Viet I-Mei Frozen Foods Co. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
VIET I-MEI FROZEN FOODS CO., LTD.,
Plaintiff-Appellant
v.
UNITED STATES, AD HOC SHRIMP TRADE
ACTION COMMITTEE,
Defendants-Appellees
______________________
2016-1006
______________________
Appeal from the United States Court of International
Trade in No. 1:14-cv-00092-DCP, Judge Donald C. Pogue.
______________________
Decided: October 11, 2016
______________________
MATTHEW R. NICELY, Hughes Hubbard & Reed LLP,
Washington, DC, argued for plaintiff-appellant. Also
represented by DANIEL MARTIN WITKOWSKI.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee United
States. Also represented by BENJAMIN C. MIZER, JEANNE
E. DAVIDSON, PATRICIA M. MCCARTHY, JOSHUA E.
KURLAND; MYKHAYLO GRYZLOV, Office of Chief Counsel for
2 VIET I-MEI FROZEN FOODS CO. v. US
Trade Enforcement and Compliance, United States De-
partment 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.
______________________
Before PROST, Chief Judge, CHEN and STOLL, Circuit
Judges.
CHEN, Circuit Judge.
Viet I-Mei Frozen Foods Co., Ltd., successor in inter-
est 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 results in the reconducted fourth
administrative 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 Com-
merce Mar. 19, 2014) (final results of reconducted admin-
istrative 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.
VIET I-MEI FROZEN FOODS CO. v. US 3
BACKGROUND
A.
The antidumping statute provides for the assessment
of remedial duties on foreign merchandise sold in the
United States at less than fair market value that materi-
ally 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 re-
evaluate 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 adminis-
trative review of the duty order if it believes a currently
assigned rate is too low. 19 C.F.R. § 351.213(b)(1). Con-
versely, an exporter or producer may request administra-
tive review of the order if it believes its currently assigned
rate is too high. Id. § 351.213(b)(2). Absent such a re-
quest for review, the duty continues to be assessed at the
preexisting rate. Id. § 351.212(c)(1)(i).
In cases where a large number of exporters and pro-
ducers are involved in an administrative review proceed-
ing 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–1(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-
4 VIET I-MEI FROZEN FOODS CO. v. US
datory respondent will generally receive what is known as
the “all-others” rate. See id. § 1673d(c)(1)(B)(i)(II).
In addition, a company not selected for individual ex-
amination may voluntarily submit questionnaire respons-
es containing all of the information requested from
mandatory respondents and request individual examina-
tion under 19 U.S.C. § 1677m(a)(1). 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.
Proceedings 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 oper-
ate on market principles of cost or pricing structures, the
normal value may not reflect the fair value of the mer-
chandise. See id. § 1677(18)(A). In NME proceedings,
Commerce begins with the presumption that all respond-
ents 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
1 These questionnaires generally seek corporate in-
formation, including corporate and business structure,
affiliations with other companies, and ownership details,
as well as sales and production data. Commerce may also
issue supplemental questionnaires if additional infor-
mation is required.
VIET I-MEI FROZEN FOODS CO. v. US 5
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.
B.
On February 1, 2005, Commerce made a final deter-
mination 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 anti-
dumping duty order). Vietnam is designated as a NME
country and Commerce begins with a rebuttable pre-
sumption that a company operating within Vietnam is
subject to state control. See Certain Frozen and Canned
Warmwater Shrimp from the Socialist Republic of Vi-
etnam, 69 Fed. Reg. 71,005 (Dep’t of Commerce Dec. 8,
2004). Commerce presumptively applies a single country-
wide antidumping rate of 25.76%—the Vietnam-wide
rate—to all imports of frozen warmwater shrimp from
Vietnam.
Grobest is a producer of frozen warmwater shrimp
from Vietnam covered by the antidumping duty order.
Although not individually examined as a mandatory or
6 VIET I-MEI FROZEN FOODS CO. v. US
voluntary respondent during the first three administra-
tive 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. 2 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 administra-
tive review of the duty order (AR4), covering the period of
February 1, 2008, through January 31, 2009.
