Yantai Oriental Juice Co. v. United States , 27 Ct. Int'l Trade 1709 ( 2003 )

SLIP OP . 03-150
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE : RICHARD K. EATON , JUDGE
____________________________________
:
YANTAI ORIENTAL JUICE CO ., ET AL., :
:
PLAINTIFFS , :
:
V. : COURT NO . 00-00309
:
UNITED STATES , :
:
DEFENDANT, :
:
AND :
:
COLOMA FROZEN FOODS, INC., ET AL., :
:
DEF.-INTERVENO RS. :
____________________________________:
[Commerce’s second remand determination sustained.]
Decided: November 20, 2003
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Bruce M. Mitchell, Jeffrey S.
Grimson and Mark E. Pardo), for Plaintiffs.
Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of
Justice; David M. Cohen, Director, Civil Division, Commercial Litigation Branch, United States
Department of Justice; Jeanne E. Davidson, Deputy Director (Ada E. Bosque); Scott D. McBride,
Office of the Chief Counsel for Import Administration, United States Department of Commerce,
of counsel, for Defendant.
The Law Firm of C. Michael Hathaway (C. Michael Hathaway), for Defendant-
Intervenors.
COURT NO . 00-00309 PAGE 2
MEMORANDUM OPINION
EATON, Judge: On March 21, 2003, the court, for the second time, remanded certain aspects of
the United States Department of Commerce’s (“Commerce” or the “Department”) determination
in Certain Non-Frozen Apple Juice Concentrate from the P.R.C., 65 Fed. Reg. 19,873 (Dep’t
Commerce Apr.13, 2000) (final determination) (“Final Determination”), as amended in Certain
Non-Frozen Apple Juice Concentrate From the P.R.C., 65 Fed. Reg. 35,606 (Dep’t Commerce
June 5, 2000) (am. final determination) (“Amended Final Determination”), covering the period of
investigation (“POI”) of October 1, 1998, through March 31, 1999. See Yantai Oriental Juice
Co. v. United States, 27 CIT__, slip op. 03-33 (Mar. 21, 2003) (“Yantai II”). The second remand
order directed Commerce to revisit the issue of the proper calculation of the antidumping duty
margin for Xianyang Fuan Juice Co., Ltd., Xian Asia Qin Fruit Co., Ltd., Changsha Industrial
Products & Minerals Import & Export Corp., and Shandong Foodstuffs Import & Export Corp.,1
and explain in clear and specific terms why its selected methodology “is based on the best
available information and establishes antidumping margins as accurately as possible.” Yantai II,
27 CIT at __, slip op. 03-33 at 18 (internal quotation omitted). On May 5, 2003, Commerce
released the results of its second remand determination. See Second Redetermination Pursuant to
Court Remand Order in Yantai Oriental Juice Co. v. United States (Mar. 21, 2003) (Dep’t
Commerce May 5, 2003), Second Remand R. Pub. Doc. 8 (“Second Remand Determination”).
1
These companies fully responded to Commerce’s antidumping questionnaire but
were not selected for investigation. They shall be referred to collectively as the “Cooperative
Respondents.” Yantai Oriental Juice Co., Qingdao Nannan Foods Co., Sanmenxia Lakeside
Fruit Juice Co., Ltd., Shaanxi Haisheng Fresh Fruit Juice Co., and Shandong Zhonglu Juice
Group Co. were fully investigated and shall be referred to collectively as the “Fully-Investigated
Respondents.” The Cooperative Respondents and the Fully-Investigated Respondents are
plaintiffs in this action (“Plaintiffs”).
COURT NO . 00-00309 PAGE 3
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. §
1516(a)(2)(A)(i)(I). For the reasons set forth below, the court sustains Commerce’s Second
Remand Determination.
BACKGROUND
In the original investigation, the antidumping duty margin for the Cooperative
Respondents was calculated to be 14.88%. See Am. Final Determination, 65 Fed. Reg. at
35,607. This antidumping duty margin was based on the weighted-average of antidumping duty
margins for the Fully-Investigated Respondents. See Final Determination, 65 Fed. Reg. at
19,874. After the first remand, however, Commerce determined that, because the Fully-
Investigated Respondents would receive antidumping duty margins of zero percent, a new
methodology was needed to calculate the antidumping duty margin for the Cooperative
Respondents. See Yantai II, 27 CIT__, slip op. 03-33 at 12 (citing Redetermination Pursuant to
Court Remand Order in Yantai Oriental Juice Co. v. United States (Dep’t Commerce Nov. 15,
2002), First Remand R. Pub. Doc. 53 (“First Remand Determination”) at 14). Specifically,
Commerce determined that it would calculate the Cooperative Respondents’ margin following
the “all-others” methodology of 19 U.S.C. § 1673d(c)(5). See id. However, because all of the
margins in the investigation were either (1) zero percent (i.e., the Fully-Investigated
Respondents’ margins) or (2) based on facts available (i.e., the PRC-wide margin), Commerce
did not follow the methodology of 19 U.S.C. § 1673d(c)(5)(A) but, instead, looked to 19 U.S.C.
