Amanda Foods (Vietnam) Ltd. v. United States

Slip Op. 11 - 155

UNITED STATES COURT OF INTERNATIONAL TRADE

AMANDA FOODS (VIETNAM) LTD.,

et al.

Plaintiffs,

v.

UNITED STATES, Before: Donald C. Pogue,

Chief Judge

Defendant,

Consol. Court No. 09-00431

and

AD HOC SHRIMP TRADE ACTION

COMMITTEE and THE DOMESTIC

PROCESSORS,

Defendant-

Intervenors.

OPINION AND ORDER

[Remanding Department of Commerce’s final results of

administrative review of antidumping duty order]

Dated: December 14, 2011

Matthew J. McConkey and Jeffrey C. Lowe, Mayer Brown LLP, of

Washington, DC, for Plaintiff Amanda Foods (Vietnam) Ltd.

John J. Kenkel and James K. Horgan, DeKieffer & Horgan, of

Washington, DC, for Consolidated Plaintiff Viet Hai Seafood Co.,

Ltd.

Matthew R. Nicely and David S. Christy, Thompson Hine LLP,

of Washington, DC, for Consolidated Plaintiffs Bac Lieu Fisheries

Joint Stock Co.; Ca Mau Seafood Joint Stock Co.; Cadovimex

Seafood Import-Export and Processing Joint-Stock Co.; Cafatex

Fishery Joint Stock Corp.; Coastal Fisheries Development Corp.;

Cuulong Seaproducts Co.; Danang Seaproducts Import Export Corp.;

Investment Commerce Fisheries Corp.; Minh Hai Export Frozen

Seafood Processing Joint-Stock Co.; Minh Hai Joint-Stock Seafoods

Processing Co.; Ngoc Sinh Private Enter.; Nha Trang Fisheries

Consol. Court No. 09-00431 Page 2

Joint Stock Co.; Nha Trang Seaproduct Co.; Phu Cuong Seafood

Processing & Import-Export Co., Ltd.; Sao Ta Foods Joint Stock

Co.; Soc Trang Seafood Joint Stock Co.; Thuan Phuoc Seafoods and

Trading Corp.; UTXI Aquatic Products Processing Corp.; Viet Foods

Co., Ltd.; Vinh Loi Import Export Co.

Robert G. Gosselink and Jonathan M. Freed, Trade Pacific,

PLLC, of Washington, DC, for Consolidated Plaintiff Cam Ranh

Seafoods Processing Enter. Co.

Joshua E. Kurland, Trial Attorney, Commercial Litigation

Branch, Civil Division, United States Department of Justice, of

Washington, DC, for Defendant. With him on the briefs were Tony

West, Assistant Attorney General, Jeanne E. Davidson, Director,

and Patricia M. McCarthy, Assistant Director. Of counsel on the

brief was Jonathan M. Zielinski, Attorney, Office of the Chief

Counsel for Import Administration, U.S. Department of Commerce,

of Washington, D.C.

Andrew W. Kentz, Jordan C. Kahn, and Nathaniel M. Rickard,

Pickard, Kentz & Rowe, LLP, of Washington, DC, for Defendant-

Intervenor Ad Hoc Shrimp Trade Action Committee

Elizabeth J. Drake, Geert M. De Prest, and Wesley K. Caine,

Stewart and Stewart, of Washington, DC, and Edward T. Hayes,

Leake & Anderson, LLP, of New Orleans, LA, for Defendant-

Intervenor The Domestic Processors.

Pogue, Chief Judge: In this action, the Plaintiffs seek

review of two determinations by the United States Department of

Commerce (“Commerce” or “the Department”) in the final results of

the third administrative review of the antidumping duty order

covering certain frozen warmwater shrimp from the Socialist

Republic of Vietnam (“Vietnam”).1

1

Certain Frozen Warmwater Shrimp From the Socialist

Republic of Vietnam, 74 Fed. Reg. 47,191 (Dep’t Commerce Sept.

15, 2009) (final results and final partial rescission of

antidumping duty administrative review) (“Final Results”), and

accompanying Issues & Decision Memorandum, A-552-802, ARP 07-08

(Sept. 8, 2009), Admin. R. Pub. Doc. 303 (“I & D Mem.”) (adopted

Consol. Court No. 09-00431 Page 3

First, Plaintiff Amanda Foods (Vietnam) Ltd. (“Amanda

Foods”), challenges the Department’s calculation of separate

rates for cooperative, non-individually investigated respondents.

This issue will be voluntarily remanded to Commerce for review in

light of the Court’s decision in Amanda Foods (Vietnam) Ltd. v.

United States, CIT , 774 F. Supp. 2d 1286 (2011). Order,

Aug. 9, 2011, ECF No. 56.2

Second, Plaintiff Viet Hai Seafood Co., Ltd. a/k/a Vietnam

Fish One Co., Ltd. (“Fish One”) challenges the Department’s

determination not to revoke the antidumping duty order with

regard to Fish One under the Department’s statutory authority

provided by Section 751(d) of the Tariff Act of 1930, as amended,

19 U.S.C. § 1675(d) (2006).3 This second issue is the focus of

this opinion.

The court has jurisdiction pursuant to 19 U.S.C.

in Final Results, 74 Fed. Reg. at 47,191–92).

2

Execution of this remand order was stayed pending

resolution of the second issue raised in this case.

3

In relevant part, the statute states:

[Commerce] may revoke, in whole or in part, . . . an

antidumping duty order or finding . . . after review

under subsection (a) or (b) of this section.

19 U.S.C. § 1675(d)(1).

All further citations to the Tariff Act of 1930, as amended, are

to Title 19 of the U.S. Code, 2006 edition.

Consol. Court No. 09-00431 Page 4

§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c).

As explained below, the court concludes that (I) Commerce’s

interpretation of the revocation statute is a reasonable

interpretation of an ambiguous provision and consistent with

Commerce’s reasonable interpretation of its own regulations and

policies regarding revocation for non-mandatory respondents; (II)

because Fish One failed to exhaust its administrative remedies,

it may not now challenge the mandatory respondent selection

process; and (III) Fish One is not entitled to revocation based

on three years of de minimis dumping margins.

BACKGROUND

Fish One is among the companies subject to Commerce’s

February 1, 2005, antidumping duty order covering certain frozen

warmwater shrimp from Vietnam.4 Fish One requested a review of

its sales covered by the order for the 2007–2008 period (the

third administrative review) and also requested revocation of the

antidumping duty order pursuant to 19 U.S.C. § 1675(d) and 19

C.F.R. § 351.222(b)(2) (2011).5 Letter from DeKieffer & Horgan to

Secretary, U.S. Department of Commerce 1 (Feb. 29, 2008), Admin.

4

Certain Frozen Warmwater Shrimp from the Socialist

Republic of Vietnam, 70 Fed. Reg. 5,152, 5,154 (Dep’t Commerce

Feb. 1, 2005) (notice of amended final determination of sales at

less than fair value and antidumping duty order)(the “order” or

“ADD order”).

5

All subsequent citations to the Code of Federal

Regulations are to the 2011 edition, unless otherwise noted.

