The opinion
Slip Op. 15 -
UNITED STATES COURT OF INTERNATIONAL TRADE
VIET I-MEI FROZEN FOODS CO.,
LTD.,
Plaintiff, Before: Donald C. Pogue,
Senior Judge
v.
UNITED STATES, Court No. 14-00092
Defendant.
OPINION
[sustaining Department of Commerce’s final results of
reconducted administrative review]
Dated: July 30, 2015
Matthew R. Nicely and Alexandra B. Hess, Hughes
Hubbard & Reed 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
Joyce R. Branda, Acting Assistant Attorney General,
Jeanne E. Davidson, Director, and Patricia M. McCarthy,
Assistant Director. Of counsel was Mykhaylo Gryzlov, Senior
Attorney, Office of the Chief Counsel for Trade Enforcement
& Compliance, U.S. Department of Commerce, of Washington, DC.
Andrew W. Kentz, Jordan C. Kahn, and Nathaniel Maandig
Rickard, Picard Kentz & Rowe LLP, of Washington, DC, for
Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.
Pogue, Senior Judge: In this action, Plaintiff Viet
I-Mei Frozen Foods Co., Ltd., successor in interest to Grobest
& I-Mei Industrial (Vietnam) Co., Ltd. (hereinafter collectively
referred to as “Grobest”), challenges the U.S. Department of
Court No. 14-00092 Page 2
Commerce’s (“Commerce”) decision not to terminate a court-
ordered re-examination of Grobest in the (reconducted) fourth
administrative review of the antidumping duty order on certain
frozen warmwater shrimp from the Socialist Republic of Vietnam
(“Vietnam”), and Commerce’s consequent determination to
establish an antidumping duty rate for Grobest using adverse
facts available.1
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) (2012),2 and 28 U.S.C.
§ 1581(c) (2012).
As explained below, because Commerce reasonably
determined to continue its re-examination of Grobest, and
because the agency properly used adverse facts available, based
on the requisite factual findings (which are not contested
here), Commerce’s final results for this reconducted review with
1
See Certain Frozen Warmwater Shrimp from the Socialist Republic
of Vietnam, 79 Fed. Reg. 15,309 (Dep’t Commerce Mar. 19, 2014)
(final results of re-conducted administrative review of
[Grobest] and intent not to revoke; 2008-2009) (“Reconducted AR4
Final Results”) and accompanying Issues & Decision Mem.,
A-552-802, ARP 08-09 (Mar. 13, 2014) (“Reconducted AR4 Final
I&D Mem.”) cmts. 1 & 2.
2
Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code,
2012 edition.
Court No. 14-00092 Page 3
respect to Grobest are affirmed.
BACKGROUND
Grobest is a producer of frozen warmwater shrimp from
Vietnam, which is subject to an antidumping duty order.3 In the
fourth administrative review of that order, Grobest and the
domestic shrimping industry separately requested that Grobest be
reviewed.4 Commerce initiated the fourth review but, because the
3
Compl., ECF No. 9, at ¶ 6. See Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam, 70 Fed. Reg. 5,152
(Dep’t Commerce Feb. 1, 2005) (amended final determination and
antidumping duty order); Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam, 72 Fed. Reg. 52,052, 52,054
(Dep’t Commerce Sept. 12, 2007) (final results of the first
antidumping duty administrative review and first new shipper
review) (reviewing Grobest as a “new shipper” of subject
merchandise).
4
[Ad Hoc Shrimp Trade Action Comm.] Req. for Admin. Reviews,
Certain Frozen Warmwater Shrimp from [the Socialist Republic of]
Vietnam, A-552-802, ARP 08-09 (Mar. 2, 2009), reproduced in
[Conf. & Pub.] App. to Def.-Intervenor Ad Hoc Shrimp Trade
Action Comm.’s [Conf. & Pub.] Resp. to Pl.’s USCIT Rule 56.2
Mot. for J. on the Agency R., ECF Nos. 38 & 39 at Tab 4 App. A,
at 4; Am. Shrimp Processors Ass’n & La. Shrimp Ass’n’s Req. for
Admin. Review, Certain Frozen Warmwater Shrimp from [the
Socialist Republic of] Vietnam, A-552-802, ARP 08-09 (Feb. 27,
2009), reproduced in [Conf. & Pub.] App. to Def.’s Mem. in Opp’n
to Pl.’s Rule 56.2 Mot. for J. on the Agency R., ECF No. 34
(“Def.’s Conf. App.”) & 35 (“Def.’s Pub. App.”) at Tab 1
Attach. A, at 2; [Grobest’s] Req. for Admin. Review, Revocation
of Antidumping Duty Order in Part, & Entry of Appearance,
Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam, A-552-802, ARP 08-09 (Feb. 27, 2009), reproduced in
Def.’s Conf. & Pub. Apps., ECF Nos. 34-1 & 35-1 at Tab 2, at 2.
Cf. 19 U.S.C. § 1675(a)(1)(B) (“At least once during each
12-month period beginning on the anniversary of the date of the
(footnote continued)
Court No. 14-00092 Page 4
review covered 198 companies, the agency exercised its
authority, pursuant to 19 U.S.C. § 1677f-1(c)(2)(B),5 to limit
its individual examination to the two largest Vietnamese
exporters/producers of subject merchandise by volume (the
“mandatory respondents”).6 Although Grobest was not selected as
a mandatory respondent, it requested to be individually examined
publication of . . . an antidumping duty order . . .,
[Commerce], if a request for such a review has been received and
after publication of notice of such review in the Federal
Register, shall . . . review, and determine (in accordance with
[19 U.S.C. § 1675(a)(2)]), the amount of any antidumping
duty.”); 19 C.F.R. § 351.213(b)(1) (“Each year during the
anniversary month of the publication of an antidumping . . .
duty order, a domestic interested party . . . may request in
writing that [Commerce] conduct an administrative review under
[19 U.S.C. § 1675(a)(1)] of specified individual exporters or
producers covered by an order . . . .”); id. at § 351.213(b)(2)
(“During the same month, an exporter or producer covered by an
order . . . may request in writing that [Commerce] conduct an
administrative review of only that person.”).
5
See 19 U.S.C. § 1677f–1(c)(2)(B) (“If it is not practicable to
make individual weighted average dumping margin determinations
[for each known exporter and producer of the subject
merchandise] because of the large number of exporters or
producers involved in the . . . review, [Commerce] may determine
the weighted average dumping margins for a reasonable number of
exporters or producers by limiting its examination to . . .
exporters and producers accounting for the largest volume of the
subject merchandise from the exporting country that can be
reasonably examined.”).
6
Selection of Resp’ts for the 2008-2009 Antidumping Duty Admin.
Review, Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, A-552-802, ARP 08-09 (June 11, 2009),
reproduced in Def.’s Conf. & Pub. Apps., ECF Nos. 34-1 & 35-1
at Tab 4, at 1.
Court No. 14-00092 Page 5
as a “voluntary respondent” pursuant to 19 U.S.C. § 1677m(a).7
Commerce denied this request. Accordingly, rather than
calculating an antidumping duty rate for Grobest based on an
individual examination of Grobest’s own data, Commerce assigned
to Grobest the ‘all-others separate rate’8 for the period covered
7
See [Grobest’s] Voluntary Resp. to [Commerce]’s Section A
Questionnaire, Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam, A-552-802, ARP 08-09 (July 9,
2009), reproduced in Def.’s Conf. & Pub. Apps., ECF Nos. 34-1
& 35-1 at Tab 5, at 2; [Grobest’s] Voluntary Resp. to Section C
of [Commerce]’s Questionnaire, Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam, A-552-802, ARP 08-09
(July 31, 2009), reproduced in Def.’s Conf. & Pub. Apps.,
ECF Nos. 34-1 & 35-1 at Tab 6, at 1; [Grobest’s] Voluntary Resp.
to Section D of [Commerce]’s Questionnaire, Certain Frozen
Warmwater Shrimp from the Socialist Republic of Vietnam,
A-552-802, ARP 08-09 (July 9, 2009), reproduced in Def.’s Conf.