§ 1673d(c)(5)(B). See id. at 13 (citing First Remand Determination at 14). Using this
methodology, the Cooperative Respondents’ calculated antidumping duty margin increased from
COURT NO . 00-00309 PAGE 4
14.88% to 28.33%. Id. at 16.
After reviewing the remand results, the court determined that it could not sustain
Commerce’s new methodology as proper. The court reasoned:
First, the record shows that the Cooperative Respondents fully and
completely complied with all of Commerce’s requests for
information. Indeed, the only apparent difference between the
Fully-Investigated Respondents and the Cooperative Respondents
is that Commerce did not select them for full investigations.
Second, while it is not inconceivable that individual margins for
each Cooperative Respondent could have increased had they been
fully investigated, this outcome seems unlikely given that all of the
Fully-Investigated Respondents’ antidumping duty margins were
reduced to zero percent—including that respondent originally
assigned an antidumping duty margin of 27.57 percent. Given
these facts it appears that Commerce strained to reach its result.
This is particularly puzzling given that in reaching its result
Commerce abandoned the methodology used in the Final
Determination (i.e., weight-averaging the estimated dumping
margins of the Fully-Investigated Respondents) even though that
method is specifically provided for in the statutory subsection it
purported to follow. More importantly, in doing so, Commerce
failed to justify the use of its new methodology other than by
reference to the SAA. The SAA, however, takes into account the
possibility that, under certain facts, the “expected” method should
not be used.
Yantai II, 27 CIT at __, slip op. 03-33 at 16–17 (citations omitted). As a result, the court
remanded this matter a second time. In doing so, the court directed Commerce to
revisit the issue of the proper calculation of the Cooperative
Respondents’ antidumping duty margin and . . . either: (1) use the
methodology set forth in 19 U.S.C. § 1673d(c)(5)(B); or (2) set out
another methodology. In either event, Commerce shall explain in
clear and specific terms why its selected methodology “is based on
the best available information and establishes antidumping margins
as accurately as possible.”
COURT NO . 00-00309 PAGE 5
Id., 27 CIT at __, slip op. 03-33 at 18 (citing Shakeproof Assembly Components, Div. of Ill. Tool
Works, Inc. v. United States, 268 F.3d 1376, 1382 (Fed. Cir. 2001)).
In its Second Remand Determination, Commerce calculated the antidumping duty margin
for the Cooperative Respondents to be 3.83%. See Second Remand Determination at 9.
STANDARD OF REVIEW
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); Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d
1369, 1374 (Fed. Cir. 2003) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i) (2000)). “Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Huaiyin, 322 F.3d at 1374 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The existence of substantial evidence is determined “by considering the record as a
whole, including evidence that supports as well as evidence that ‘fairly detracts from the
substantiality of the evidence.’” Id. (citing Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562
(Fed. Cir. 1984)). Commerce has considerable discretion in the evaluation of factors of
production. Nation Ford Chem. Co. v. United States, 21 CIT 1371, 1374–75, 985 F. Supp. 133,
136–37 (1997), aff’d 166 F.3d 1373 (Fed. Cir. 1999). “When examining Commerce’s factual
determinations, ‘[i]t is not within the Court’s domain either to weigh the adequate quality or
quantity of the evidence for sufficiency or to reject a finding on grounds of a differing
interpretation of the record.’” Air Prods. & Chems., Inc. v. United States, 22 CIT 433, 442, 14 F.
COURT NO . 00-00309 PAGE 6
Supp. 2d 737, 746 (1998) (quoting Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp.
300, 306 (1988), aff’d 894 F.2d 385 (Fed. Cir. 1990)). “In reviewing the Department’s
construction of a statute it administers, [the court defers] to the agency’s reasonable
interpretation of the antidumping statutes if not contrary to an unambiguous legislative intent as
expressed in the words of the statute.” Huaiyin, 322 F.3d at 1374–75 (citing Timex V.I., Inc. v.