Consol. Court No. 09-00431 Page 5

R. Pub. Doc. 9.

As required by the statute, Commerce initiated the third

administrative review,6 and, in due course, issued its

preliminary results of the review.7 In the Preliminary Results,

Commerce determined, “not to revoke the Order with respect to

Fish One.” Preliminary Results, 74 Fed. Reg. at 10,011.

Commerce found Fish One ineligible for revocation because it

was not chosen as a mandatory respondent.8 Id. According to

6

Frozen Warmwater Shrimp from the Socialist Republic of

Vietnam and the People’s Republic of China, 73 Fed. Reg. 18,739

(Dep’t Commerce Apr. 7, 2008) (notice of initiation of

administrative reviews of antidumping duty orders)(“Notice of

Initiation”).

Commerce did not publish with the Notice of Initiation a

“Request for Revocation of Order (in part)” in response to Fish

One’s request for revocation. Mem. of Pl. Supp. Mot. J. Agency R.

5, ECF No. 59-2 (“Pl.’s Br.”); see 19 C.F.R. § 351.222(f)(2)(i)

(“[Commerce] will publish with the notice of initiation under

§ 351.221(b)(1), notice of “Request for Revocation of Order (in

part) . . . .”).

7

Certain Frozen Warmwater Shrimp from the Socialist

Republic of Vietnam, 74 Fed. Reg. 10,009 (Dep’t Commerce Mar. 9,

2009) (preliminary results, preliminary partial rescission and

request for revocation, in part, of the third administrative

review) (“Preliminary Results”).

Commerce did not acknowledge Fish One’s request for

revocation until Commerce issued the Preliminary Results. In the

Preliminary Results, Commerce stated that it had “inadvertently

omitted Fish One’s request for revocation within the Initiation

Notice.” Id. at 10,011.

8

In response to the Notice of Initiation, Commerce received

110 requests for review, of which twenty-eight companies

requested a separate rate. Preliminary Results, 74 Fed. Reg. at

10,009–10. Due to the large number of respondents, Commerce

chose to limit the number of companies individually reviewed

according to 19 U.S.C. § 1677f-1(c)(2)(B), choosing three

Consol. Court No. 09-00431 Page 6

Commerce,

[t]he Department does not interpret the regulation as

requiring it to conduct an individual examination of

Fish One, or a verification of Fish One’s data, where,

as here, the Department determined to limit its

examination to a reasonable number of exporters in

accordance with [19 U.S.C. § 1677f-1(c)(2)(B)9], and

Fish One was not one of those companies selected under

this provision.

Id. Commerce neither altered its determination or its basic

companies — Camimex, Min Phu Group, and Phuong Nam Co., Ltd. — as

mandatory respondents. Id. at 10,010. Neither Fish One, nor any

other respondent, challenged Commerce’s determination that the

number of respondents was large, necessitating the invocation of

§ 1677f-1(c)(2).

9

19 U.S.C. § 1677f-1(c) provides:

(1) General rule

In determining weighted average dumping margins

under . . . 1675(a) of this title, [Commerce] shall

determine the individual weighted average dumping

margin for each known exporter and producer of the

subject merchandise.

(2) Exception

If it is not practicable to make individual

weighted average dumping margin determinations under

paragraph (1) because of the large number of exporters

or producers involved in the investigation or review,

[Commerce] may determine the weighted average dumping

margins for a reasonable number of exporters or

producers by limiting its examination to––

(A) a sample of exporters, producers, or types of

products that is statistically valid based on the

information available to [Commerce] at the time of

selection, or

(B) exporters and producers accounting for the

largest volume of the subject merchandise from the

exporting country that can be reasonably examined.

Consol. Court No. 09-00431 Page 7

rationale in the Final Results.10 See Final Results, 74 Fed. Reg.

at 47,193; I & D Mem. Cmt. 16 at 57–63.

STANDARD OF REVIEW

When reviewing the Department’s decisions made in

administrative reviews of antidumping duty orders, the court

“shall hold unlawful any determination, finding, or conclusion

found . . . to be unsupported by substantial evidence on the

record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i).

DISCUSSION

Fish One makes three principle arguments before the court.

Fish One first contends that the Department’s determination not

to individually review its sales for the purpose of revocation is

not in accordance with law because it is (A) contrary to

Congressional intent, (B) an unreasonable interpretation of the

statute, (C) counter to the Department’s regulations, and (D)

inconsistent with the Department’s precedent and policy. Second,

Fish One contends that Commerce employed a flawed process for

selecting mandatory respondents. Third, Fish One contends that

the zero percent dumping margin assigned to it in the Final

Results entitles it to revocation. Each of these arguments are

10

Fish One did qualify for separate rate status and

received a zero margin. Final Results, 74 Fed. Reg. 47,195–96.

Thus, Fish One was a non-selected, separate rate respondent in

this review.

Consol. Court No. 09-00431 Page 8

considered separately.

I. The Department’s determination not to individually review

Fish One for the purpose of revocation is based on a

reasonable interpretation of the statute, regulations, and

agency policies

The heart of the parties’ dispute is their disagreement over

the existence and nature of a “revocation review” under 19 U.S.C.

§ 1675(d). Specifically, Fish One asks the court to conclude

that § 1675(d) requires Commerce to conduct an individual review

upon receipt of a request for revocation.

Commerce contends that § 1675(d) permits the revocation of

an anti-dumping duty order after a § 1675(a) review, also

referred to as an administrative review, but does not create a

separate revocation review process.11 Def’s Resp. to Pl.’s Mot.

J. Admin. R. 8–10, ECF No. 67 (“Def.’s Resp. Br.”). Fish One

argues, in contrast, that § 1675(d) mandates a separate and

parallel revocation review that is to be conducted simultaneously

with a § 1675(a) administrative review. Pl.’s Br. 11–14.

Resolving these differing interpretations requires

consideration of the interplay of three statutory provisions (19

U.S.C. §§ 1675(a), 1675(d), and 1677f-1(c)(2)), all relating to

administrative review of antidumping duty orders.

11

Revocation is also available following a § 1675(b) review

for changed circumstances; however, the facts of this case

concern a § 1675(a) review, therefore the discussion will be

limited to revocation following a § 1675(a) review.

Consol. Court No. 09-00431 Page 9

According to Commerce’s view, the § 1677f-1(c)(2) provision

for limiting the number of respondents in an administrative

review also limits the number of respondents eligible for

revocation. To Commerce, because an administrative review is a

prerequisite for revocation, if a respondent is excluded from

review under § 1677f-1(c)(2), they are also excluded from

revocation. Thus, in its Final Results, Commerce reasoned that

“pursuant to [19 U.S.C. § 1677f-1(c)(2)(B)], . . . it could

reasonably examine the three largest exporters by volume” and

because “Fish One was not included among the top three, the

Department was under no obligation to select Fish One for

individual examination.” I & D Mem. Cmt. 16 at 61.

Fish One contests Commerce’s interpretation, arguing that

because the text of § 1677f-1(c)(2) does not make mention of

§ 1675(d), the former cannot be applied as an exception to the

latter. To Fish One, § 1677f-1(c)(2) applies only to

administrative reviews under § 1675(a), and because revocation

reviews under § 1675(d) are separate and parallel, they are

outside the purview of § 1677f-1(c)(2). Therefore, in Fish One’s

opinion, “[n]owhere in the statute is there any limitation on the

review of revocation requests.” Pl.’s Br. 12. Accordingly, Fish

One claims that “Congress has spoken and Commerce has no leeway.