In March 2009, Commerce initiated the review of
nearly 200 exporters and producers for AR4. Because of
the large number of companies involved in AR4, Com-
merce determined that individual examination of each
would be impractical. Instead, as it had done in previous
review periods, Commerce selected for mandatory indi-
vidual examination the two largest companies by vol-
ume—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. Com-
merce declined to examine Grobest individually and on
2 See Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam, 72 Fed. Reg. 52,052 (Dep’t
of Commerce Sept. 12, 2007) (final results of the first
antidumping duty administrative review and first new
shipper review); Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam, 73 Fed. Reg. 52,273(Dep’t of Commerce Sept. 9, 2008) (final results of second
administrative review); Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam, 74 Fed.
Reg. 47,191 (Dep’t of Commerce Sept. 15, 2009) (final
results of third administrative review).
VIET I-MEI FROZEN FOODS CO. v. US 7
August 9, 2010, published the Final Results for AR4.
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 satisfy-
ing the requirements for separate-rate status, received
the average of the mandatory respondents’ margins—i.e.,
3.92%. Companies that did not demonstrate freedom
from government control sufficient to achieve separate-
rate status received the Vietnam-wide rate of 25.76%.
Grobest brought suit in the CIT on August 19, 2010,
challenging Commerce’s refusal to individually examine
Grobest as a voluntary respondent. 3 Grobest argued the
refusal was unlawful because Commerce is required to
examine any company that seeks individual review unless
it would be unduly burdensome pursuant to 19 U.S.C.
§ 1677m(a)(2). And, according to Grobest, Commerce’s
justification for not individually examining Grobest was
lacking. After nearly two years of litigation, the CIT
agreed with Grobest and ordered Commerce to examine
Grobest as a voluntary respondent. See Grobest & I-Mei
Indus. (Vietnam) v. United States, 853 F. Supp. 2d 1352,
1362 (Ct. Int’l Trade 2012); Grobest & I-Mei Indus. (Vi-
etnam) v. United States, 815 F. Supp. 2d 1342 (Ct. Int’l
Trade 2012). The CIT entered Final Judgment on Sep-
tember 13, 2012, ordering that Commerce “shall re-
conduct its administrative review . . . of the anti-dumping
order . . . by individually examining Grobest as a volun-
tary respondent.” JA3246.
On October 17, 2012, Commerce published a notice
that it would conduct the administrative review of
3 Shortly thereafter, on December 31, 2010, Grobest
& I-Mei’s shrimp processing operation was purchased by
Viet I-Mei, who continued to press for individual exami-
nation and assignment of an individualized antidumping
rate for Grobest in AR4.
8 VIET I-MEI FROZEN FOODS CO. v. US
Grobest consistent with the CIT’s Final Judgment.
Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, 77 Fed. Reg. 63,786 (Dep’t of Com-
merce Oct. 17, 2012) (notice of court decision not in har-
mony with final results of administrative review, notice of
re-conducted administrative review of Grobest & I-Mei
Industrial (Vietnam) Co., Ltd., and notice of amended
final results of administrative review). But then Grobest
had a change of heart. On December 12, 2012, less than
two months later, Grobest submitted a request to with-
draw its participation from the individual examination
that it had been fighting for years to secure. Grobest
stated that its reversal of position was “due to the signifi-
cant management, personnel and accounting changes that
have occurred . . . since the time of the period of review.”
JA3275. Without any explanation, Grobest continued
that “[i]n short, the administrative and legal costs of this
examination are greater than the company wishes to
incur at this time.” Id. Instead, Grobest requested to be
given the 3.92% separate rate it previously disputed.
Commerce did not respond to Grobest’s withdrawal
request and issued a supplemental questionnaire seeking
clarification of discrepancies in Grobest’s previously
reported data and further details concerning Grobest’s
affiliations. Commerce warned Grobest that failure to
provide complete and accurate information by the re-
sponse deadline of January 29, 2013 may result in a
finding based on adverse facts available. The Domestic
Producers voiced their objection to Grobest’s request to
withdraw in a letter to Commerce on January 25, 2013.
And on the response due date, instead of providing an-
swers to the questionnaires or requesting an extension of
time to do so, Grobest submitted a second request to
rescind the examination.
On February 6, 2013, Commerce indicated its intent
to proceed with the individual examination of Grobest and
it again sought answers to the supplemental question-
VIET I-MEI FROZEN FOODS CO. v. US 9
naire, extending the deadline to February 13, 2013.
Commerce reiterated that failure to cooperate may result
in the application of adverse facts to arrive at a rate.