& Pub. Apps., ECF Nos. 34-1 & 35-1 at Tab 7, at 1. Section
1677m(a) provides that where, as here, Commerce limits its
individual examination pursuant to Section 1677f-1(c)(2),
Commerce must, in addition to calculating individual dumping
margins for the selected mandatory respondents, also calculate
individual dumping margins for any exporters/producers that
timely submit the information requested of the mandatory
respondents, unless “the number of exporters or producers who
have submitted such information is . . . so large that
individual examination of such exporters or producers would be
unduly burdensome and inhibit the timely completion of the
[administrative review].” See 19 U.S.C. § 1677m(a).
8
Where (as here) the subject merchandise is exported from a
country that Commerce considers to be a non-market economy, the
agency generally assigns a single countrywide rate to all
exporters of subject merchandise, except those that establish
eligibility for a separate rate by demonstrating an absence of
government control over their export operations. See Certain
Frozen Warmwater Shrimp from the Socialist Republic of Vietnam,
75 Fed. Reg. 12,206, 12,210 (Dep’t Commerce Mar. 15, 2010)
(preliminary results, partial rescission, and request for
(footnote continued)
Court No. 14-00092 Page 6
by this administrative review.9
Grobest successfully challenged Commerce’s decision to
deny it an individual dumping margin in this review.10 At the
revocation, in part, of the fourth administrative review) (“In
every case conducted by [Commerce] involving Vietnam, Vietnam
has been treated as a non-market economy (‘NME’) country.
. . . A designation as an NME remains in effect until it is
revoked by [Commerce]. Accordingly, there is a rebuttable
presumption that all companies within Vietnam are subject to
government control and, thus, should be assessed a single
antidumping duty rate. It is [Commerce]’s standard policy to
assign all exporters of the merchandise subject to review in NME
countries a single rate unless an exporter can affirmatively
demonstrate an absence of government control, both in law (de
jure) and in fact (de facto), with respect to exports.”)
(citations omitted) (unchanged in the final results, 75 Fed.
Reg. 47,771 (Dep’t Commerce Aug. 9, 2010) (final results and
partial rescission of antidumping duty administrative review)
(“Original AR4 Final Results”)). Non-mandatory respondents that
qualify for an antidumping duty rate separate from that assigned
to the countrywide entity generally receive the ‘all-others’
rate, calculated in accordance with 19 U.S.C. § 1673d(c)(5).
See id. at 12,211 (“[T]he statute and [Commerce]’s regulations
do not directly address the establishment of a rate to be
applied to individual companies not selected for examination
where [Commerce] limited its examination in an administrative
review pursuant to [19 U.S.C. § 1677f-1(c)(2)]. [Commerce]’s
practice in this regard, in cases involving limited selection
based on exporters accounting for the largest volumes of trade,
has been to look to [19 U.S.C. § 1673d(c)(5)], which provides
instructions for calculating the all-others rate in an
investigation, for guidance.”); id. (explaining that Commerce
did so here) (unchanged in Original AR4 Final Results, 75 Fed.
Reg. 47,771). Here, Commerce found Grobest to be eligible for a
rate separate from the countrywide entity, and accordingly
assigned to Grobest the all-others separate rate. Original AR4
Final Results, 75 Fed. Reg. at 47,773, 47,775.
9
Original AR4 Final Results, 75 Fed. at 47,773-75.
10
Grobest & I-Mei Indus. (Vietnam) Co. v. United States,
(footnote continued)
Court No. 14-00092 Page 7
close of that litigation, this Court held that Commerce’s
refusal to review Grobest’s voluntary submissions and establish
an individual weighted average dumping margin for Grobest in
this review was an abuse of the agency’s discretion.11 The court
__ CIT __, 815 F. Supp. 2d 1342, 1360-63 (2012) (“Grobest I”);
Grobest & I-Mei Indus. (Vietnam) Co. v. United States,
__ CIT __, 853 F. Supp. 2d 1352, 1362-65 (2012) (“Grobest II”).
11
In Grobest I, this Court rejected as unreasonable Commerce’s
interpretation of the antidumping statute to permit the agency
to refuse to consider voluntary submissions in any proceeding in
which the agency has limited its individual examination pursuant
to 19 U.S.C § 1677f-1(c)(2). See Grobest I, __ CIT at __,
815 F. Supp. 2d at 1362 (“Commerce argues that when it limits
the number of mandatory respondents under § 1677f-1(c)(2), it
need not consider any voluntary respondents under § 1677m(a)
because it has already determined the number of respondents that
it can review (in this case two). But this argument conflates
the two statutory provisions and renders § 1677m(a) a dead
letter.”); see also id. at 1363 (“Contrary to Commerce’s view
that the statute contains a discretionary grant of authority to
review voluntary respondents if such review is practical, the
statute plainly requires Commerce to conduct individual reviews
[of voluntary timely submissions] unless such reviews would be
unduly burdensome and inhibit the timely completion of the
investigation.”). The court therefore remanded for Commerce to
“make an independent determination of whether it can review
[Grobest’s voluntary submissions] without such review being
unduly burdensome and inhibiting the timely completion of the
[administrative proceeding].” Id. at 1364. On remand, Commerce
determined to invoke the ‘large number’ exception to Section
1677m(a)’s requirement that Commerce establish individual
dumping margins for exporters/producers that, like Grobest,
timely submit the information requested of mandatory
respondents. See Grobest II, __ CIT at __, 853 F. Supp. 2d
at 1362. This ‘large number’ exception provides that Commerce
may decline to review voluntary submissions from the non-
mandatory respondents where “the number of exporters or
producers who have submitted such information is . . . so large
that individual examination of such exporters or producers would
(footnote continued)
Court No. 14-00092 Page 8
therefore ordered Commerce to individually review Grobest as a
voluntary respondent.12 With Grobest’s consent,13 the United
States requested and was granted entry of final judgment –
ordering Commerce to re-conduct its review of Grobest’s dumping
be unduly burdensome and inhibit the timely completion of the
[administrative review].” 19 U.S.C. § 1677m(a)(2). But because
Grobest was the sole non-mandatory respondent in this review
that timely submitted the information requested of the mandatory
respondents, see Grobest II, __ CIT at __, 853 F. Supp. 2d
at 1363, and because Commerce failed to show that individually
reviewing Grobest’s submissions would have been unduly
burdensome, the court held that Commerce’s refusal to review
Grobest’s voluntary submissions and establish an individual
weighted average dumping margin for Grobest in this review was
an abuse of the agency’s discretion. Grobest II, __ CIT at __,
853 F. Supp. 2d at 1364-65 (“When Commerce can show that the
burden of reviewing a voluntary respondent would exceed that
presented in the typical antidumping or countervailing duty
review, the court will not second guess Commerce’s decision on
how to allocate its resources. However, Commerce’s failure to
make such a showing in this case, thereby rendering § 1677m(a)
meaningless, is an abuse of discretion.”) (citing Grobest I,
__ CIT at __, 815 F. Supp. 2d at 1363; Uruguay Round Agreements
Act, Statement of Administrative Action, H.R. Doc. No. 103-316,
vol. 1, at 873 (1994), reprinted in 1994 U.S.C.A.A.N. 4040, 4201
(“SAA”) (“Commerce . . . will not discourage voluntary responses
and will endeavor to investigate all firms that voluntarily
provide timely responses in the form required . . . .”)); cf.
id. at 1364 n.12 (detailing the facts asserted by Commerce to
support the agency’s determination that individual review of
Grobest, the sole potential voluntary respondent, would have
been unduly burdensome).
12
Grobest II, __ CIT at __, 853 F. Supp. 2d at 1365.
13
See Def.’s Mot. for Entry of Final J., Ct. No. 10-00238,
ECF No. 123, at 1 (noting all parties’ consent to the motion for
entry of final judgment, with the sole exception of “Plaintiff
Amanda Foods (Vietnam) Ltd., which [was] not involved [in] the
issues relating to Grobest,” who took no position with respect
to this motion).