. . . Commerce must strictly follow the revocation provision of

the statute.” Id. Fish One further contends that Commerce has

Consol. Court No. 09-00431 Page 10

acknowledged the parallel review process by making revocation

reviews mandatory under its regulations. Id. at 14–16.

Because Fish One challenges Commerce’s interpretation of the

statute, this question is reviewed using the familiar two step

framework required by the Supreme Court’s decision in Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842–45 (1984).12

12

Under Chevron, first the court must determine if

“Congress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842 (“If the intent of Congress is clear,

that is the end of the matter . . . .”). When determining

whether Congress has spoken to the precise question at issue, the

court makes recourse to the traditional tools of statutory

construction. Id. at 843 n.9. The primary tool for discerning

Congressional intent is the plain meaning of the statute’s text,

but if the plain meaning does not resolve the issue, then the

court will turn to the statute’s structure, canons of statutory

construction, and may also consider legislative history. Timex

V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998).

If, after employing the tools of statutory construction

under step one, the court determines that “the statute is silent

or ambiguous with respect to the specific issue,” then the court

must determine whether the agency’s interpretation of the statute

is reasonable. Chevron, 467 U.S. at 843; see also Windmill Int’l

Pte. v. United States, 26 CIT 221, 223, 193 F. Supp. 2d 1303,

1306 (2002). An agency’s interpretation will be upheld, so long

as it is a reasonable interpretation. “[Commerce’s] construction

need not be the only reasonable interpretation or even the most

reasonable interpretation. . . . Rather, a court must defer to an

agency’s reasonable interpretation of a statute even if the court

might have preferred another.” Timken Co. v. United States, 354

F.3d 1334, 1342 (Fed. Cir. 2004) (quoting Koyo Seiko Co. v.

United States, 36 F.3d 1565, 1570 (Fed. Cir. 1994) (ellipses in

original)). When evaluating the reasonableness of Commerce’s

interpretation, the Court considers, inter alia, “the express

terms of the provisions at issue, the objectives of those

provisions and the objectives of the antidumping scheme as a

whole.” Windmill Int’l Pte., 26 CIT at 223, 193 F. Supp. 2d

at 1306.

Consol. Court No. 09-00431 Page 11

A. The statute is ambiguous regarding individual review

following a request for revocation

The plain meaning of 19 U.S.C. § 1675(d) is little help in

resolving the question at issue. As noted above, the provision

states in relevant part:

[Commerce] may revoke, in whole or in part, . . . an

antidumping duty order or finding . . . after review

under subsection (a) or (b) of this section.

19 U.S.C. § 1675(d). This language provides no indication of

whether a revocation request mandates an individual review.

Rather, the “language provides minimal guidance other than

providing that the revocation should be carried out ‘after review

under subsection (a) [a periodic administrative review] or (b) [a

changed circumstances review] . . . .’” Sahaviriya Steel Indus.

v. United States, 649 F.3d 1371, 1376 (Fed. Cir. 2011) (quoting

19 U.S.C. § 1675(d)(1)).

The statute is clear that a respondent subject to an

antidumping duty order must undergo a § 1675(a) administrative

review or a § 1675(b) changed circumstances review before the

order is revoked under § 1675(d). But whether and how that

review is to be conducted is not addressed by § 1675(d). See

Sahaviriya Steel, 649 F.3d at 1376 (“The language of the statute

is silent as to the conditions that might warrant the revocation

of an antidumping duty order or the particular circumstances that

would trigger such action.”). The statute’s ambiguity on this

Consol. Court No. 09-00431 Page 12

point means that “Commerce was left by Congress to promulgate

guidelines as to when revocations ‘in whole or in part’ are

appropriate and to set forth proper procedures therefore.” Id.

(citing Chevron, 467 U.S. at 843).

Fish One argues that all statutory language must be given

effect, which requires the separate provisions at §§ 1675(a) and

(d) to be interpreted as independent review processes; therefore,

“[s]ince it is ‘possible’ to implement both provisions of the

statute, Commerce should have done so,” Pl.’s Br. 12–13; see

Meeks v. West, 216 F.3d 1363, 1366–67 (Fed. Cir. 2000).

It is not true, however, that giving each provision of the

statute such full, independent effect is the only way to

“fit . . . all parts [of the statute] into an harmonious whole.”

FTC v. Mandel Bros., 359 U.S. 385, 389 (1959). Rather, “words of

a statute must be read in their context and with a view to their

place in the overall statutory scheme.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Mich.

Dept. of Treasury, 489 U.S. 803, 809 (1989)). Whether Commerce’s

interpretation of the overall statutory scheme governing review

is reasonable will be taken up below; for now it is sufficient to

state that Plaintiff’s argument that §§ 1675(a), 1675(d), and

1677f-1(c)(2) cannot be read together, but must be given

independent effect, is inconsistent with established practices of

statutory construction that seek to interpret the statutory

Consol. Court No. 09-00431 Page 13

scheme as a harmonious whole. Furthermore, though the statute is

clear that revocation cannot occur absent review, the statute is

ambiguous regarding the trigger and form of that review.

B. The Department’s interpretation is reasonable

As noted above, Commerce has interpreted the exception to

individual review of an antidumping duty order found at

§ 1677f-1(c)(2) to be applicable to revocation under § 1675(d).

In short, Commerce argues that because Fish One was not chosen

for mandatory review under § 1677f-1(c)(2)(B), it had no

subsequent right to an individual review for the purposes of

revocation. See Preliminary Results, 74 Fed. Reg. at 10,011–12.

Fish One argues in response that “the statute does not limit

revocation review in any manner. Without such limitation,

Commerce must conduct a revocation review if requested. A mere

request by a respondent triggers the pertinent section of the

Statute.” Pl.’s Br. 14.

Fish One’s argument finds no support in the language of the

statute. Nowhere in the text of § 1675(d) is there mention of a

“request for revocation” nor does § 1675(d) contain any language

that compels the Department to do anything. As this Court has

previously held, the statutory language of § 1675(d) places the

discretionary authority to revoke with Commerce. See Hyundai

Elec. Co. v. United States, 23 CIT 302, 308, 52 F. Supp. 2d 1334,

1340 (1999) (holding that “may revoke” language in statute

Consol. Court No. 09-00431 Page 14

conferred discretion on Commerce).13 To conclude that Commerce

is required to initiate a review based on a statutory provision

that does no more than give Commerce the discretion to revoke an

order is contrary to the plain language of the statute.

Nor does the Plaintiff’s argument for the unreasonableness

of the Department’s interpretation find a basis in the objectives

of these provisions or the antidumping scheme as a whole. See

Windmill Int’l Pte., 26 CIT at 223, 193 F. Supp. 2d at 1306. In

this regard, the history of the relevant provisions is helpful.

Administrative review of antidumping duty orders was first

provided for in the Trade Agreement Act of 1979, Pub. L. No.

96-39, § 751(a), 93 Stat. 144, 175 (1979) (codified at 19 U.S.C.