United States, 157 F.3d 879, 881–82 (Fed. Cir. 1998)). Furthermore, “[a]s long as the agency’s
methodology and procedures are reasonable means of effectuating the statutory purpose, and
there is substantial evidence in the record supporting the agency’s conclusions, the court will not
impose its own views as to the sufficiency of the agency’s investigation or question the agency’s
methodology.” Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 404–05, 636 F.
Supp. 961, 966 (1986), aff’d 810 F.2d 1137 (Fed. Cir. 1987) (citing Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); Abbott v. Donovan, 6 CIT 92, 97,
570 F. Supp. 41, 46–47 (1983)).
DISCUSSION
In the Second Remand Determination, Commerce stated that
[t]he Department agrees with the Court that the [Cooperative
Respondents] were responsive and fully cooperated with the
Department in the investigation. The [Cooperative Respondents]
had originally requested to be fully examined during the
investigation. . . .
To comply with the Court’s order, the Department has revised its
methodology for calculating a separate rate for the [Cooperative
Respondents]. In this regard, we have considered the calculated
margins of zero percent for the [Fully-Investigated Respondents] as
well as the information on the record of the investigation for the
COURT NO . 00-00309 PAGE 7
[Cooperative Respondents]. For this remand redetermination, and
consistent with the [Statement of Administrative Action], the
Department has determined the antidumping duty margin for the
[Cooperative Respondents] by weight-averaging the zero margins
for the [Fully-Investigated Respondents] with the estimated
margins determined for the [Cooperative Respondents]. In
calculating the estimated margins for the [Cooperative
Respondents], we relied, in part, upon information provided by
these companies in their Section A questionnaire responses to the
Department in which they provided the gross volume and value of
their sales to the United States during the period of investigation.
We also relied upon corroborated information from the petition, as
adjusted to reflect the surrogate values incorporated by the
Department in its Remand Determination.
Second Remand Determination at 5.
Plaintiffs raise two objections to Commerce’s methodology and its choice of record
evidence used in calculating the Cooperative Respondents’ antidumping duty margin. First,
Plaintiffs argue that Commerce’s determination was not proper because Commerce’s calculations
were not “based on the best available information.” Pls.’ Comments Regarding Commerce’s
Second Remand Determination (“Pls.’ Comments”) at 3. Second, Plaintiffs contend that
Commerce’s normal value calculation “is inflated through unexplained and inappropriate
material inputs.” Id. at 7. The court examines each in turn.
A. Commerce’s selection of “best available information”
For the Second Remand Determination, Commerce revised its methodology for
calculating the Cooperative Respondents’ antidumping duty margins. Commerce explained its
revised methodology:
COURT NO . 00-00309 PAGE 8
Under [19 U.S.C. § 1677f-1(c)], we establish dumping margins by
comparing the normal value (“NV”) and export price (“EP”) of the
subject merchandise sold during the period of investigation. To
determine the margins for the [Cooperative Respondents], we first
calculated a single NV for the [Cooperative Respondents] by
relying upon the corroborated factors of production and values
provided by the petitioners in the original petition. However,
consistent with the Remand Determination, we adjusted certain
values to reflect the Turkish values for juice apples, selling,
general, and administrative expenses, overhead, and profit.
In the petition, the corroborated EP was based on U.S. price
obtained by the petitioners. However, since the [Cooperative
Respondents] were requested to provide the volume and value of
their United States sales of apple juice concentrate during the
period of investigation, we were able to use this information as the
basis for calculating an EP that more accurately reflected the actual
U.S. selling prices of these companies. [Title 19 U.S.C. §
1677a(c)] requires the Department to make adjustments to the EP
before it can be compared to the NV to establish a dumping
margin. These adjustments typically include packing, movement
charges, taxes, etc. Since the average gross unit prices reported by
these companies were inclusive of movement and other selling
expenses, it was necessary to restate these prices on a net unit price
basis. This was accomplished by deducting from these gross unit
prices, the weighted-average difference between the Section A
gross unit prices of the [Fully-Investigated Respondents]. These
adjustments and calculations using the actual data of the [Fully-
Investigated Respondents] enabled us to establish the antidumping
margins for the separate rate companies as accurately as possible.
Second Remand Determination at 5–6 (citation omitted).