Court No. 14-00092 Page 9
rate “by individually examining Grobest as a voluntary
respondent”14 – so that this individual examination of Grobest
may be “conducted under Commerce’s administrative authority and
not under the authority of the Court.”15
In accordance with this Court’s judgment and order in
Grobest II, Commerce initiated a proceeding to re-conduct its
fourth administrative review of this antidumping duty order with
respect to Grobest.16 Two months later, however, on December 12,
14
Judgment, Ct. No. 10-00238, ECF No. 124 (“[Commerce] shall re-
conduct its administrative review of [Grobest] for the fourth
administrative review of the antidumping duty order concerning
frozen warmwater shrimp from Vietnam by individually examining
Grobest as a voluntary respondent . . . .”).
15
Def.’s Mot. for Entry of Final J., Ct. No. 10-00238,
ECF No. 123, at 2; see id. (“By ordering Commerce to ‘conduct an
individual review of Grobest as a voluntary respondent and to
reconsider Grobest’s revocation request in light of the results
of that review,’ the Court has granted Grobest the relief it
sought. All that is left is for Commerce to conduct an
individual examination of Grobest. That review should be
conducted under Commerce’s administrative authority and not
under the authority of the Court.”) (quoting Grobest II,
__ CIT at __, 853 F. Supp. 2d at 1365); id. at 5 (“[T]he Court
has ordered . . . that Commerce individually examine Grobest,
which is the relief Grobest sought, and the Government is
requesting final judgment to conduct that examination.”).
16
Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam, 77 Fed. Reg. 63,786, 63,786 (Dep’t Commerce Oct. 17,
2012) (notice of court decision not in harmony with final
results of administrative review, notice of re-conduct of
administrative review of [Grobest], and notice of amended final
results of administrative review) (“Reconducted AR4 Initiation”)
(“Pursuant to the Court’s final judgment [in Grobest II],
[Commerce] will re-conduct the 2008/2009 administrative review
(footnote continued)
Court No. 14-00092 Page 10
2012, Grobest submitted to Commerce a letter seeking “to
withdraw Grobest’s request for examination as a voluntary
respondent in the fourth administrative review of the order on
frozen warmwater shrimp from Vietnam,”17 and asking Commerce to
“rescind its October 17, 2012 notice announcing that it would
reconduct the 2008-2009 administrative review for Grobest.”18
Despite having consistently challenged Commerce’s initial denial
of Grobest’s request for individual examination, despite having
litigated this challenge throughout Grobest I and Grobest II,
and despite having obtained the judgment in Grobest II ordering
Commerce to reconduct this review and individually examine
Grobest,19 Grobest maintained that “significant management,
of the antidumping duty order on shrimp from Vietnam on Grobest.
[Commerce] will conduct the administrative review according to
the deadlines listed in [19 U.S.C. § 1675(a)(3)], calculating
the deadlines beginning from the date the final judgment was
entered, i.e., September 13, 2012.”).
17
[Grobest’s] Withdrawal of Req. for Voluntary Resp’t Review
& Revocation of Antidumping Duty Order in Part, Certain Frozen
Warmwater Shrimp from the Socialist Republic of Vietnam,
A-552-802, ARP 08-09 (Dec. 12, 2012), reproduced in
[Conf. & Pub.] App. to Pl.’s Mem. in Supp. of Rule 56.2 Mot.
for J. on the Agency R., ECF Nos. 25 (conf. version) & 26 (pub.
version) (“Pl.’s App.”) at Tab 10 Attach. 1 (“Grobest’s 1st
Withdrawal Req.”) at 1-2.
18
Id. at 2 (citing Reconducted AR4 Initiation, 77 Fed. Reg.
63,786).
19
Judgment, Ct. No. 10-00238, ECF No. 124 (“[I]t is further
ordered that [Commerce] shall re-conduct its administrative
review of [Grobest] for the fourth administrative review of the
(footnote continued)
Court No. 14-00092 Page 11
personnel and accounting changes that have occurred at [Grobest]
since the period of review (which dates back to February 2008)
[have made it such that] the administrative and legal costs of
this examination are greater than the company wishes to incur at
this time.”20 The domestic industry opposed Grobest’s request to
terminate the re-examination.21
antidumping duty order concerning certain frozen warmwater
shrimp from Vietnam by individually examining Grobest . . . .”).
20
Grobest’s 1st Withdrawal Req., ECF Nos. 25 & 26 at Tab 10
Attach. 1, at 2; see also Pl.’s Mem. in Supp. of Rule 56.2 Mot.
for J. on the Agency R., ECF No. 24 (“Pl.’s Br.”) at 17 (“[O]n
December 31, 2010, the shrimp processing operation of
Grobest & I-Mei was purchased by Viet I-Mei as a result of a
break up between the former joint venture partners. [On
December 12, 2012 – i.e., nearly two years after this change in
ownership, three months after the entry of judgment in
Grobest II, and two months after Commerce’s initiation of the
reconducted review of Grobest pursuant to that judgment – ] Viet
I-Mei sought to withdraw Grobest & I-Mei as a voluntary
respondent because Viet I-Mei had undergone ‘significant
management, personnel and accounting changes,’ and, accordingly,
‘the administrative and legal costs of th[e] examination [were]
greater than the company wishe[d] to incur . . . .’ Viet I-Mei
was no longer confident of its ability to guarantee the
provision of complete and accurate data to Commerce because much
of the relevant support documentation would be difficult to
obtain due to the change in management and ownership.”) (quoting
Grobest’s 1st Withdrawal Req., ECF Nos. 25 & 26 at Tab 10
Attach. 1, at 2 (alterations in Pl.’s Br.)).
21
[Domestic Producers’] Opp’n to Grobest’s Req. to Rescind
Review, Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, A-552-802, ARP 08-09 (Jan. 25, 2013),
reproduced in Pl.’s App., ECF Nos. 25 & 26 at Tab 10 Attach. 2
(noting that Petitioners timely requested review of Grobest, and
opposing Grobest’s request to terminate its individual
examination); [Domestic Producers’] Resp. to [Grobest] & Req.
(footnote continued)
Court No. 14-00092 Page 12
Commerce declined to abort its re-examination of
Grobest, and issued a supplemental questionnaire requiring
Grobest to “address[] certain deficiencies”22 discovered in its
original questionnaire responses with regard to, inter alia,
Grobest’s reported quantity and value of subject merchandise
sold to unaffiliated U.S. customers during the period of
review.23 In the cover letter sent with this supplemental
for Appl. of Adverse Facts Available, Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam, A-552-802,
ARP 08-09 (Feb. 20, 2013), reproduced in Def.’s Conf. & Pub.
Apps., ECF Nos. 34 & 35 at Tab 9 (reiterating Petitioners’
opposition to Grobest’s withdrawal request, and suggesting that
Commerce should employ adverse inferences when selecting from
among the facts available to calculate an individualized dumping
margin for Grobest in the absence of Grobest’s cooperation).
22
Cover Letter to Commerce’s Supplemental Questionnaire to
Grobest, Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, A-552-802, ARP 08-09 (Jan. 15, 2013),
reproduced in Def.’s Conf. App., ECF No. 34-2 at Tab 15; Def.’s
Supplement to [Pub.] App., ECF No. 45-1 (“Grobest’s Suppl.
Quest.”) at 1.
23
Id. at 3 ¶¶ 1-2. Commerce also requested clarification with
regard to discrepancies in Grobest’s reported “quantity and
value of shipments to [Grobest’s] affiliated importer . . . .”