§ 1675(a)). In its first incarnation, § 1675(a) made annual,

administrative reviews mandatory.14 What is now § 1675(d) was

13

Hyundai also held that the “may revoke” language in the

regulation conferred discretion on Commerce. See Hyundai, 23 CIT

at 308, 53 F. Supp. 2d at 1340; 19 C.F.R. § 353.25(a)(2) (1997)

(“[Commerce] may revoke an order in part if . . . .”). In 1999,

Commerce changed the language of the regulation so that it read

“If [Commerce] determines . . . that the antidumping duty

order . . . is no longer warranted, [Commerce] will revoke the

order . . . .”). 19 C.F.R. § 351.222(b)(1)(ii) (2000); see also

Amended Regulation Concerning the Revocation of Antidumping and

Countervailing Duty Orders, 64 Fed. Reg. 51,236, 51,239 (Dep’t

Commerce Sept. 22, 1999). Whether Commerce’s regulations impose

upon it any obligation to revoke an order is discussed below.

14

“At least once during each 12-month period . . .

[Commerce], after publication of notice of such review in the

Federal Register, shall review, and determine . . . the amount of

any antidumping duty.” 19 U.S.C. § 1675(a)(1)(B) (1982); §

751(a)(1)(B), 93 Stat. at 175.

Consol. Court No. 09-00431 Page 15

also introduced in the Trade Agreement Act of 1979 using the same

language that remains in force today.15 § 751(c), 93 Stat. at

176. In the Trade and Tariff Act of 1984, Pub. L. No. 98-573,

§ 611(a)(2), 98 Stat. 2948, 3031 (1984), Congress amended §

1675(a) by adding the language, “if a request for such a review

has been received.” The effect of this amendment was to cease

mandatory annual review and place the burden for requesting

review on the interested parties. Also in the Trade and Tariff

Act of 1984, Congress added § 1677f-1, which permitted Commerce

to use sampling and averaging when conducting § 1675 reviews.

§ 620(a), 98 Stat. at 3039. Finally, in the Uruguay Round

Agreements Act, Congress amended § 1677f-1 by adding subsection

(c) as it now reads, including the requirement for individual

review when determining dumping margins and the exceptions to

individual review. § 229(a), 108 Stat. at 4889. Throughout the

various modifications noted here, the relevant language of §

1675(d) has remained consistent. Compare § 751(c), 93 Stat. at

176, with 19 U.S.C. § 1675(d) (2006).

This history points to two important considerations. First,

in the original incarnation of § 1675, the revocation provision

15

What is now 19 U.S.C. § 1675(d) was originally designated

as 19 U.S.C. § 1675(c), § 751(c), 93 Stat. at 176; 19 U.S.C. §

1675(c) (1982), and later re-designated § 1675(d) when a new

provision was added regarding five year review, Uruguay Round

Agreements Act, Pub. L. No. 103-465, § 220(a), 108 Stat. 4809,

4861–64 (1994).

Consol. Court No. 09-00431 Page 16

in § 1675(d) existed in the context of a mandatory, annual review

as required by § 1675(a). Thus, each year an annual review would

be conducted, after which Commerce could make § 1675(d)

revocation decisions. Though the statutory scheme has changed

over time, § 1675(d) has remained consistent, and “provisions

introduced by an amendatory act should be read together with

provisions of the original section that were reenacted or left

unchanged as if they had been originally enacted as one section.”

1A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction § 22.34, at 395–96 (7th ed. 2009).

Second, in amending the statutory scheme, Congress has

sought to achieve a balance of fairness and efficiency. On the

one hand, § 1675(d)(1) provided an opportunity for revocation

indispensable to the fair administration of the antidumping duty

regime. However, Congress has also evidenced a concern with the

efficient administration of the regime and, in particular, with

moderating the administrative burden placed on Commerce. See

IPSCO, Inc. v. United States, 12 CIT 676, 678, 692 F. Supp. 1368,

1370–71 (1988) (reviewing the legislative history of amendments

to 19 U.S.C. § 1675 and noting Congress’s emphasis on lessening

the burden on Commerce as well as petitioners and respondents).

Both the removal of the mandatory annual review under § 1675(a)

and the introduction of § 1677f-1(c)(2) indicate a Congressional

intent to strike a balance between fairness and efficiency in the

Consol. Court No. 09-00431 Page 17

administration of the antidumping duty regime, particularly in

the process of review.

Both the statutory structure and Congress’s intent to

balance fairness and efficiency suggest that the Department’s

interpretation is reasonable. Commerce’s decision to subordinate

revocation decisions under § 1675(d) to the review process,

including § 1677f-1(c)(2), tracks the structure of the statute

and maintains the balance between fairness and efficiency.

Moreover, as will be discussed below, Commerce’s interpretation

does not eliminate Fish One’s opportunity for selection as a

voluntary respondent and therefore does not foreclose Fish One’s

opportunity for review and revocation. In addition, Defendant-

Intervenor’s point out that recognition of Commerce’s resource

constraints is not a factor that limits only the opportunity for

respondents to obtain review. Rather, it also limits the

opportunity for domestic producers to obtain review of additional

respondents. Accordingly, because the statutory language is

ambiguous and the Department’s interpretation is reasonable, the

court defers to Commerce’s interpretation of the statute. See

Chevron, 467 U.S. at 842–45.

Consol. Court No. 09-00431 Page 18

C. Commerce’s interpretation of its regulations is

reasonable and consistent with its interpretation of

the statute

Fish One next argues that Commerce has failed to abide by

its own regulations, once again resting this argument on the

notion that an administrative review and a revocation review are

separate and independent procedures. Pl.’s Br. 14–16. Fish One

claims that the Department’s regulations require the initiation

of a revocation review upon request by a party and that Commerce

violated its regulations on revocation when it did not conduct a

revocation review upon Fish One’s request. Id. Under this

theory, Fish One points to language in 19 C.F.R. § 351.222(f)(2),

which it argues compels Commerce to take specific, enumerated

actions with regard to a request for revocation.16 Plaintiff

makes much of the fact that the “regulatory language is

mandatory, stating that Commerce will perform certain functions

as part of the revocation review,” Id. at 3., and in particular

that “[19 C.F.R.] § 351.222 states that Commerce ‘will’ initiate

16

The relevant actions include: (1) publishing notice of a

“Request for Revocation of Order (in part)”; (2) conducting a

verification of the requesting party; (3) including a preliminary

decision on revocation in the preliminary results of review; (4)

publishing an “Intent to Revoke Order (in part)” with the

preliminary results if warranted; (5) including a final decision

on revocation with the publication of the final results of

review; and (6) publishing a “Revocation of Order (in part)” with

the notice of final results if warranted. 19 C.F.R.

§ 351.222(f)(2).

Consol. Court No. 09-00431 Page 19

a partial revocation review, if requested,” Id. at 15–16.17

Commerce argues in response that Fish One’s distinction

between administrative and revocation reviews is, again,

illusory. Def.’s Resp. Br. 10–11. According to Commerce, “[a]

review under the regulation means an administrative review under

19 U.S.C. § 1675(a),” id. at 10; therefore, the regulatory

provisions under 19 C.F.R. § 351.222 are only applicable when a

respondent is selected for review under 19 U.S.C. § 1677f-

1(c)(2). As Commerce stated in the Preliminary Results,

“[n]othing in the regulation requires the Department to conduct

an individual examination and verification when the Department

has limited its review, under [19 U.S.C. § 1677f-1(c)(2)].”