Once again, on the due date set by Commerce, Grobest
refused to answer the questionnaire and instead submit-
ted a third request to discontinue examination, claiming
again that it no longer wished to continue with the exam-
ination because the costs of proceeding were greater than
the company wished to incur.
In September 2013, Commerce issued the preliminary
results of the reconducted AR4 review of Grobest (Recon-
ducted Preliminary Results). In response to Grobest’s
requests to forgo the individual examination ordered in
the CIT’s Final Judgment, Commerce stated it “does not
consider that the circumstances here warrant such a
departure.” JA3313. Commerce went on to explain:
Grobest’s principle [sic] contention is that it is
unwilling to incur the administrative and legal
costs associated with participating in the adminis-
trative review. However, a company may not im-
pede an antidumping proceeding by refusing to
incur administrative and legal costs associated
with participating in the proceeding. Moreover,
the Department has spent significant resources as
a result of Grobest’s challenge to the Depart-
ment’s original decision not to review Grobest in-
dividually.
Id. Turning next to the appropriate rate to assign
Grobest, Commerce preliminarily determined that
Grobest failed to cooperate by not acting to the best of its
ability to comply with repeated requests for information
and impeded the proceeding within the meaning of 19
U.S.C. §§ 1677e(a)(2) and 1677e(b). Commerce noted that
under such circumstances, the agency consistently as-
signs an adverse facts available (AFA) rate equal to the
highest rate determined for any respondent in any seg-
10 VIET I-MEI FROZEN FOODS CO. v. US
ment of the proceeding. Thus, it assigned Grobest an
AFA rate of 25.76%—the Vietnam-wide rate assigned to
those companies unable to establish an entitlement to
separate rate status. Commerce explained that this rate
“is appropriate for Grobest in that it is sufficient to ensure
that Grobest does not benefit from failing to cooperate in
[the reconducted] review by refusing to respond to [Com-
merce]’s request for complete information regarding its
affiliations, sales of subject merchandise, and factors of
production.” JA3315.
Grobest requested that Commerce reconsider its con-
clusions in the Reconducted Preliminary Results. Grobest
first argued that Commerce should rescind the reconduct-
ed review because the CIT’s Final Judgment should not
be considered binding on Commerce and Grobest filed a
request to withdraw within the 90-day time period pursu-
ant to 19 C.F.R. § 351.213(d)(1). Grobest went on to argue
that it would not gain any undue or unfair advantage if it
withdrew its voluntary respondent request. The Domestic
Producers, in turn, presented a different explanation for
Grobest’s new position. They argued that Grobest’s
decision to withdraw was driven by a desire to avoid
disclosing its affiliation with companies recently found to
have committed material misrepresentations in connec-
tion with efforts to evade antidumping duties on warm-
water shrimp from Vietnam and China. They then urged
that Grobest’s “[a]voidance of [Commerce’s] affiliation
inquiry should be given weight in interpreting and evalu-
ating Grobest’s explanation for declining to further partic-
ipate in a proceeding that it requested.” JA3369. The
Domestic Producers concluded that “the respondent’s own
actions led directly to it being preliminarily assigned the
25.76% Vietnam-wide rate as AFA.” JA 3373.
In March, 2014, Commerce published the Reconduct-
ed Final Results, in which it continued to reject Grobest’s
request to rescind the examination and affirmed its
decision to apply the Vietnam-wide rate of 25.76%. Com-
VIET I-MEI FROZEN FOODS CO. v. US 11
merce reasoned that the CIT had “specifically ordered
[Commerce] to conduct an individual examination of
Grobest, [and] rescission would be in conflict with the CIT
order and judgment.” JA3376-77. Commerce next ex-
plained that Grobest’s reliance on 19 C.F.R.
§ 351.213(d)(1) was misplaced because that regulation
pertains to withdrawal of an initial request for adminis-
trative review and not a request for individual examina-
tion as a voluntary respondent. Even if the regulation
was applicable, Commerce explained that such a request
must be made within ninety days of the initiation of the
administrative review (which had long since passed) and
must also be made by all parties who requested the ad-
ministrative review (including the Domestic Producers
who had not withdrawn their request for review and
opposed Grobest’s request to withdraw). Commerce
concluded that “the unique circumstances surrounding
this review, including the Final Judgment and the re-
quest for review by Petitioners” weighed against rescind-
ing the voluntary review of Grobest. Commerce also
noted the seriousness of the Domestic Producers’ allega-
tion of a scheme to avoid antidumping duties, but declined
to consider it in making its determination due to the lack
of supporting evidence in the record.