Id. at ¶ 1. Defendant-Intervenor Ad Hoc Shrimp Trade Action
Committee points out that this importer was also implicated in
proceedings involving a separate antidumping duty order on
frozen warmwater shrimp from the People’s Republic of China, in
which Commerce found this importer to have been involved in the
provision of misinformation sufficient to impeach the
credibility of the (Chinese) exporter/producer at issue in those
proceedings. See Def.-Intervenor Ad Hoc Shrimp Trade Action
Comm.’s [Conf. & Pub.] Resp. to Pl.’s USCIT Rule 56.2 Mot. for
J. on the Agency R., ECF Nos. 36 (conf. version) & 37 (pub.
version) (“Def.-Int.’s Br.”) at 10-12 (discussing findings made
(footnote continued)
Court No. 14-00092 Page 13
questionnaire, Commerce stated that a response from Grobest was
required, in proper format, “no later than close of business
January 29, 2013,”24 and warned that “[u]pon receipt of a
response that is incomplete or deficient to the extent that
[Commerce] determines it to be non-responsive[,] [Commerce] will
not issue additional supplemental questionnaires but will use
facts available,” adding that “[i]f [Grobest] fail[s] to
cooperate . . . by not acting to the best of [its] ability to
comply with [Commerce’s] request for information, [Commerce] may
use information that is adverse to [Grobest’s] interest in
during the sixth administrative review of the antidumping duty
order on frozen warmwater shrimp from the People’s Republic of
China); cf. Certain Frozen Warmwater Shrimp from the People’s
Republic of China, 77 Fed. Reg. 53,856, 53,856 n.2 (Dep’t
Commerce Sept. 4, 2012) (final results, partial rescission of
sixth antidumping duty administrative review and determination
not to revoke in part) and accompanying Issues & Decision Mem.,
A-570-893, ARP 10-11 (Aug. 27, 2012); Ad Hoc Shrimp Trade Action
Comm. v. United States, __ CIT __, 992 F. Supp. 2d 1285 (2014)
(discussing the relevant facts and legal determinations).
But see Reconducted AR4 Final I&D Mem. cmt. 2 at 7 (“With regard
to Domestic Producers’ allegation that Grobest’s lack of
cooperation should be viewed in light of [this context],
Domestic Producers referenced the information that is on the
record of another proceeding, but did not place it on the record
of this review. Therefore, we do not find that this
re-conducted administrative review is the correct venue to
address this allegation.”).
24
Cover Letter to Grobest’s Suppl. Quest., ECF No. 34-2
at Tab 15 & ECF No. 45-1, at 1.
Court No. 14-00092 Page 14
conducting its analysis.”25
On January 29, 2013 (i.e., the due date set for its
response to Commerce’s supplemental questionnaire), Grobest
again requested that Commerce terminate the re-examination,
without responding to Commerce’s supplemental inquiries.26
Commerce acknowledged and denied Grobest’s request, and again
required that Grobest submit responses to Commerce’s
supplemental questionnaire, giving the company until close of
business on February 13, 2013, to do so.27 But Grobest again
refused to respond to Commerce’s inquiries. Instead, on the due
date set for its responsive submission, Grobest “reiterate[d]
[its] proposal that [Commerce] discontinue examination of
Grobest as a voluntary respondent in the fourth administrative
review and maintain the Final Results for Grobest as originally
25
Id. at 2.
26
[Grobest’s] Resp. to Jan. 15, 2013 Supplemental Questionnaire
in Re-examination of [Grobest’s] Voluntary Resps., Certain
Frozen Warmwater Shrimp from the Socialist Republic of Vietnam,
A-552-802, ARP 08-09 (Jan. 29, 2013), reproduced in Pl.’s App.,
ECF Nos. 25 & 26 at Tab 10 Attach. 3 (“Grobest’s 2d Withdrawal
Req.”) (noting that Commerce had not explicitly responded to
Grobest’s request to terminate the re-examination).
27
Cover Letter to Commerce’s Reissued Supplemental Questionnaire
to Grobest, Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, A-552-802, ARP 08-09 (Feb. 6, 2013),
reproduced in Def.’s Conf. App., ECF No. 34-2 at Tab 16, at 2.
Court No. 14-00092 Page 15
issued,”28 again stating only that “the company is unable to
continue with the examination of Grobest’s voluntary responses
due to the significant management, personnel and accounting
changes that have occurred at [Grobest] since the period of
review,”29 and that “[t]he administrative and legal costs of this
examination are greater than the company wishes to incur at this
time.”30
Responding to Grobest’s refusal to cooperate with
Commerce’s requests for information, Commerce found that Grobest
withheld information requested of it and impeded the proceeding,
within the meaning of 19 U.S.C. §§ 1677e(a)(2)(A) and (C),31 and
28
[Grobest’s] Resp. to [Commerce]’s Supplemental Questionnaire
& Pet’rs’ Objection to Rescission, Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam, A-552-802,
ARP 08-09 (Feb. 13, 2013), reproduced in Pl.’s App., ECF Nos. 25
& 26 at Tab 10 Attach. 4 (“Grobest’s Resp. to Suppl. Quest.”)
at 4.
29
Id. at 2.
30
Id.
31
See 19 U.S.C. §§ 1677e(a)(2)(A) & (C) (“If . . . an interested
party or any other person . . . (A) withholds information that
has been requested by [Commerce] . . . [or] (C) significantly
impedes a proceeding . . . [Commerce] shall, subject to
[19 U.S.C. § 1677m(d) (requiring Commerce to “promptly inform
the person submitting the response of the nature of the
deficiency” and, “to the extent practicable, provide that person
with an opportunity to remedy or explain the deficiency in light
of the time limits established for the completion of [the
review]”)], use the facts otherwise available in reaching the
applicable determination . . . .”).
Court No. 14-00092 Page 16
concluded that Grobest failed to cooperate, within the meaning
of 19 U.S.C. § 1677e(b),32 by not acting to the best of its
ability to comply with Commerce’s requests.33 Accordingly, the
agency employed adverse inferences when selecting from among the
facts otherwise available to establish Grobest’s individual
dumping margin for this proceeding.34 Explaining that its
practice in this regard is to ensure that the dumping rate
established for the non-cooperative respondent is “sufficiently
adverse ‘as to effectuate the statutory purpose of the adverse
facts available rule to induce respondents to provide [Commerce]
32
See 19 U.S.C. § 1677e(b) (“If [Commerce] finds that an
interested party has failed to cooperate by not acting to the
best of its ability to comply with a request for information
from [Commerce], [Commerce], in reaching the applicable
determination under this subtitle, may use an inference that is
adverse to the interests of that party in selecting from among
the facts otherwise available. Such adverse inference may
include reliance on information derived from – (1) the petition,
(2) a final determination in the investigation under this
subtitle, (3) any previous review under section 1675 of this
title or determination under section 1675b of this title, or
(4) any other information placed on the record.”).
33
Decision Mem. for Prelim. Results of Re-Conducted Admin.
Review, Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, A-552-802, ARP 08-09 (Sept. 10, 2013)
(adopted in 78 Fed. Reg. 57,352, 57,353 (Dep’t Commerce Sept.
18, 2013) (preliminary results of re-conducted administrative
review of [Grobest] and intent not to revoke; 2008-2009))
(“Reconducted AR4 Prelim. I&D Mem.”) at 7-8 (unchanged in
Reconducted AR4 Final I&D Mem. cmt. 2 at 6-7).
34
Id. (relying on 19 U.S.C. § 1677e(b)).
Court No. 14-00092 Page 17
with complete and accurate information in a timely manner,’”35 as
well as to ensure “that the party does not obtain a more
favorable result by failing to cooperate than if it had
cooperated fully,”36 Commerce assigned to Grobest a rate of
25.76 percent, which represents “the highest dumping margin on
the record of any segment of this proceeding.”37 Commerce found
that this rate “is appropriate for Grobest in that it is
sufficient to ensure that Grobest does not benefit from failing
to cooperate in [the reconducted] review by refusing to respond
to [Commerce]’s request for complete information regarding its
affiliations, sales of subject merchandise, and factors of
production.”38
Grobest now challenges Commerce’s decision to deny
Grobest’s request to terminate its individual examination as a
voluntary respondent and reinstate the final results of the
35
Id. at 8 (quoting SAA, H.R. Rep. No. 103-316, vol. 1, at 870).
36
Id. at 9 (citing SAA, H.R. Rep. No. 103-316, vol. 1, at 870;
Certain Frozen Canned Warmwater Shrimp from Brazil, 69 Fed. Reg.
