine Grobest as a voluntary respondent. See

Grobest & I–Mei Indus. (Vietnam) v. United States , 853 F.Supp.2d 1352, 1362 (Ct. Int'l Trade 2012) ; Grobest & I–Mei Indus. (Vietnam) v. United States , 815 F.Supp.2d 1342 (Ct. Int'l Trade 2012). The CIT entered Final Judgment on September 13, 2012, ordering that Commerce ...