Grobest filed a complaint with the CIT, appealing
Commerce’s Reconducted Final Results. Before the CIT,
Grobest argued that Commerce unlawfully refused to
permit Grobest to withdraw its individual review request
and that Grobest’s assigned rate was retaliatory and
impermissibly punitive. Grobest acknowledged that the
statutory and regulatory framework does not expressly
contemplate a voluntary respondent’s rescission of a
request for individual examination. However, it argued
that the 90-day deadline found in 19 C.F.R.
§ 351.213(d)(1), applicable to rescinding an administrative
review generally, should also apply to its request to
withdraw from the CIT’s ordered individual review.
12 VIET I-MEI FROZEN FOODS CO. v. US
Given that it made its withdrawal request within ninety
days of the start of the reconducted review, Commerce,
according to Grobest, could not have expended significant
resources during that limited time frame, and the Domes-
tic Producers would not be prejudiced because Grobest
would still be assigned the separate rate of 3.92% for AR4.
Commerce, for its part, stressed to the CIT that there
was no regulation requiring Commerce to terminate the
proceeding and the 90-day grace period contemplated by
19 C.F.R. § 351.213(d)(1) was simply inapplicable. Com-
merce explained that under 19 C.F.R. § 351.204(d)(2),
voluntary respondents selected for examination are to be
treated like mandatory respondents. And mandatory
respondents are not permitted to unilaterally dictate their
level of involvement in the proceeding. Even if Commerce
was to look to 19 C.F.R. § 351.213(d)(1) for guidance, it
contended that the legislative history of the statute
authorizing Commerce to conduct an administrative
review makes clear “Commerce could rightfully continue a
review in which there is an expressed interest,” further
indicating that Grobest had no entitlement to withdraw,
especially in light of the Domestic Producers’ objection to
rescinding the examination. According to Commerce, the
CIT’s command to review Grobest and the weakness of
Grobest’s excuse for discontinuing the review at such a
late hour further counseled against withdrawal. Com-
merce thus argued that it reasonably determined to
proceed with the examination and to use AFA when
Grobest withheld information and failed to cooperate to
the best of its ability.
Following briefing and oral argument, the CIT sus-
tained Commerce’s Reconducted Final Results. Viet-I Mei
Frozen Foods Co. v. United States, 83 F. Supp. 3d 1345(Ct. Int’l Trade 2015). The CIT found Grobest’s professed
reasons for requesting withdrawal unpersuasive, noting:
VIET I-MEI FROZEN FOODS CO. v. US 13
[T]his change of ownership occurred nearly two
years prior to the entry of judgment, in favor of
Grobest, on its initial request for individual exam-
ination. In that time, Grobest could easily have
voluntarily dismissed its litigation in demand of
individual examination (thereby obtaining the
very result that Grobest now seeks), but chose not
to do so.
Id. at 1356–57. The CIT also noted that Commerce was
not required by any statutory or regulatory authority to
terminate the examination. Id. at 1362. In addition, the
CIT found that sound policy considerations warranted
Commerce’s treatment of voluntary respondents as man-
datory respondents with no right to withdraw. Id. It
went on to find Commerce’s assignment of the Vietnam-
wide rate of 25.76% was appropriate and not punitive
given Grobest’s failure to cooperate. Id. at 1363. Grobest
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(5).
DISCUSSION
This court reviews a CIT decision regarding Com-
merce’s antidumping determinations de novo, applying
the same standard used by the CIT in evaluating Com-
merce’s determinations, findings, and conclusions. Apex
Exports v. United States, 777 F.3d 1373, 1377 (Fed. Cir.
2015). We will uphold Commerce’s decision unless it is
“unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i). Substantial evidence is defined as
evidence that a “reasonable mind might accept as ade-
quate to support a conclusion.” Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). An agency finding may
still be supported by substantial evidence even if two
inconsistent conclusions can be drawn from the evidence.
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
I.
14 VIET I-MEI FROZEN FOODS CO. v. US
We turn first to Grobest’s argument that Commerce
erred when it denied Grobest’s request to rescind the
reconducted individual examination. Grobest concedes
that voluntary respondents, once selected, do not have an
absolute right to determine whether an individual exami-
nation will proceed. Nevertheless, it argues that Com-
merce was required to terminate the individual
examination of Grobest based on the circumstances here.