76,910 (Dep’t Commerce Dec. 23, 2004) (final determination of
sales at less than fair value); D&L Supply Co. v. United States,
113 F.3d 1220, 1223 (Fed. Cir. 1997)).
37
Id. (citation omitted) (unchanged in Reconducted AR4 Final
Results, 79 Fed. Reg. at 15,310).
38
Id.
Court No. 14-00092 Page 18
fourth review with respect to Grobest as originally conducted.39
Beyond characterizing its rate as “punitive,” Grobest makes no
argument as to the specific rate assigned to it in the
reconducted review.40 Rather, Grobest contends solely that
“Commerce exceeded its statutory authority when it refused to
permit [Grobest] to withdraw [its] individual review request,”41
which “resulted in an impermissibly punitive” rate for Grobest.42
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
legal 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.
39
Pl.’s Br., ECF No. 24, at 12-22.
40
See id. at 12-22 (generally addressing all arguments to
Commerce’s refusal to permit Grobest’s withdrawal from
individual examination and presenting no argument regarding
Commerce’s finding that Grobest failed to cooperate, the
consequent determination to use adverse facts available, or the
specific methodology employed to arrive at the rate ultimately
selected for Grobest in the reconducted review).
41
Id. at 22.
42
Id. at 20.
Court No. 14-00092 Page 19
Cir. 2004) (relying on Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (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 (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
Grobest argues that “pursuant to 19 U.S.C. § 1677m and
19 C.F.R. § 351.213(d), Commerce should have withdrawn [Grobest]
as a voluntary respondent from the review at the request of
[Grobest].”43 The Government asserts, first,44 that “Grobest’s
actions in obtaining the final judgment ordering Commerce to
examine it individually estop it from challenging Commerce’s
individual examination now,” because it is “well-established
that ‘where a party assumes a certain position in a legal
proceeding and succeeds in maintaining that position, he may not
43
Pl.’s Br., ECF No. 24, at 13.
44
Although the Government presents this argument as a secondary,
alternative argument to its defense of Commerce’s determination
on the merits, the question of estoppel logically precedes the
issue of the merits, and so must be addressed first.
Court No. 14-00092 Page 20
thereafter, simply because his interests have changed, assume a
contrary position.’”45 In the alternative, the United States
argues that Commerce reasonably interpreted the statute and
relevant regulations not to require the agency to terminate
Grobest’s court-ordered re-examination based solely upon
Grobest’s unilateral decision not to participate in the
proceeding,46 and contends that on the record presented here,
Commerce reasonably determined to proceed with the re-
examination and to use adverse facts available when Grobest
withheld information and failed to cooperate to the best of its
ability.47 Each argument is addressed in turn.
I. Judicial Estoppel Is Not Appropriate Here.
Judicial estoppel is “an equitable doctrine invoked by
45
Def.’s Mem. in Opp’n to Pl.’s Rule 56.2 Mot. for J. on the
Agency R., ECF No. 33 (“Def.’s Br.”) at 20 (quoting New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citation
omitted)); see also id. at 23 (“After tying up resources of this
Court, the agency, and other interested parties for many months
in litigation and obtaining the final judgment that ordered
Commerce to examine the company individually, Grobest later
unilaterally decided that the exigencies of the moment have
changed and that its individual examination is unnecessary.
This is the type of reversal that the judicial estoppel doctrine
is designed to prevent. Thus, the Court should not countenance
Grobest’s maneuvering.”).
46
Id. at 10-15.
47
Id. at 18-19.
Court No. 14-00092 Page 21
a court at its discretion,”48 which is “intended to prevent
improper use of judicial machinery.”49 Although “the
circumstances under which judicial estoppel may appropriately be
invoked are probably not reducible to any general formulation of
principle,”50 several factors51 may “typically inform the decision
whether to apply the doctrine in a particular case.”52 Most
importantly, “a party’s later position must be ‘clearly
48
New Hampshire, 532 U.S. at 750; see also Trs. in Bankr. of N.
Am. Rubber Thread Co. v. United States, 593 F.3d 1346, 1351
(Fed. Cir. 2010) (“NART”) (reviewing this Court’s decision
regarding the applicability of judicial estoppel for abuse of
discretion) (citing Data Gen. Corp. v. Johnson, 78 F.3d 1556,
1565 (Fed. Cir. 1996)).
49
New Hampshire, 532 U.S. at 750 (quotation marks and citations
omitted). See also Data Gen. Corp., 78 F.3d at 1565 (“Judicial
estoppel is designed to prevent the perversion of the judicial
process and, as such, is intended to protect the courts rather
than the litigants.”) (citations omitted).
50
New Hampshire, 532 U.S. at 750 (alternations, quotation marks,
and citations omitted).
51
Cf. id. at 751 (“In enumerating these factors, we do not
establish inflexible prerequisites or an exhaustive formula for
determining the applicability of judicial estoppel. Additional
considerations may inform the doctrine’s application in specific
factual contexts. . . . [W]e simply observe that [these]
factors [may] tip the balance of equities in favor of barring [a
particular claim].”). See NART, 593 F.3d at 1354 (reiterating
these New Hampshire factors, “which the Supreme Court did not
intend to be exclusive,” as informing the court’s “determination
of whether a party’s inconsistent legal positions constitute
judicial estoppel”).
52
New Hampshire, 532 U.S. at 750.
Court No. 14-00092 Page 22
inconsistent’ with its earlier position.”53 In addition,
judicial estoppel is appropriate where “the party has succeeded
in persuading a court to accept that party’s earlier position,
so that judicial acceptance of an inconsistent position in a
later proceeding would create ‘the perception that either the
first or the second court was misled,’”54 although “it may be
appropriate to resist application of judicial estoppel ‘when a
party’s prior position was based on inadvertence or mistake.’”55
Here, Grobest contends that it sought to withdraw as a
53
Id. (quoting United States v. Hook, 195 F.3d 299, 306
(7th Cir. 1999); In re Coastal Plains, Inc., 179 F.3d 197, 206
(5th Cir. 1999); Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140,
1143 (8th Cir. 1998); Maharaj v. Bankamerica Corp., 128 F.3d 94,
98 (2d Cir. 1997)). A related consideration is “whether the
party seeking to assert an inconsistent position would derive an
unfair advantage or impose an unfair detriment on the opposing
party if not estopped.” New Hampshire, 532 U.S. at 751
(citations omitted).
54
Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599
(6th Cir. 1982)); see also id. at 750-51 (emphasizing the “risk
of inconsistent court determinations” as the relevant “threat to
judicial integrity”) (quotation marks and citations omitted).
55
Id. at 753 (quoting John S. Clark Co. v. Faggert & Frieden,
P.C., 65 F.3d 26, 29 (4th Cir. 1995) and citing In re Corey,
892 F.2d 829, 836 (9th Cir. 1989); Konstantinidis v. Chen,
626 F.2d 933, 939 (D.C. Cir. 1980)); cf. NART, 593 F.3d at 1357
(applying judicial estoppel where a party advanced a position
inconsistent with its successful prior litigating position,
because the party had simply “changed its mind” and “did not
argue that [its] original [position] was erroneous, that there
were any objective factual changes that justified such a change
[in position], or that its ‘prior position was based on
inadvertence or mistake.’”) (quoting New Hampshire, 532 U.S.
at 753).
Court No. 14-00092 Page 23
voluntary respondent because “on December 31, 2010, the shrimp
processing operation of Grobest & I-Mei was purchased by
Viet I-Mei,” and “Viet I-Mei was no longer confident of its
ability to guarantee the provision of complete and accurate data
to Commerce because much of the relevant support documentation
would be difficult to obtain due to the change in management and
ownership.”56 But as Defendant points out,57 this change of
ownership occurred nearly two years prior to the entry of
judgment, in favor of Grobest, on its initial request for
individual examination.58 In that time, Grobest could easily
have voluntarily dismissed its litigation in demand of
individual examination (thereby obtaining the very result that
Grobest now seeks),59 but chose not to do so.60
56
Pl.’s Br., ECF No. 24, at 17.