Plaintiffs take issue with Commerce’s revised methodology. Specifically, Plaintiffs argue
that
Commerce has calculated an average deduction for EP sales based
on verified sales data reported by the [Fully-Investigated
Respondents]. However, Commerce has chosen to ignore the
verified data from these same respondents in its calculation of
COURT NO . 00-00309 PAGE 9
normal value. Instead, Commerce has resorted to the unverified
assumptions about the factors of production contained in the
petition. . . .
On its face, it would appear that the best available source of
information for both the net U.S. sales price calculation and the
normal value calculation would be the information reported by the
[Fully-Investigated Respondents] and verified by the Department
in its original investigation.
Pls.’ Comments at 3–4 (emphasis in original).
In response, the United States (“Government”), on behalf of Commerce, contends that
[b]ecause Commerce did not possess information specific to the
cooperating respondents necessary to adjust the fully-investigated
respondents’ data and as the record established that the experience
of the fully-investigated respondents differed significantly from the
experience of the cooperating respondents, Commerce reasonably
developed a methodology from which it could better discern the
appropriate margin rate.
Def.’s Reply to Pls.’ Comments Upon the Second Remand Redetermination (“Def.’s
Comments”) at 7. In support of its position, the Government cites Commerce’s reasoning set out
in the Second Remand Determination. Id. (citing Second Remand Determination at 7). In the
Second Remand Determination, Commerce specifically responded to Plaintiffs’ concern that the
petition data were not the “best available information” for calculating the Cooperative
Respondents’ margin:
Since the record of investigation does not contain any company-
specific factors of production data for the [Cooperative
Respondents], as best available information, we relied upon the
corroborated factors of production from the petition. We did not
rely upon the factors of production for the fully-investigated
companies because the record of the investigation shows that the
factors of production vary significantly from company to company.
COURT NO . 00-00309 PAGE 10
Thus, there is no basis for assuming that the factors of production
for the fully-investigated companies are any more representative of
the factors of production of the [Cooperative Respondents] than the
information from the petition.
Second Remand Determination at 7–8. The Government argues that Plaintiffs’
proposed methodology . . . is premised upon speculation that is
unsupported by the record. Specifically, [Plaintiffs] assume[] the
experience of the fully-investigated respondents mirrors that of the
cooperating respondents. The record, however, does not support
that assumption. To the contrary, the section A questionnaire
responses showed a large difference between the fully-investigated
respondents’ and the cooperating respondents’ average selling
price to the United States. Accounting for the same or similar sale
terms, the cooperating respondents’ average United States section
A selling price was [significantly] lower than the fully-investigated
respondents’.
Def.’s Comments at 7–8 (citing Second Remand Determination at 7) (emphasis in original).
It is worth noting that Plaintiffs do not take issue with either of the findings relied upon
by Commerce in reaching its conclusions with respect to its selection of data. That is, Plaintiffs
do not dispute (1) that “the factors of production for the fully-investigated companies . . . var[ied]
significantly from company to company,”2 Second Remand Determination at 7, and (2) that “the
gross average U.S. selling price of the separate-rate companies is well below the gross average
selling3 price of the fully-investigated companies with the same reported terms of sale . . . .” Id.
2
An examination of the Section D questionnaire responses for the Fully-
Investigated Respondents confirms this finding.
3
Specifically, Plaintiffs do not dispute that “[a]ccounting for the same or similar
sale terms, the cooperating respondents’ average United States Section A selling price was 21
percent lower than the fully-investigated respondents’.” Def.’s Comments at 8 (citing Second
Remand Determination at 7) (emphasis in original). An examination of the Section A
(continued...)
COURT NO . 00-00309 PAGE 11
Rather, Plaintiffs rely on the notion that the Fully-Investigated Respondents and the Cooperative
Respondents are necessarily indistinguishable.
The court finds that Commerce’s determination with respect to “best available
information” is proper. Specifically, Commerce has “articulate[d] a ‘rational connection between
the facts found and the choice made.’” Rhodia, Inc. v. United States, 25 CIT __, __, 185 F.