The foundation for Grobest’s argument is that the
administrative and policy concerns embedded in 19 C.F.R.
§ 351.213(d)(1), which relates to complete rescission of an
administrative review, should also be used to judge the
reasonableness of Commerce’s treatment of requests by
voluntary respondents to withdraw from individual
examination. Under the regulation, if a request to rescind
is made within ninety days of the notice of initiation of
the administrative review, Commerce will grant the
request. Otherwise, Commerce retains the discretion to
rescind outside the 90-day window but may take into
account whether, for example, Commerce has devoted
considerable time and resources to the review. Grobest
argues that in promulgating this regulation, Commerce
was seeking to strike a balance between the party’s
interests in foregoing examination and maintaining the
status quo with Commerce’s need to avoid procedural
abuses and wasting resources. It reasons that Commerce
should likewise conduct the same inquiry when a volun-
tary respondent is in the analogous position of seeking to
cancel an individual examination (within an ongoing
review) it has requested. Having set the stage for its view
of how Commerce should have approached the inquiry,
Grobest argues that Commerce misevaluated the circum-
stances here.
First, Grobest contends that Commerce incorrectly be-
lieved it was bound as a matter of law by the CIT’s earlier
Final Judgment ordering Commerce to conduct an indi-
vidual examination of Grobest and similarly bound by the
VIET I-MEI FROZEN FOODS CO. v. US 15
Domestic Producers’ objection to rescinding the examina-
tion. It thus argues that Commerce improperly failed to
consider the circumstances weighing in favor of rescind-
ing the voluntary review. Next, Grobest argues that to
the extent Commerce undertook any evaluation of the
circumstances, Commerce’s analysis was unreasonable
given the timing of Grobest’s request within the 90-day
deadline set forth in 19 C.F.R. § 351.213(d)(1) and the fact
that Commerce could not have yet expended considerable
resources in connection with the reconducted examina-
tion.
Like Commerce and the CIT, we reject Grobest’s at-
tempt to analogize its request to withdraw from the
individual examination as a voluntary respondent with a
withdrawal of a request for an administrative review
under 19 C.F.R. § 351.213(d)(1). The regulations lack any
“90-day provision” that permits a voluntary respondent
like Grobest to withdraw from an instituted individual
examination and we decline Grobest’s invitation to essen-
tially promulgate one. Moreover, this court has previous-
ly recognized that Congress intended to allow Commerce
the authority to avoid the investigative burden associated
with an administrative review in situations where the
domestic industry has no continued interest in proceed-
ing. See Oregon Steel Mills Inc. v. United States, 862 F.
2d 1541, 1545–46 (Fed. Cir. 1988) (citing H.R. REP. NO.
98-1156, at 181 (1984), as reprinted in 1984 U.S.C.C.A.N.
5220, 5298) and noting “[a]dministrative reviews . . . are
expensive and burdensome. If industry interest is lack-
ing, Congress intended to eliminate that investigative
burden”); see also Ferro Union v. United States, 44 F.
Supp. 2d 1310, 1315–16 (Ct. Int’l Trade 1999) (noting
Commerce’s well-established policy of not rescinding a
party’s review under 19 C.F.R. § 351.213(d)(1) if another
interested party has expressed a desire to continue).
Unlike a complete rescission where the domestic industry
no longer seeks the assessment of any duties, the Domes-
16 VIET I-MEI FROZEN FOODS CO. v. US
tic Producers here expressed a continued and keen inter-
est in having Commerce follow through with an individual
examination of Grobest. In addition, because Grobest’s
preferred outcome would not lead to the entire rescission
of the administrative review, its request will not entirely
eliminate the expense and burden placed on Commerce in
connection with the review. Thus, the policies underlying
19 C.F.R. § 351.213(d)(1) do not so easily match to the
present situation where all parties, including Grobest,
still seek continuing the administrative review and the
Domestic Producers still seek examination of Grobest in
particular.
If anything, Commerce’s regulations point away from
granting a voluntary respondent’s request to cancel an
individual examination it had requested. Under 19 C.F.R.