57
Def.’s Br., ECF No. 33, at 17.
58
See Judgment, Ct. No. 10-00238, ECF No. 124 (entering final
judgment, on September 13, 2012, ordering Commerce to re-conduct
the administrative review by individually examining Grobest).
59
Cf. Hubscher Ribbon Corp. v. United States, __ CIT __,
979 F. Supp. 2d 1360, 1363 (2014) (describing a case in which,
in response to Commerce’s decision on remand to reopen an
investigation and individually examine the plaintiff – a
separate-rate respondent who had challenged the separate rate
assigned to it – the plaintiff “voluntarily dismissed the
litigation rather than be individually reviewed, conceding that
all its entries would be covered by the [previously challenged]
separate rate”) (citation omitted).
60
Nor did any party move for relief from the judgment, which
(footnote continued)
Court No. 14-00092 Page 24
Nevertheless, Grobest’s earlier position – that
Commerce’s decision to reject Grobest’s request to participate
as a voluntary respondent pursuant to 19 U.S.C. § 1677m(a) was
not in accordance with law – is not clearly inconsistent with
its current position – that Commerce’s decision not to terminate
the individual examination upon Grobest’s subsequent request was
also contrary to law. Unlike in New Hampshire,61 acceptance of
both of Grobest’s positions – i.e., that Commerce erred
initially by not granting Grobest voluntary respondent status
and then erred again by not terminating Grobest’s examination
upon the latter’s request – would not lead to logically
inconsistent court decisions, undermining the integrity of the
ordered that Commerce “shall re-conduct its administrative
review of [Grobest] . . . by individually examining Grobest as a
voluntary respondent,” Judgment, Ct. No. 10-00238, ECF No. 124,
once it was entered. Cf. USCIT R. 60(b)(6) (“On motion and just
terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . any . . .
reason that justifies relief.”).
61
See New Hampshire, 532 U.S. at 755 (“Having convinced this
Court to accept one interpretation of ‘Middle of the River,’ and
having benefited from that interpretation, New Hampshire now
urges an inconsistent interpretation to gain an additional
advantage at Maine’s expense. Were we to accept New Hampshire’s
latest view, the risk of inconsistent court determinations would
become a reality. We cannot interpret ‘Middle of the River’ in
the 1740 decree to mean two different things along the same
boundary line without undermining the integrity of the judicial
process.”) (emphasis added; quotation marks and citation
omitted).
Court No. 14-00092 Page 25
judicial process.62 Put otherwise, the question in Grobest I and
Grobest II was whether Commerce’s decision to deny Grobest’s
voluntary request for individual examination was reasonable on
the record presented, whereas the question now before the court
concerns the reasonableness of Commerce’s separate decision to
continue with the examination after Grobest’s request to
terminate it. Because these are logically discrete issues, and
because affirmative answers to both of these questions would not
inherently be mutually exclusive, the doctrine of judicial
estoppel, which is applicable solely in cases of manifest
contradiction,63 is not appropriate here. Accordingly, the court
moves on to the merits of Grobest’s challenge.
II. Commerce Was Not Required to Terminate Grobest’s Individual
Re-Examination Upon Grobest’s Request.
As Grobest concedes, “[t]he U.S. antidumping statutory
62
Cf. NART, 593 F.3d at 1358 (J. Gajarsa, dissenting)
(“[J]udicial estoppel no longer serves its purpose when . . . a
court faces no risk of reaching an inconsistent
determination.”).
63
See New Hampshire, 532 U.S. at 749 (“[J]udicial estoppel . . .
prevents a party from prevailing in one phase of a case on an
argument and then relying on a contradictory argument to prevail
in another phase.”) (emphasis added); Davis v. Wakelee, 156 U.S.
680, 689 (1895) (“[A] party [who] assumes a certain position in
a legal proceeding, and succeeds in maintaining that position,
. . . may not thereafter, simply because his interests have
changed, assume a contrary position, especially if it be to the
prejudice of the party who has acquiesced in the position
formerly taken by him.”) (emphasis added).
Court No. 14-00092 Page 26
and regulatory framework does not expressly contemplate a
voluntary respondent’s rescission of a request for individual
review.”64 Commerce’s regulations do provide, however, that “[a]
voluntary respondent accepted for individual examination . . .
will be subject to the same requirements as an exporter or
producer initially selected by [Commerce] for individual
examination under [19 U.S.C. § 1677f-1(c)(2)], including . . .,
where applicable, the use of the facts available under
[19 U.S.C. § 1677e] and [19 C.F.R.] § 351.308.”65 This
regulation subjects voluntary respondents to the same
requirements as the mandatory respondents, including
specifically to the requirements of Section 1677e – which
expressly permits Commerce to resort to adverse inferences in
selecting from among the facts otherwise available when the
respondent fails to act to the best of its ability to comply
with Commerce’s requests for information.66 Commerce is
therefore correct that voluntary respondents are not entitled to
unilaterally dictate their level of participation once accepted
for individual examination. As Defendant points out, “[i]f it
were otherwise, the voluntary respondent process would be
64
Pl.’s Br., ECF No. 24, at 15.
65
19 C.F.R. 351.204(d)(2) (2014).
66
19 U.S.C. §§ 1677e(a)-(b).
Court No. 14-00092 Page 27
subject to potential manipulation by companies seeking
individual review and then declining to proceed if the review
started to look unfavorable.”67
Nor was Commerce required (as Grobest contends) to
discontinue its individual re-examination of Grobest because
Grobest’s request to terminate the examination was made within
90 days of the judgment order in Grobest II.68 Commerce’s
regulations provide that the agency will rescind an
administrative review if the party that requested such review
withdraws its request within 90 days of the date of publication
of the notice of its initiation (although Commerce may extend
this 90-day limit if the agency “decides that it is reasonable
to do so”).69 But, as is clear from its context, this regulatory
provision concerns the complete rescission of an administrative
review with respect to a particular respondent (where all
parties who have requested the review withdraw those requests),
rather than the cessation of individual examination for a
67
Def.’s Br., ECF No. 33, at 12.
68
See Pl.’s Br., ECF No. 24, at 16-19 (arguing that Commerce
should have treated Grobest’s request to terminate the re-
examination as a request to rescind individual review under
19 C.F.R. § 351.213(d)(1), calculating that regulation’s 90-day
deadline from the date of the judgment order in Grobest II).
69
19 C.F.R. § 351.213(d)(1).
Court No. 14-00092 Page 28
respondent who prefers the all-others rate.70 Here, regardless
of Grobest’s desire to continue with the review (and regardless
of the timing and legal effect of any communication from Grobest
to Commerce in this regard), the Petitioners had also requested
that Grobest be reviewed and, as this request was never
withdrawn, the regulatory provision for rescission is not
applicable.71
70
The subsection is entitled “rescission of administrative
review” and contains three subparts describing circumstances
under which Commerce will “rescind an administrative review” –
(1) where the party that requested the review timely withdraws
its request; (2) where Commerce had self-initiated the review
and decides to discontinue it; and (3) where Commerce concludes
that the respondent under review had no shipments of subject
merchandise to the United States during the period covered by
the review. When viewed together, all three scenarios are
addressed to the complete rescission of a review with respect to
a particular respondent. Moreover, this subsection (addressed
to the “rescission of administrative reviews”) is situated
within a broader section (dealing with the conduct of
administrative reviews generally) such that it appears
immediately after the subsections concerning the initiation of
such reviews, and precedes the subsequent subsections addressed
to the actual conduct of these reviews (including a subsequent
section addressed specifically to “voluntary respondents,”
19 C.F.R. § 351.213(f) (providing that Commerce “will examine
voluntary respondents in accordance with [19 U.S.C. § 1677m(a)]
and [19 C.F.R.] § 351.204(d)”)), again suggesting that this
subsection concerns the complete rescission of a review of a
particular respondent, rather than (as Grobest’s argument
suggests), the termination of a respondent’s individual
examination in favor of assigning such respondent the ‘all
others’ rate.