Preliminary Results, 74 Fed. Reg. at 10,012; see also I & D Mem.

Cmt. 16 at 61.18

17

See 19 C.F.R. § 351.222(f)(1) (“Upon receipt of a timely

request for revocation or termination under paragraph (e) of this

section, [Commerce] will consider the request as including a

request for an administrative review and will initiate and

conduct a review under § 351.213.”).

18

In making its case before Commerce Fish One also relied

on 19 C.F.R. § 351.222(b)(2), which provides that

[i]n determining whether to revoke an antidumping duty

order, in part, . . . [Commerce] will consider: (A)

Whether one or more exporters or producers covered by

the order have sold the merchandise at not less than

normal value for a period of at least three consecutive

years; (B) Whether, for any exporter or producer that

the Secretary previously has determined to have sold

the subject merchandise at less than normal value, the

exporter or producer agrees in writing to its immediate

Consol. Court No. 09-00431 Page 20

An agency is, of course, bound by its regulations. See

United States v. Nixon, 418 U.S. 683, 696 (1974) (“So long as

this regulation remains in force the Executive Branch is bound by

it . . . .”); Vitarelli v. Seaton, 359 U.S. 535, 539–40 (1959);

Service v. Dulles, 354 U.S. 363, 388 (1957). However, the court

defers to the agency’s error-free interpretation of its own

regulations. Carpenter Tech. Corp. v. United States, 31 CIT 181,

184, 474 F. Supp. 2d 1347, 1350 (2007) (citing Torrington Co. v.

United States, 156 F.3d 1361, 1363–64 (Fed. Cir. 1998)). “[The

court’s] task is not to decide which among several competing

interpretations best serves the regulatory purpose. Rather, the

agency’s interpretation must be given ‘controlling weight unless

it is plainly erroneous or inconsistent with the regulation.’”

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)

(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

reinstatement in the order, as long as any exporter or

producer is subject to the order, if the Secretary

concludes that the exporter or producer, subsequent to

the revocation, sold the subject merchandise at less

than normal value; and (C) Whether the continued

application of the antidumping duty order is otherwise

necessary to offset dumping.

19 C.F.R. § 351.222(b)(2)(i). To Fish One this language must be

read to require a revocation review. Commerce, however,

reasonably construes this “will consider” language to apply after

the administrative review has been completed, noting that because

Fish One was not a mandatory respondent, the record did not

support the conclusion that the conditions of § 351.222(b)(2)(i)

were met.

Consol. Court No. 09-00431 Page 21

(1945)). Furthermore, the court will “uphold a decision of less

than ideal clarity if the agency’s path may reasonably be

discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,

Inc., 419 U.S. 281, 286 (1974).

Because Commerce’s interpretation is neither plainly

erroneous nor inconsistent with the regulation, the court defers

to that interpretation. See Thomas Jefferson Univ., 512 U.S. at

512. According to 19 C.F.R. § 351.222(f)(2) certain actions must

be taken by Commerce; however, it is a reasonable interpretation

to conclude that these provisions do not require an individual

review so much as they define the procedures of a review when it

has been initiated.19 While § 351.222(f)(1) states that

“[Commerce] will initiate and conduct a review,” it has already

been established above, see supra Section I.B, that a review

under 19 U.S.C. § 1675(a) is not synonymous with a revocation.

The Department’s understanding that its regulations under 19

19

The Court recognizes that § 351.222(f)(2)(i) does

establish a mandatory action by Commerce — publishing the

“Request for Revocation of Order (in part)” along with the notice

of initiation — whenever a request for revocation is filed. 19

C.F.R. § 351.222(f)(2)(i). Commerce acknowledged this obligation

when it noted in the Preliminary Results that it had

inadvertently failed to take this action. Preliminary Results,

74 Fed. Reg. at 10,011. However, because Commerce acknowledged

the revocation request and the revocation was denied on other

grounds, this mistake amounts to harmless error. See Intercargo

Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996)

(holding the Customs Service’s failure to include requisite

language in an extension notice harmless error where plaintiff

suffered no prejudice).

Consol. Court No. 09-00431 Page 22

C.F.R. § 351.222(f) initiate an administrative review under 19

U.S.C. § 1675(a), and therefore are subject to the exception to

individual review found at 19 U.S.C. § 1677f-1(c)(2), is entirely

consistent with its statutory interpretation, held reasonable

above. Thus, it is reasonable for the Department to conclude

that 19 C.F.R. § 351.222 only requires Commerce to initiate an

administrative review under 19 U.S.C. § 1675(a) and requires

further action only when a respondent is chosen for individual

review consistent with 19 U.S.C. § 1677f-1(c)(2).

D. Commerce’s decision not to individually review Fish One

is consistent with its prior policy

Fish One next contends that Commerce should have applied a

policy that Fish One claims was created in Certain Fresh Cut

Flowers from Colombia (“Flowers”).20 Fish One argues that

Flowers is an established precedent to which Commerce must hew.

Pl.’s Br. 17. Commerce responds that it does not consider

Flowers to be binding precedent because the “procedure was never

implemented in practice and was limited to the Flowers

proceeding.” I & D Mem. Cmt. 16 at 62. Commerce further argues

that even if Flowers is considered agency precedent, it has

offered a reasonable explanation for its departure from this

20

Certain Fresh Cut Flowers from Colombia, 62 Fed. Reg.

53,287, 53,290–91 (Dep’t Commerce Oct. 14, 1997) (final results

and partial rescission of antidumping duty administrative review)

(“Flowers Final Results”).

Consol. Court No. 09-00431 Page 23

policy. Def.’s Resp. Br. 12–13.

An agency is not prohibited from changing its policies or

adopting a position contrary to prior practice. See Smiley v.

Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) (“[T]he

mere fact that an agency interpretation contradicts a prior

agency position is not fatal.”). When an agency changes its

position suddenly and without explanation or “does not take

account of legitimate reliance on prior interpretation,” the

agency’s action may be “arbitrary, capricious [or] an abuse of

discretion.” Id. (internal citations omitted). “[I]f these

pitfalls are avoided, change is not invalidating . . . .”21 Id.

Furthermore, the binding power of an agency policy is increased

by the agency’s own adherence, over time to such policy. As the

Supreme Court has noted,

[t]hough the agency’s discretion is unfettered at the

outset, if it announces and follows — by rule or

21

Furthermore, the court does not substitute its judgment

for that of the agency. Rather, it requires of the agency only

that it support its decision with some sound reasoning.

[T]he agency must show that there are good reasons for

the new policy. But it need not demonstrate to a

court’s satisfaction that the reasons for the new

policy are better than the reasons for the old one; it

suffices that the new policy is permissible under the

statute, that there are good reasons for it, and that

the agency believes it to be better, which the

conscious change of course adequately indicates.

FCC v. Fox Television Stations, Inc., 556 U.S. 502, , 129

S. Ct. 1800, 1811 (2009).

Consol. Court No. 09-00431 Page 24

settled course of adjudication — a general policy by

which its exercise of discretion will be governed, an

irrational departure from that policy (as opposed to an

avowed alteration of it) could constitute action that

must be overturned as “arbitrary, capricious, [or] an

abuse of discretion.”

