Amanda Foods (Vietnam) Ltd. v. United States

33 ITRD 2361

807 F.Supp.2d 1332

AMANDA FOODS (VIETNAM) LTD., et al., Plaintiffs,

v.UNITED STATES, Defendant,andAd Hoc Shrimp Trade Action Committee and The Domestic Processors, Defendant–Intervenors.

Slip Op. 11–155.Court No. 09–00431.

United States Court of International Trade.

Dec. 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 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.

OPINION AND ORDER

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

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. § 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. 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 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 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 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.

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 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). ¹²

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...