71
See Reconducted AR4 Final I&D Mem. cmt. 1 at 4 (“Even if
Grobest properly withdrew its request for review . . . (which it
did not), . . . Petitioners requested that [Commerce] review
(footnote continued)
Court No. 14-00092 Page 29
At oral argument, counsel for Grobest conceded that
19 C.F.R. § 351.213(d)(1) is addressed to the rescission of
reviews and is therefore not directly applicable. Instead
Grobest argued that the court should look to this regulation by
way of analogy, and thereby evaluate Commerce’s decision not to
terminate Grobest’s individual examination upon Grobest’s
request by using the “balancing test” that Grobest contends is
generally used to evaluate Commerce’s decisions under 19 C.F.R.
§ 351.213(d)(1).72 But this argument is also unpersuasive.
Grobest and did not withdraw their request for review.”)
(citation to Petitioners’ request for review of Grobest
omitted); supra note 21 (providing citations to the domestic
industry’s opposition to Grobest’s request to termination the
re-examination). Cf. Ferro Union, Inc. v. United States, 23 CIT
178, 180-83 (1999) (sustaining Commerce’s decision not to
rescind review of respondent that withdrew its request within 90
days, because petitioners had not withdrawn their independent
request for review of that respondent).
72
See Oral Arg. Tr., ECF No. 50, at 10 (referring to “the
preamble to the antidumping regulations”); Pl.’s Br., ECF No.
24, at 16 (citing to Antidumping Duties; Countervailing Duties,
62 Fed. Reg. 27,296, 27,317 (Dep’t Commerce May 19, 1997) (final
rule) as “the Preamble”); Antidumping Duties; Countervailing
Duties, 62 Fed. Reg. at 27,317 (responding to commentary on
then-proposed § 351.213(d)(1) “and its 90-day limit on
withdrawals of a request for review”; rejecting a suggestion
that the provision be modified to permit rescission outside the
90-day window, upon withdrawal of the request(s) and in the
absence of objections; explaining that Commerce “must have the
ability to deny withdrawals of requests for review, even in
situations where no party objects” in order to prevent
situations such as, “[f]or example,” . . . [where] a party
requests a review, [Commerce] devotes considerable time and
resources to the review, and then the party withdraws its
(footnote continued)
Court No. 14-00092 Page 30
First, the analogy is strained at best. Grobest seeks to apply
the rescission regulation to a situation in which it does not
seek rescission of its review, but rather would prefer the all-
others rate over an individualized rate – an option that is
clearly unavailable to the mandatory respondents upon whom the
voluntary respondents’ treatment is required to be modelled.73
Next, the “balancing test” to which Grobest refers as a
mandatory set of considerations is instead merely part of
Commerce’s explanation for rejecting proposals to require the
agency to rescind under certain conditions. Commerce’s practice
does not set out a mandatory balancing test; the agency instead
concluded that “the decision to rescind a review will be at
[Commerce]’s discretion.”74 Finally, even if 19 C.F.R.
§ 351.213(d)(1) were more perfectly analogous, and even if
requests once it ascertains that the results of the review are
not likely to be in its favor”; and concluding that “if a
request for rescission is made after the expiration of the 90-
day deadline, the decision to rescind a review will be at
[Commerce]’s discretion”).
73
19 C.F.R. § 351.213(f); id. at § 351.204(d)(2) (“A voluntary
respondent accepted for individual examination . . . will be
subject to the same requirements as [the mandatory respondents],
including . . ., where applicable, the use of the facts
available under [19 U.S.C. § 1677e] and [19 C.F.R.] § 351.308[,
both of which provide authorization for the use of adverse
inference in response to companies’ failure to cooperate.]”).
74
See supra note 72 (quoting relevant language).
Court No. 14-00092 Page 31
Grobest were correct that Commerce should have applied a
mandatory balancing test that weighed, “[o]n the one hand, the
respondent’s request to withdraw, and on the other hand the
amount of resources that Commerce has expended at the moment
that request is made and the desire to discourage procedural
abuses,”75 the weight of the evidence here supports the
reasonableness of Commerce’s decision. Contrary to Grobest’s
contentions, Commerce had not merely issued a notice of
initiation for the court-ordered reconducted review when Grobest
requested to terminate the proceeding. Rather, as is evident
from the agency’s supplemental questionnaire – which Commerce
sent to Grobest shortly after the latter’s withdrawal request
(keeping the holiday break in mind)76 – upon initiating this
proceeding Commerce promptly examined Grobest’s submissions.
Indeed, Commerce found numerous material discrepancies in
Grobest’s representations with regard to the company’s
affiliations, the quantity and value of its sales of subject
merchandise, and its factors of production.77 Thus this is
75
Oral Arg. Tr., ECF No. 50, at 10.
76
See Grobest’s Suppl. Quest., ECF No. 45-1 (dated Jan. 15,
2013); Grobest’s 1st Withdrawal Req., ECF Nos. 25 & 26 at Tab 10
Attach. 1 (dated Dec. 12, 2012).
77
See Grobest’s Suppl. Quest., ECF No. 45-1, at 1; Reconducted
AR4 Prelim. I&D Mem. at 9 (explaining the agency’s concern “that
(footnote continued)
Court No. 14-00092 Page 32
precisely the situation contemplated by the example Commerce
provided in Antidumping Duties; Countervailing Duties, 62 Fed.
Reg. at 27,317 – on which Grobest now relies in support of its
balancing test – where “a party request[ed] a review, [Commerce]
devote[d] considerable time and resources to the review, and
then the party withdr[ew] its requests once it ascertain[ed]
that the results of the review [were] not likely to be in its
favor.”
Moreover the issue here, as Grobest concedes, is not
whether Commerce should have rescinded its review of Grobest,
but instead whether Commerce should have permitted Grobest to
elect to keep its ‘all-others’ rate rather than cooperate in the
individualized re-examination that Commerce initiated pursuant
to the judgment order in Grobest II.78 On this question,
Grobest does not benefit from failing to cooperate in [the
reconducted] review by refusing to respond to [Commerce]’s
request for complete information regarding its affiliations,
sales of subject merchandise, and factors of production”)
(unchanged in Reconducted AR4 Final Results, 79 Fed. Reg. at
15,310).
78
See, e.g., Grobest’s Resp. to Suppl. Quest., ECF Nos. 25 & 26
at Tab 10 Attach. 4, at 2 (“[Grobest] did not request that the
fourth administrative review be rescinded for Grobest. We
merely requested rescission of the company’s full examination as
a voluntary respondent. . . . Grobest was already subject to
[the fourth review] (based on both Grobest’s and Domestic
Producers’ review requests) and was assigned a separate rate of
3.92%, based on the average of the mandatory respondents’
dumping rates . . . . [Grobest’s] request would not upset this
(footnote continued)
Court No. 14-00092 Page 33
Commerce’s regulations provide that, as an accepted voluntary
respondent, Grobest was subject to the same requirements as the
mandatory respondents. Just as “[m]andatory respondents may not
dictate their level of participation for the purposes of
determining a more favorable separate rate based on another
party’s data . . . [and therefore] must provide all information
that has been requested by [Commerce] and not selectively choose
which requests to respond to and which information to submit,”79
voluntary respondents accepted for individual examination
similarly may not refuse to respond to Commerce’s requests for
information in order to obtain a more favorable ‘all-others’
rate.
Grobest argues that, rather than attempting to
manipulate the system and obtain a more favorable ‘all-others’
rate, the company realized that, having gone through a messy
dissolution of the joint venture that constituted Grobest at the
time that it initially requested to be individually examined, it
[previously assigned] rate [i.e., Grobest’s request would permit
the company to elect to keep its predetermined ‘all-others’
rate].”).
79
Issues & Decision Mem., Wooden Bedroom Furniture from the
People’s Republic of China, A-570-890, ARP 1/12-12/12 (Aug. 25,
2014) (adopted in 79 Fed. Reg. 51,954 (Dep’t Commerce Sept. 2,
2014) (final results of antidumping duty administrative review
and new shipper review; 2012)) cmt. 2 at 8.