INS v. Yang, 519 U.S. 26, 32 (1996)(internal citations omitted).

The policy at issue here was developed in the ninth

administrative review of certain fresh cut flowers from Colombia.

In that review, Commerce, for the first time, reviewed only the

largest subject exporters pursuant to 19 U.S.C. § 1677f-1(c)(2).

Certain Fresh Cut Flowers from Colombia, 62 Fed. Reg. 16,772,

16,773 (Dep’t Commerce Apr. 8, 1997) (preliminary results and

partial rescission of antidumping duty administrative review)

(“Flowers Prelim. Results”). In light of Commerce’s decision to

limit the number of respondents, several non-selected respondents

requested an alternative process by which they could preserve

their revocation eligibility. Id. at 16,774. In response, the

Department, put forth three proposals “to allow for the

possibility of future partial revocations in this order, while

taking into account the Department’s limited resources and the

requirement that a company be verified in order to be revoked.”

Id. After taking comments, Commerce adopted a policy whereby a

non-selected respondent that met certain criteria22 would be

22

The necessary criteria were:

(1) a review was requested for the company in each of

Consol. Court No. 09-00431 Page 25

individually reviewed under 19 U.S.C. § 1675(a) and also have

data for the two prior years reviewed for the purposes of

revocation. Flowers Final Results, 62 Fed. Reg at 53,291. A non-

selected respondent that met the criteria, requested revocation,

and was determined by Commerce not to have sold merchandise at

less than normal value in each of the three years examined, would

receive a revocation of the antidumping duty order. Id.

Nonetheless, the court cannot construe the Flowers policy to

be a continuing limitation upon Commerce’s discretion, Yang, 519

U.S. at 32, which would constrain the agency’s future decision

making. Rather, the agency’s case-by-case decision-making places

insufficient reliance upon Flowers to give it the sort of

precedential weight that would bind Commerce. All that stands in

favor of such a finding is the announcement of the procedure

the two years immediately preceding the period of

review in which revocation is requested, but the

company was not selected for examination in either of

those two preceding reviews; and (2) with the request

for revocation the company (a) certifies that it sold

subject merchandise at not less than normal value

during the period described in 19 C.F.R.

§ 351.213(e)(1) and for two consecutive years

immediately preceding that period; (b) provides the

certifications required under 19 C.F.R.

§ 351.222(e)(ii) and (iii); and (c) submits a statement

acknowledging that its entries are subject to

assessment of AD duties at the non-selected respondent

rate in one or both of the two preceding review

periods.

Flowers Final Results, 62 Fed. Reg at 53,291.

Consol. Court No. 09-00431 Page 26

through publication in the Federal Register. However, even in

the case for which it was created, the procedure was never

implemented23; nor has Commerce subsequently implemented the

procedure in any case outside of Flowers. Not only has Commerce

not consistently relied upon Flowers, see Yang, 519 U.S. at 32,

it has never relied upon Flowers, cf. Smiley, 517 U.S. at 742–43.

Commerce has also bypassed the opportunity to implement the

procedure outlined in Flowers. In Certain Lined Paper from the

People’s Republic of China (“Lined Paper”),24 Commerce selected

only one mandatory respondent, Shanghai Lian Li Paper Products

Co., Ltd. (“Lian Li”). Lined Paper I & D Mem. Cmt. 7 at 43. Non-

23

Because all requests for review had been withdrawn during

the eighth review of the Flowers order, no respondent could be

eligible for revocation until the eleventh review, at which point

it would be possible to show three consecutive years of not less

than normal value sales. Flowers Prelim. Results, 62 Fed. Reg. at

16,774. Thus, the procedure laid out in Flowers Final Results,

would first be available “in the review of the period March 1,

1997 to February 28, 1998 (the eleventh review period).” Flowers

Final Results, 62 Fed. Reg. at 53,291. However, the eleventh and

subsequent reviews were terminated when the Department revoked

the order in whole on July 20, 1999. Certain Fresh Cut Flowers

from Colombia, 64 Fed. Reg. 38,887, 38,888 (Dep’t Commerce July

20, 1999) (final results of changed circumstances antidumping

duty administrative review; revocation of order) (“As the result

of the revocation, the Department is terminating the

administrative review[] covering the following period[]: March 1,

1997, through February 28, 1998 . . . .”).

24

Certain Lined Paper Products from the People’s Republic

of China, 74 Fed. Reg. 17,160 (Dep’t Commerce Apr. 14, 2009)

(notice of final results of the antidumping duty administrative

review) (“Lined Paper Final Results”), and accompanying Issues

and Decision Memorandum, A-570-901, ARP 06–07 (Apr. 6, 2009)

(“Lined Paper I & D Mem.”).

Consol. Court No. 09-00431 Page 27

selected respondents Watanabe Paper Products (Shanghai) Co.,

Ltd.; Watanabe Paper Products (Linging) Co., Ltd.; and Hotrock

Stationary (Sennzhen) Co., Ltd. (collectively “Watanabe”)

challenged the selection, arguing, inter alia, that by choosing

only one respondent Commerce was denying Watanabe the opportunity

to seek revocation in the future. Id. Though the facts of Lined

Paper are very similar to Flowers, Commerce chose not to invoke

the Flowers procedure in Lined Paper. Instead, Commerce found

that with, regard to revocation, “the Department has the

discretion, pursuant to [19 U.S.C. § 1677f-1(c)(2)], to limit the

number of entities that it reviews if it is not practicable to

examine each individual exporter or producer.” Id. at 47.

Rather, in Lined Paper, Commerce “extended the opportunity

for non-mandatory respondents to seek voluntary status . . . .”

Id. at 43. Voluntary respondent status will be discussed further

below, but for now the court notes that such an opportunity

exists for a non-selected respondent to seek individual review.

See 19 U.S.C. § 1677m(a). Though Commerce developed an

alternative policy in Flowers for maintaining the revocation

eligibility of non-selected respondents, the court finds it

reasonable for Commerce to now require non-selected respondents

to instead go through the voluntary respondent process.

Accordingly, because Commerce has failed to implement or

rely upon Flowers and has, in practice, changed its policy to

Consol. Court No. 09-00431 Page 28

rely instead on the voluntary review process in order to achieve

the objectives stated in Flowers, the court finds that the

procedure announced in Flowers is not binding upon Commerce in

this or subsequent reviews.

II. Fish One cannot challenge the mandatory selection process

because it failed to exhaust its administrative remedies

Fish One next argues that the Department used an improper

methodology for choosing its mandatory respondents when it took

into consideration its workload in other antidumping duty

proceedings. Pl.’s Br. 18–19. Fish One further argues that it

was unreasonable for the Department to limit its review to three

mandatory respondents, when it could have included Fish One as a

fourth. Id. Fish One relies on this Court’s recent opinion in

Zhejiang Native Produce & Animal By-Products Import & Export

Corp. v. United States, CIT , 637 F. Supp. 2d 1260 (2009) to

support both of these contentions. Pl.’s Br. 18–19.

The court will not reach the merits of these claims because

Fish One failed to exhaust its administrative remedies on this

issue. Having failed to object to the mandatory respondent

selection process at the administrative level, Fish One cannot

raise the issue here. Furthermore, Fish One could have sought

individual review through the voluntary respondent process, and,

failing to do so, it is not in a position to challenge the

mandatory respondent selection.