Supp. 2d 1343, 1348 (2001) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156168 (1962)). Commerce determined that the “best available information” was the corroborated
data from the petition. It explained that the wide variation between the Fully-Investigated
Respondents’ and the Cooperative Respondents’ production data and sales price data indicated
that their experiences were not necessarily comparable. Therefore, Commerce further
determined that “there is no basis for assuming that the factors of production for the fully-
investigated companies are any more representative of the factors of production of the
[Cooperative Respondents] than the information in the petition.” Second Remand Determination
at 7. As there is no dispute with respect to the evidence relied upon by Commerce in reaching its
conclusion that the circumstances of the Fully-Investigated Respondents and the Cooperative
Respondents were not necessarily the same, and as Plaintiffs make no showing that Commerce’s
normal value calculation would be more accurate based on the alternative information on the
record, the court sustains Commerce’s determination in this regard. See Nation Ford Chem. Co.
v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999) (citing Lasko Metal Prods., Inc. v. United
3
(...continued)
questionnaire responses for the Fully-Investigated Respondents and the Cooperative Respondents
confirms this finding.
COURT NO . 00-00309 PAGE 12
States, 43 F.3d 1442, 1446 (Fed. Cir. 1994)) (“While § 1677b(c) provides guidelines to assist
Commerce in this process, this section also accords Commerce wide discretion in the valuation
of factors of production in the application of those guidelines.”). “Commerce’s finding that there
‘was no basis to add additional factors for [indirect labor]’ was supported by substantial
evidence. That Plaintiff ‘can point to evidence . . . which detracts from . . . [Commerce’s]
decision and can hypothesize a . . . basis for a contrary determination is neither surprising nor
persuasive.’” Air Prods. & Chems., Inc., 22 CIT at 444, 14 F. Supp. 2d at 748 (quoting
Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 936 (Fed. Cir. 1984)).
B. Commerce’s normal value calculation
Plaintiffs argue that “[n]otwithstanding [their first argument], if it is reasonable for
Commerce to base its normal value calculation on information from the petition, the calculation
must still be revised to remove inappropriate and unexplained material inputs.” Pls.’ Comments
at 7. Plaintiffs point to two examples in support of this argument. First, Plaintiffs state that
[t]he most arbitrary addition Commerce made to its normal value
calculation is the addition of a material input that is merely
described as “maintenance/supplies.” On its face, it is apparent
that an item defined as “maintenance/supplies” is not a material
input. Instead, maintenance/supply items are properly designated
as factory overhead. Thus, in light of the fact that Commerce is
already adding a 17.64% factory overhead ratio to its normal value
calculation, the inclusion of a factory overhead item in its material
inputs is an unlawful double counting.
Pls.’ Comments at 8 (citation omitted) (emphasis in original). Plaintiffs then state:
Likewise, Commerce makes no attempt to explain what material
inputs are accounted for in “miscellaneous costs” and
“miscellaneous utilities.” It is difficult to imagine what could be
COURT NO . 00-00309 PAGE 13
included in these “miscellaneous” baskets since Commerce has
already listed every necessary input for [apple juice concentrate]
(and the energy costs) individually.
Id. Plaintiffs conclude that
it is wholly unreasonable for Commerce to include these extra
expenses in its normal value calculation without even attempting to
describe the material inputs they are supposed to represent. Their
inclusion demonstrates that Commerce has failed to use the best
available information in its normal value calculation, and that it has
failed to recalculate the Section A margin as accurately as possible.
Id. at 9.
The Government argues:
Suggesting that the Court delve into the minutia of antidumping
rate calculations, [Plaintiffs] contend[] elements of the petition
data are unexplained. The basis for each of the petition line-items,
however, is evident from Commerce’s various corroboration
memoranda. The petition data is [sic] derived from the records of
[an identifiable source]. Thus, the line-items for miscellaneous
costs and maintenance/supplies, for example, originate from that
[source].
Def.’s Comments at 9–10 (citations omitted).
While complaining of Commerce’s behavior, Plaintiffs make no effort to prove their case.
Rather, they rely on what they claim to be true “[o]n its face” and what “[i]s difficult to imagine.”
Pls.’ Comments at 8. An examination of the record, though, reveals the following concerning the
factors of production. First, there are no actual costs for the factors of production of the
Cooperative Respondents since they were not asked to answer Section D of the questionnaire.
Second, there was a lack of uniformity in the responses of the Fully-Investigated Respondents
COURT NO . 00-00309 PAGE 14
with respect not only to the value of the factors of production, but also as to the factors of
production themselves. For instance, with respect to Apple Juice Concentrate, one respondent
listed “pectolytic [enzyme]” as an individual factor while others did not. See Conf. R. Doc. 41,
Ex. D-1. “Gelatin” was listed as an individual factor by three respondents but not by the others.