Court No. 14-00092 Page 34
was no longer able to “carry out a proper verification” and
certify to the accuracy of its responses to Commerce’s
inquiries, contending that it alerted Commerce to this as soon
as the situation became apparent.80 But the statute provides a
procedure for companies experiencing difficulties with
responding to Commerce’s inquiries, which Grobest neglected to
follow. Specifically, “[i]f an interested party, promptly after
receiving a request from [Commerce] for information, notifies
[Commerce] that such party is unable to submit the information
requested in the requested form and manner, together with a full
explanation and suggested alternative forms in which such party
is able to submit the information, [then Commerce] shall
consider the ability of the interested party to submit the
information in the requested form and manner and may modify such
requirements to the extent necessary to avoid imposing an
unreasonable burden on that party.”81 But rather than providing
80
See Oral Arg. Tr, ECF No. 50, at 37; see also id. at 5-6,
11-12.
81
19 U.S.C. 1677m(c)(1) (emphasis added); see also id. at
1677m(c)(2) (“[Commerce] shall take into account any
difficulties experienced by interested parties, particularly
small companies, in supplying information requested by
[Commerce] in connection with [antidumping administrative]
reviews under this subtitle, and shall provide to such
interested parties any assistance that is practicable in
supplying such information.”).
Court No. 14-00092 Page 35
a full explanation and suggested alternatives, Grobest simply
stated that “the administrative and legal costs of this
examination are greater than the company wishes to incur at this
time.”82 This is not an explanation of any difficulties that
Grobest may have had with submitting the information requested,
but rather is a conscious decision not to incur the costs of
cooperating with Commerce’s examination.
Thus, for all of the foregoing reasons, Commerce was
not required by any statutory or regulatory authority to abort
its court-ordered individual re-examination of Grobest simply
because Grobest changed its mind regarding the benefit of such
examination.83 In evaluating Grobest’s request to discontinue
82
Grobest’s 1st Withdrawal Req., ECF Nos. 25 & 26 at Tab 10
Attach. 1, at 2; Grobest’s 2d Withdrawal Req., ECF Nos. 25 & 26
at Tab 10 Attach. 3.
83
The question of whether Commerce may have discontinued the
examination is not at issue here, see Reconducted AR4 Final I&D
Mem. cmt. 1 at 5 (“[Commerce] does not find it necessary to
address [the Petitioners’] argument [that Commerce does not have
authority to terminate the individualized examination of a
voluntary respondent once it initiates], because [Commerce]
determined not to [abort Grobest’s individualized
investigation].”), and accordingly no opinion in this regard is
expressed herein. See also Def.’s Br., ECF No. 33, at 11 n.5
(“The issue of whether a voluntary respondent may withdraw its
request before it has been accepted for individual examination
is not presented here.”); cf. 19 C.F.R. § 351.204(d) (providing
that “[a] voluntary respondent accepted for individual
examination under [19 U.S.C. § 1677m(a) and 19 C.F.R.
§ 351.204(d)(1)] will be subject to the same requirements as
[mandatory respondents]”) (emphasis added). Although Commerce
(footnote continued)
Court No. 14-00092 Page 36
the re-examination, Commerce emphasized the significant
resources that the agency had already expended in connection
with Grobest’s initial demand for individualized review,84 and
explained that while “Grobest’s principle contention is that it
is unwilling to incur the administrative and legal costs
associated with participating in the administrative review[,]
. . . a company may not impede an antidumping proceeding by
refusing to incur administrative and legal costs associated with
participating in the proceeding.”85 Just as the 90-day
limitation on withdrawing requests for review aims to “prevent
abuse of the procedures for requesting and withdrawing a review
. . . [when Commerce] devotes considerable time and resources to
the review, and then the party withdraws its requests once it
ascertains that the results of the review are not likely to be
accurately states that it was required by this Court’s judgment
order in Grobest II to conduct the individual re-examination of
Grobest, see, e.g., Reconducted AR4 Final I&D Mem. cmt. 1 at 5
(“Given the unique circumstances surrounding this review,
including the Final Judgment [in Grobest II] and the request for
review by Petitioners, [Commerce] must conduct the individual
examination of Grobest as ordered by the Court.”), had Commerce
been inclined to accept Grobest’s request to discontinue the re-
examination, the parties could have moved under USCIT
R. 60(b)(6) for relief from the judgment order in Grobest II.
84
Reconducted AR4 Prelim. I&D Mem. at 7.
85
Id.
Court No. 14-00092 Page 37
in its favor,”86 so too the prevention of abuse where Commerce
expends resources to initiate an individual examination – and
the respondent seeks to withdraw its participation when it
changes its mind about the benefit of such examination and
prefers the ‘all others’ rate instead – is a reasonable basis on
which Commerce may decline to abort its examination.
Accordingly, because Commerce’s determination to
continue its re-examination of Grobest notwithstanding Grobest’s
change of heart was reasonable on the record presented here, it
is supported by substantial evidence, and is therefore affirmed.
III. Given Its Uncontested Factual Findings, Commerce Properly
Used Adverse Facts Available to Establish Grobest’s
Antidumping Duty Rate.
Regarding the antidumping duty rate ultimately
established for Grobest as a result of Commerce’s re-
examination, Grobest argues that this rate was “impermissibly
punitive.”87 But Grobest does not challenge the particular
findings on which Commerce based this rate.88 Specifically,
Commerce found that “Grobest withheld requested information, and
86
Antidumping Duties; Countervailing Duties, 62 Fed. Reg.
27,296, 27,317 (Dep’t Commerce May 19, 1997) (final rule)
(discussing 19 C.F.R. § 351.213(d)(1)).
87
Pl.’s Br., ECF No. 24, at 20, 22.
88
See id.
Court No. 14-00092 Page 38
significantly impeded this proceeding,” within the meaning of
19 U.S.C. §§ 1677e(a)(2)(A) and (C),89 and that “Grobest has not
cooperated to the best of its ability,” within the meaning of
19 U.S.C. § 1677e(b).90 Given these uncontested findings,
Commerce properly resorted to “the facts otherwise available in
reaching [its] determination,”91 and properly “use[d] an
inference that is adverse to the interests of [Grobest] in
selecting from among the facts otherwise available.”92 The
statute explicitly provides that “[s]uch adverse inference may
include reliance on information derived from . . . the
petition,”93 and here Commerce selected a rate derived from the
petition.94 Because a dumping margin based on adverse facts
available “is not a punitive measure” when determined in
89
Reconducted AR4 Final I&D Mem. cmt. 2 at 6.
90
Id. at 6-7.
91
See 19 U.S.C. § 1677e(a).
92
See id. at § 1677e(b).
93
Id. at § 1677e(b)(1).
94
Reconducted AR4 Final I&D Mem. cmt. 2 at 7 & n.27. Commerce
also explained that this rate “is not punitive because it has
been corroborated and continues to have probative value.” Id.
(citations to corroboration history omitted). Grobest presents
no specific challenge to this analysis. See Pl.’s Br.,
ECF No. 24, at 20-22.
Court No. 14-00092 Page 39
accordance with the requirements of 19 U.S.C. § 1677e,95 because
Commerce’s uncontested findings regarding Grobest’s withholding
of information and failure to cooperate satisfy Section 1677e’s
requirements for Commerce’s reliance on information derived from
the petition, and because, in the absence of a specific
challenge, the secondary information relied on appears to have
been properly corroborated in accordance with 19 U.S.C.
§ 1677e(c),96 the rate established for Grobest as a result of its
re-examination in this reconducted review is affirmed.
CONCLUSION
For all of the foregoing reasons, Commerce’s final
results with respect to Grobest in the reconducted fourth
administrative review of this antidumping duty order are
affirmed. Judgment will issue accordingly.
/s/ Donald C. Pogue______
Donald C. Pogue, Senior Judge
Dated: July 30, 2015
New York, NY
95
KYD, Inc. v. United States, 607 F.3d 760, 768 (Fed.
Cir. 2010).
96
See Reconducted AR4 Final I&D Mem. cmt. 2 at 7 & n.29.