Consol. Court No. 09-00431 Page 29

It is a general rule of administrative law that a plaintiff

must exhaust available administrative remedies before seeking

relief in the courts. United States v. L.A. Tucker Truck Lines,

Inc., 344 U.S. 33, 37 (1952) (“Simple fairness to those who are

engaged in the tasks of administration, and to litigants,

requires as a general rule that courts should not topple over

administrative decisions unless the administrative body not only

has erred but has erred against objection made at the time

appropriate under its practice.”); McKart v. United States, 395

U.S. 185, 193 (1969) (“[N]o one is entitled to judicial relief

for a supposed or threatened injury until the prescribed

administrative remedy has been exhausted.” (quoting Myers v.

Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 (1938)).

Similarly, this Court is required by statute to, “where

appropriate, require the exhaustion of administrative remedies.”

28 U.S.C. § 2637(d); see also Consol. Bearings Co. v. United

States, 348 F.3d 997, 1003 (Fed. Cir. 2003) (“In the Court of

International Trade, a plaintiff must also show that it exhausted

its administrative remedies . . . .”).

Fish One never raised its current objections to the

mandatory selection process with Commerce. Following the

selection of mandatory respondents, Fish One sent two letters to

Commerce requesting that Commerce abide by Fish One’s

interpretation of the statutes and regulations by conducting an

Consol. Court No. 09-00431 Page 30

individual review of Fish One for the purpose of revocation. See

Letter from DeKieffer & Horgan to Secretary, U.S. Department of

Commerce (Oct. 8, 2008), Admin. R. Pub. Doc. 123 (“First Review

Request Letter from Fish One to Commerce”); Letter from DeKieffer

& Horgan to Secretary, U.S. Department of Commerce (Jan. 2,

2009), Admin. R. Pub. Doc. 184 (“Second Review Request Letter

from Fish One to Commerce”). However, in neither of these

letters did Fish One raise its concern with how the mandatory

selection process was conducted.25 Nor did Fish One raise these

concerns in its case brief to the agency. See Case Br., Apr. 13,

2009, Admin. R. Pub. Doc. 270. Because Fish One did not raise

these concerns during the administrative process, Commerce had no

opportunity to consider them in making its determinations. The

court will not decide a question the agency had no opportunity to

consider. See Unemployment Compensation Comm’n of Alaska v.

Aragon, 329 U.S. 143, 155 (1946) (“A reviewing court usurps the

agency’s function when it sets aside the administrative

determination upon a ground not theretofore presented and

25

In the first letter, Fish One did argue that respondents

were being treated “unevenly in their quest for revocation” and

requested that it be made a mandatory respondent, but its

argument was premised on what it perceived to be different

treatment of respondents requesting revocation; it did not raise

the arguments it now makes about the number of mandatory

respondents selected and the factors Commerce took into

consideration. First Review Request Letter from Fish One to

Commerce 6–7.

Consol. Court No. 09-00431 Page 31

deprives the [agency] of an opportunity to consider the matter,

make its ruling, and state the reasons for its action.”).

This result is especially appropriate here because Fish One

also failed to exhaust its available remedies by not seeking a

voluntary individual review. Where, as here, the number of

respondents in an administrative review has been limited under 19

U.S.C. § 1677f-1(c)(2), Congress has provided an alternative

process for a respondent to seek an individual review. This

process is provided for at 19 U.S.C. § 1677m(a), which reads in

relevant part:

In . . . a review under section 1675(a) of this title

in which [Commerce] has under section 1677f-1(c)(2) of

this title . . . limited the number of exporters or

producers examined . . . [Commerce] shall

establish . . . an individual weighted average dumping

margin for any exporter or producer not initially

selected for individual examination under such sections

who submits to [Commerce] the information requested

from exporters or producers selected for examination

. . . .”

19 U.S.C. § 1677m(a).26

Commerce has provided further guidance for requesting

voluntary respondent status in its regulations under 19 C.F.R.

§ 351.204. The relevant sections read:

26

The statute does permit Commerce to decline to review

voluntary respondents when the number of voluntary respondents is

so large as to “be unduly burdensome and inhibit the timely

completion of the investigation.” 19 U.S.C. § 1677m(a)(2).

However, because Fish One never applied for voluntary respondent

status in the third administrative review, the exception is not

relevant in this case.

Consol. Court No. 09-00431 Page 32

If [Commerce] limits the number of exporters or

producers to be individually examined under [19 U.S.C.

§ 1677f-1(c)(2)(B)] . . . [Commerce] will examine

voluntary respondents (exporters or producers, other

than those initially selected for individual

examination) in accordance with [19 U.S.C.

§ 1677m(a)]. . . . An interested party seeking

treatment as a voluntary respondent must so indicate by

including as a title on the first page of the first

submission, “Request for Voluntary Respondent

Treatment.”

19 C.F.R. § 351.204(d)(1) & (4).27

At no point during the administrative review underlying this

case did Fish One make a request to Commerce for individual

review as a voluntary respondent. Rather, in its first

submission to Commerce following the selection of mandatory

respondents, Fish One requested an individual review under its

interpretation of the statutes and regulations relating to

revocation.28 See First Review Request Letter from Fish One to

Commerce.

Lack of follow-through in the voluntary respondent process

constitutes a failure to exhaust administrative remedies. See

Schaeffler Italia S.R.L. v. United States, CIT , 781

27

In order to be eligible for voluntary respondent status,

the exporter or producer must also submit the relevant

information on the same schedule as the mandatory respondents. 19

U.S.C. § 1677m(a)(1)(A).

28

Nor did Fish One seek voluntary respondent status in

subsequent submissions. Furthermore, Fish One did not submit the

documentation required of the mandatory respondents, which is a

statutory requirement for receiving voluntary respondent status

under 19 U.S.C. § 1677m(a).

Consol. Court No. 09-00431 Page 33

F. Supp. 2d 1358, 1363 (2011) (“[P]laintiffs do not qualify for a

remand order in this form, having withdrawn their request for

voluntary respondent status during the review and thereby failing

to exhaust their administrative remedies on the individual

examination issue.”); Asahi Seiko Co. v. United States, CIT

, 755 F. Supp. 2d 1316, 1327 (2011) (“Asahi II”) (“Ashai

withdrew from the review rather than taking steps available to it

for seeking its own rate, which involve seeking voluntary

respondent status under [19 U.S.C. § 1677m(a)]. The court

concludes, therefore, that Asahi failed to exhaust its

administrative remedies . . . .”); RHI Refractories Liaoning Co.

v. United States, CIT , 752 F. Supp. 2d 1377, 1380 (2011)

(holding that respondent lacked standing to intervene in

challenge to administrative review of antidumping duty order for

failure to exhaust administrative review after withdrawing its

request for voluntary respondent status); see also Asahi Seiko

Co. v. United States, CIT , 751 F. Supp. 2d 1335, 1341–42

(2010) (“Asahi I”).

These recent cases hold that withdrawing from an

administrative review rather than seeking voluntary respondent

status constitutes a failure to exhaust administrative remedies,

which bars a plaintiff’s challenge to the respondent selection

process. It is equally the case that a plaintiff, such as Fish

One, that goes forward with a review but does not request

Consol. Court No. 09-00431 Page 34

voluntary respondent status, has also failed to exhaust its

administrative remedies.29 In both cases, plaintiffs have failed

to take advantage of a “prescribed administrative remedy.”