Compare Conf. R. Docs. 42, 43, 45, Ex. D-1 with Conf. R. Docs. 40, 41, Ex. D-1. Further, there
is no correlation between many of the factors listed in the Section D questionnaire responses of
the Fully-Investigated Respondents and those found in the petition. For instance, “pectinex,”
“plastic liners,” “aseptic,” “steel drums,” “labels,” and “PakLab” (labor hours for packing) are all
listed individually on the Fully-Investigated Respondents’ Section D questionnaire responses but
are not individually broken down in the petition. Compare Conf. R. Docs. 40, 41, 42, 43 and 45
with Pet. for the Imposition of Antidumping Duties: Certain Non-Frozen Apple Juice
Concentrate from China, Conf. R. Doc. 1, Ex. 12, Attach. B. Thus, it may be presumed that they
are covered by the categories “maintenance/supplies” and “miscellaneous costs.” See
Antidumping Investigation Initiation Checklist of 6/28/99, Conf. App. Def.’s Comments, Ex. 5 at
14. Third, with respect to “miscellaneous utilities,” these are identified as being water and waste
water treatment in Commerce’s memorandum corroborating the petition data (“Corroboration
Memorandum”). See Mem. from Susan H. Kuhbach to File of 4/6/00 (corroborating petition
data), Conf. App. Def.’s Comments, Ex.6 at 3. In constructing normal value, Commerce is
charged with the duty to use the “best available information” in the valuation of factors of
production. See 19 U.S.C. § 1677b(c)(1)(B). In doing so, Commerce must capture all of the
costs of production no matter how characterized. In their papers, Plaintiffs merely demonstrate
that Commerce, using the petition, denominated the various factors of production differently than
COURT NO . 00-00309 PAGE 15
was done in the Section D questionnaire responses of the Fully-Investigated Respondents. They
have not demonstrated, however, that though the factors of production were denominated
differently, they did not capture all of the costs of production. As such, Plaintiffs have offered
nothing but speculation to support their claim that the normal value calculation was flawed.
Given the Corroboration Memorandum and Commerce’s duty to select from among “best
available information,” it has “articulate[d] a ‘rational connection between the facts found and
the choice made.’” Rhodia, Inc., 25 CIT at __, 185 F. Supp. 2d at 1348 (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Perhaps most importantly, however, had Plaintiffs wished to dispute the items about
which it complains, they should have done so in the context of Commerce’s proceedings on
remand. Having failed to do so, Plaintiffs cannot now dispute these items. See Letter from
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP to Commerce of 4/23/03 (comments
on draft remand and recalculation of Section A rate), Conf. App. Def.’s Comments, Ex. 3. The
record shows that Plaintiffs raised other issues as to various factors at the administrative level
and that Commerce did respond to them. However, Plaintiffs did not raise the questions they are
now asking the court to decide. See, e.g., Second Remand Determination at 8 (agreeing with
Plaintiffs that the EP calculation incorrectly relied upon “CEP sales information”); id. (agreeing
with Plaintiffs that the EP calculation “incorrectly deducts ocean freight from all [Cooperative
Respondents’] sales.”). By raising these matters for the first time before this court, Plaintiffs are
simply too late. “The exhaustion doctrine requires a party to present its claims to the relevant
administrative agency for the agency’s consideration before raising these claims to the Court.”
COURT NO . 00-00309 PAGE 16
Fabrique de Fer de Charleroi S.A. v. United States, 25 CIT __, __, 155 F. Supp. 2d 801, 805
(2001) (citing Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946));
Unemployment Comp. Comm’n of Alaska, 329 U.S. at 155 (“A reviewing court usurps the
agency’s function when it sets aside the administrative determination upon a ground not
theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its
ruling, and state the reasons for its action.”); Pohang Iron & Steel Co. v. United States, 23 CIT
778, 792, slip op. 99-112 at 36 (Oct. 20, 1999) (“The court generally takes a strict view of the
need to exhaust remedies by raising all arguments.”); see also Fabrique de Fer de Charleroi S.A.,
25 CIT at __ n.1, 155 F. Supp. 2d at 805 n.1 (noting court’s discretion in application of the
exhaustion requirement and listing examples of exceptions fashioned thereto).
CONCLUSION
For the foregoing reasons, Commerce’s Second Remand Determination is sustained.
Judgment shall enter accordingly.
______________________________
Richard K. Eaton, Judge
Dated: November 20, 2003
New York, New York