from the United States Court of International Trade in No.
1:14-cv-00092-DCP, Judge Donald C. Pogue.
Matthew R. Nicely, Hughes Hubbard & Reed LLP, Washington,
DC, argued for plaintiff-appellant. Also represented by
DANIEL MARTIN WITKOWSKI.
Westercamp, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellee United States. Also represented by
BENJAMIN C. MlZER, JEANNE E. Davidson, Patricia M. McCarthy,
Joshua E. KURLAND; Mykhaylo Gryzlov, Office of Chief Counsel
for Trade Enforcement and Compliance, United States
Department of Commerce, Washington, DC.
MEIXUAN Li, Picard Kentz & Rowe LLP, Washington, DC,
argued for defendant-appellee Ad Hoc Shrimp Trade Action
Committee. Also represented by NATHANIEL RicKARD, Andrew
William Kentz, Roop Bhatti.
Prost, Chief Judge, Chen and Stoll, Circuit Judges.
I-Mei Frozen Foods Co., Ltd., successor in interest to
Grobest & I-Mei Industrial (Vietnam) Co., Ltd.
(collectively Grobest), appeals the decision of the Court of
International Trade (CIT) affirming the U.S. Department of
Commerce's final ` review of the antidumping duty order
on certain frozen warmwater shrimp from Vietnam. See
Certain Frozen Warmwater Shrimp from the Socialist Republic
of Vietnam, 79 Fed. Reg. 15, 309 (Dep't of Commerce
Mar. 19, 2014) (final results of reconducted administrative
review of Grobest and intent not to revoke) (Reconducted
Final Results). Grobest argues that the CIT erred in
sustaining Commerce's decision to refuse Grobest's
request to terminate the individual examination of Grobest
and also erred in sustaining Commerce's decision to
assign a 25.76% antidumping duty rate using adverse facts
available after Grobest failed to cooperate with the
examination. See Viet I-Mei Frozen Foods Co. v. United
States, 83 F.Supp.3d 1345 (Ct. Int'l Trade 2015).
For the reasons below, we affirm.
antidumping statute provides for the assessment of remedial
duties on foreign merchandise sold in the United States at
less than fair market value that materially injures or
threatens to injure a domestic industry. See 19
U.S.C. § 1673. An antidumping duty reflects the amount
by which the normal value exceeds the export price of the
merchandise. Id. §§ 1673e(a)(1), 1677(35).
Under the statute, Commerce is generally charged with
determining individual dumping margins for each known
exporter and producer of the subject merchandise and
assigning each an individual duty rate. Id. §
1677f-1(c)(1). Each year, Commerce provides interested
parties with an opportunity to request an administrative
review of exporters and producers covered by the order to
reevaluate the propriety of the assigned duty rate.
Id. § 1675(a)(1)(B). In particular, an
interested member of the affected domestic industry may
request an administrative review of the duty order if it
believes a currently assigned rate is too low. 19 C.F.R.
§ 351.213(b)(1). Conversely, an exporter or producer may
request administrative review of the order if it believes its
currently assigned rate is too high. Id. §
351.213(b)(2). Absent such a request for review, the duty
continues to be assessed at the preexisting rate.
Id. § 351.212(c)(1)(i).
cases where a large number of exporters and producers are
involved in an administrative review proceeding and it is not
practical to determine individual rates for each, the
antidumping duty statute allows Commerce to limit individual
examination to a reasonable number of companies. 19 U.S.C.