McKart, 395 U.S. at 193; see also L.A. Tucker Truck Lines, 344

U.S. at 37 (“[C]ourts should not topple over administrative

decisions unless the administrative body not only has erred but

has erred against objection made at the time appropriate under

its practice.” (emphasis added)).

Fish One’s argument that its failure to exhaust the

administrative remedies was excused due to futility is

unavailing. Fish One appears to argue that because it expected

to receive a revocation review upon request — according to its

interpretation of the statutes and regulations — it did not

timely submit the necessary information to be considered as a

mandatory respondent; therefore, it was futile for Fish One to

object to the mandatory respondent selection process because it

was time barred from becoming a mandatory respondent. Pl.’s Reply

to Def.’s & Def.-Intervenor’s Resp. Br. 8–9, ECF No. 71 (“Pl.’s

29

Even where this Court has found the mandatory respondent

selection process flawed, it has denied relief to plaintiffs that

failed to exhaust their administrative remedies by not seeking

voluntary respondent status. See Asahi I, CIT at , 751 F.

Supp. 2d at 1340–42; Asahi II, CIT at , 755 F. Supp. 2d at

1325–27. In this case, however, the court declines to rule on

whether the Department’s mandatory selection process was flawed.

The court finds no need to reach this issue as Plaintiff has not

shown that it exhausted its administrative remedies. See 28

U.S.C. § 2637(d) (2006); Consol. Bearings, 348 F.3d at 1003.

Consol. Court No. 09-00431 Page 35

Reply Br.”). However, because it was Fish One’s own

interpretation of the law that rendered its objections untimely,

it has no recourse to a futility exception, as it was not

Commerce’s decision, obstinance, or intractability, but rather

Fish One’s own conduct, that made the effort futile.

Furthermore, there is no indication that Commerce would have

refused to acknowledge Fish One’s objections had they been timely

lodged or lodged at all. Though Fish One argues that “Commerce

would not have contravened its regulations and selected Fish One

as a mandatory respondent,” Id. at 9, Fish One offers no

indication that this was, in fact, Commerce’s position. The bar

for a futility exception is high, requiring more than

unlikeliness. See Corus Staal BV v. United States, 502 F.3d 1370,

1379 (Fed. Cir. 2007) (“The mere fact that an adverse decision

may have been likely does not excuse a party from a statutory or

regulatory requirement that it exhaust administrative

remedies.”); Schaeffler Italia, CIT at , 781 F. Supp. 2d at

1364–65 (“Plainly, the voluntary respondent request was unlikely

to have been approved had Schaeffler not withdrawn it, but

Commerce did not close the door entirely on the prospect that

Schaeffler Italia might be examined.”). Resting solely on its

conclusory allegation that Commerce would not have acted upon its

objections, Fish One has not shown that lodging the objection

Consol. Court No. 09-00431 Page 36

would have been futile.30

Fish One failed to exhaust its administrative remedies by

not raising objections to the mandatory respondent selection at

the administrative level and by not seeking voluntary respondent

status. As such, the court will not reach the question of

whether Fish One should have been individually reviewed as a

mandatory respondent or the question of whether the mandatory

respondent selection process was reasonable.

III. The zero percent dumping margin assigned to Fish One in the

third administrative review does not guarantee revocation

Finally, Fish One argues that because it received a zero

percent dumping margin in the third administrative review and has

complied with all relevant statutory and regulatory obligations,

“a strict interpretation of the statute and regulations warrants

a finding that Commerce simply take the information placed by

Fish One on the record, verify it, and issue its decision

regarding revocation.” Pl.’s Br. 20. Insofar as this argument

30

Zhejiang is not to the contrary. In Zhejiang, the Court

held that the plaintiffs could challenge the mandatory selection

process despite not having completed the voluntary respondent

process. Zhejiang, CIT at , 637 F. Supp. 2d at 1265. On the

facts of that case, the Court found that it would have been

futile for the plaintiffs to continue seeking voluntary

respondent status because “Commerce had informed Zhejiang’s

counsel that Commerce would not accept Zhejiang as either a

mandatory or voluntary respondent.” Id. At no point in the

administrative review at issue here did Commerce indicate that it

would not accept voluntary respondents, or more to the point,

that it would not accept Fish One as a voluntary respondent. See

Corus Staal, 502 F.3d at 1379.

Consol. Court No. 09-00431 Page 37

reiterates Fish One’s prior assertion that either the statute or

regulations should be read to require Commerce to review and

revoke the order as it pertains to Fish One, these arguments have

been discussed above. Fish One’s further argument that, having

received a de minimis rate for three consecutive years, it is now

entitled to revocation is contrary to the plain language of both

the statute and regulations. As has been discussed, both the

statute and regulations clearly make the grant of revocation

discretionary.

The argument advanced by Fish One is very similar to one

dismissed by this Court in Hyundai. In that case, the plaintiff

“maintain[ed] that except in extraordinary cases, Commerce should

automatically revoke an AD order when respondent can show three

years of no dumping and has furnished the required no-dumping

agreements.” Hyundai, 23 CIT at 307–08, 53 F. Supp. 2d

at 1339–40. The Court found that such an argument lacked merit

because both the statute and regulations made revocation a

discretionary decision by Commerce. Id. at 308, 1340. Though the

regulatory language has changed since Hyundai, see supra note 13,

the court finds that the reasoning behind Hyundai continues to be

valid. As discussed above, Commerce has reasonably interpreted

the statutes and regulations related to revocation. Together the

statutes and regulations create a process for determining whether

Commerce should exercise its statutory discretion to revoke an

Consol. Court No. 09-00431 Page 38

order. According to Commerce’s reasonable interpretation, this

process requires an individual review of a respondent, which did

not occur in this case. There is nothing in the statutory or

regulatory language that compels Commerce to make a revocation

determination other than through this process. As in Hyundai,

Commerce has the discretion to revoke orders, and so long as it

acts reasonably in construing and enforcing the statutory and

regulatory provisions, the Court will not upset its decision.

Thus, Fish One’s assertion that three consecutive years of de

minimis dumping margins and compliance with statutory and

regulatory requirements should guarantee revocation is without

merit.

CONCLUSION

Consistent with the court’s Order dated Aug. 9, 2011, the

issue concerning calculation of separate rates for cooperative

non-individually investigated respondents is voluntarily REMANDED

for reconsideration in light of the Court’s decision in Amanda

Foods (Vietnam) Ltd. v. United States, CIT , 774 F. Supp. 2d

1286 (2011).

For all the foregoing reasons, the remainder of the

Department’s Final Results, 74 Fed. Reg. 47,191, are AFFIRMED.

Commerce shall have until February 13, 2012, to complete and

file its remand redetermination. Plaintiff shall have until

February 27, 2012, to file comments. Defendant and

Consol. Court No. 09-00431 Page 39

Defendant-Intervenors shall have until March 12, 2012, to file

any reply.

It is SO ORDERED.

/s/ Donald C. Pogue

Donald C. Pogue, Chief Judge

Dated: December 14, 2011

New York, New York