§ 1677f-l(c)(2). In such cases, Commerce generally
selects a subset of companies for mandatory review and
determines an individual dumping rate for each of those
mandatory respondents. A company that is not selected for
individual examination as a man- datory respondent will
generally receive what is known as the "all-others"
rate. See id. § 1673d(c)(1)(B)(i)(II).
addition, a company not selected for individual examination
may voluntarily submit questionnaire responses containing all
of the information requested from mandatory respondents and
request individual examination under 19 U.S.C. §
1677m(a)(1). However, Commerce may decline to fully
investigate the respondents seeking voluntary examination if
it determines that the number of exporters or producers who
have submitted such requests is so large that individual
examination of these voluntary respondents "would be
unduly burdensome and inhibit the timely completion of the
investigation." Id. § 1677m(a)(2). Thus,
in the typical proceeding, an exporter or producer may
receive an individual duty rate as either a mandatory or
voluntary respondent or the "all-others" rate if
not individually examined.
involving a nonmarket economy (NME) country operate slightly
differently than the typical proceeding covering goods
exported from a country with a market-based economy. Because
an NME does not operate on market principles of cost or
pricing structures, the normal value may not reflect the fair
value of the merchandise. See id. §
1677(18)(A). In NME proceedings, Commerce begins with the
presumption that all respondents in the investigation are
under foreign government control and should receive a single
countrywide dumping rate. Albemarle Corp. &
Subsidiaries v. United States, 821 F.3d 1345, 1348 (Fed.
Cir. 2016). This presumption is rebuttable and a company
importing goods covered by the order can prove, through
responses to a separate rate questionnaire, that it is not
subject to government control and is entitled to a separate,
individualized rate. See, e.g., Transcom, Inc. v. United
States, 294 F.3d 1371, 1373 (Fed. Cir. 2002). Thus, in
NME proceedings, a company that demonstrates its entitlement
to separate rate status receives either an individual rate
(as a mandatory or voluntary respondent) or the
weighted-average separate rate (if individual examination is
impractical or unduly burdensome). And a company that fails
to demonstrate independence from the NME country receives the
higher countrywide rate.
February 1, 2005, Commerce made a final determination that
certain frozen warmwater shrimp from Vietnam were likely
being sold at less than fair market value and published a
duty order directing customs officers to assess antidumping
duties on imports of the subject merchandise. Certain
Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam, 70 Fed. Reg. 5, 152 (Dep't of Commerce Feb.
1, 2005) (notice of amended final determination of sales at
less than fair value and antidumping duty order). Vietnam is
designated as a NME country and Commerce begins with a
rebuttable presumption that a company operating within
Vietnam is subject to state control. See Certain Frozen
and Canned Warmwater Shrimp from the Socialist Republic of
Vietnam, 69 Fed. Reg. 71, 005 (Dep't of Commerce
Dec. 8, 2004). Commerce presumptively applies a single
countrywide antidumping rate of 25.76%-the Vietnam-wide
rate-to all imports of frozen warmwater shrimp from Vietnam.
is a producer of frozen warmwater shrimp from Vietnam covered
by the antidumping duty order. Although not individually
examined as a mandatory or voluntary respondent during the
first three administrative review periods (AR1-AR3), Grobest
demonstrated its entitlement to separate rate status and was
assigned-for reasons not relevant here-a separate antidumping
duty rate of 0% in each review period. In February of
2009, Grobest and the domestic industry of warmwater shrimp
producers-the Ad Hoc Shrimp Trade Action Committee (the
Domestic Producers)-each submitted separate requests for
review of Grobest in the fourth administrative review of the
duty order (AR4), covering the period of February 1, 2008,
through January 31, 2009.
March 2009, Commerce initiated the review of nearly 200
exporters and producers for AR4. Because of the large number
of companies involved in AR4, Commerce determined that
individual examination of each would be impractical. Instead,
as it had done in previous review periods, Commerce selected
for mandatory individual examination the two largest
companies by volume-Minh Phu Group and Nha Trang Seafoods.
Although not selected as a mandatory respondent, Grobest
requested to be individually examined for AR4 as a voluntary
respondent pursuant to 19 U.S.C. § 1677m(a), rather than
receive the all-others separate-rate. Commerce declined to
examine Grobest individually and on August 9, 2010, published
the Final Results for AE4. Minh Phu Group was assigned an
individual rate of 2.96%, Nha Trang Seafoods was assigned a
rate of 4.89% and Grobest, like all other non-selected
companies satisfying the requirements for ...