§ 351.204(d)(2), “[a] voluntary respondent accepted for
individual examination . . . will be subject to the same
requirements as an exporter or producer initially selected
by [Commerce] for individual examination under [19
U.S.C. § 1677f–1(c)(2) as a mandatory respondent].” In
other words, voluntary respondents, like mandatory
respondents, cannot unilaterally dictate their level of
participation once accepted for examination. As the CIT
recognized below, “[i]f it were otherwise, the voluntary
respondent process would be subject to potential manipu-
lation by companies seeking individual review and then
declining to proceed if the review started to look unfavor-
able.” Viet-I Mei Frozen Foods, 83 F. Supp. 3d at 1358.
Thus, Commerce was reasonable in treating Grobest as a
mandatory respondent with no right to escape review once
it was selected for individual examination pursuant to the
CIT’s Final Judgment. Nor was Commerce required by
any statutory or regulatory authority to rescind the court-
ordered individual examination simply because Grobest
no longer wished to proceed, regardless of the timing of its
rescission request.
VIET I-MEI FROZEN FOODS CO. v. US 17
We need not reach the issue of whether Commerce
was in fact bound as a matter of law by the Final Judg-
ment or the Domestic Producers’ objection (which the CIT
also chose not to address) because we disagree with
Grobest’s characterization of Commerce’s justifications for
denying Grobest’s request to rescind the individual re-
view. Contrary to Grobest’s allegation, Commerce ex-
plained in the Reconducted Preliminary and Final Results
that multiple factors, including but not limited to the
Final Judgment and the Domestic Producers’ objection,
counseled against granting Grobest’s request. Those
additional considerations included Commerce’s expendi-
ture of resources to date and the insufficiency of Grobest’s
justification for seeking to avoid review. Thus, we reject
Grobest’s argument that Commerce somehow erred as a
matter of law on that basis.
Moreover, we agree with Commerce that it was emi-
nently reasonable for it to point to the CIT’s Final Judg-
ment as well as the Domestic Producers’ objections to
Grobest’s sudden desire to withdraw as legitimate reasons
to maintain the individual examination. And given the
nature of the supplemental questionnaire, Commerce
appeared to have reasonable concerns with the veracity or
completeness of Grobest’s previously submitted data,
warranting further investigation. Grobest also does not
meaningfully refute Commerce’s justification that it was
not inclined to rescind the individual examination be-
cause it had already expended considerable time and
resources in connection with the individual examination.
Commerce’s efforts reviewing Grobest’s initial question-
naire responses, identifying and documenting numerous
discrepancies in Grobest’s representations (including the
company’s affiliations, the quantity and value of its sales
of subject merchandise, and factors of production), and
formulating supplemental questions to address those
concerns cannot be readily dismissed as insignificant.
18 VIET I-MEI FROZEN FOODS CO. v. US
These considerations all further support the reasonable-
ness of Commerce’s decision to continue the examination.
Conversely, Grobest’s professed reason for withdraw-
ing its request for review—the change in ownership—does
not withstand scrutiny. The change of ownership from
Grobest & I-Mei to Viet I-Mei took place in December
2010. Like Commerce and the CIT, we find unpersuasive
Grobest’s argument that it was not until years later, after
the Final Judgment was entered and after the notice of
reconducted examination was published in October 2012,
that it appreciated the impact of this change in owner-
ship.
We also find unpersuasive Grobest’s argument on ap-
peal that withdrawal was necessary because it was no
longer confident in its ability to provide complete and
accurate data. Grobest neither voiced that concern to
Commerce nor did it take advantage of the statutory
procedures designed to address those concerns. 4 Rather,
it stated only that “the administrative and legal costs of
this examination are greater than the company wishes to
incur at this time.” JA3275. But, as Commerce explained
in its Reconducted Preliminary Results, a respondent has
no legitimate interest in impeding Commerce’s investiga-
tions simply to avoid the costs of participating.
4 “If an interested party, promptly after receiving a
request from [Commerce] for information, notifies [Com-
merce] that such party is unable to submit the infor-
mation requested in the requested form and manner,
together with a full explanation and suggested alternative
forms in which such party is able to submit the infor-
mation, [then Commerce] shall consider the ability of the
interested party to submit the information in the request-
ed form and manner and may modify such requirements
to the extent necessary to avoid imposing an unreasona-
ble burden on that party.” 19 U.S.C. § 1677m(c)(1).
VIET I-MEI FROZEN FOODS CO. v. US 19
Accordingly, because Commerce’s decision to continue
the court-ordered individual examination was both a
reasonable exercise of its authority and supported by
substantial evidence, we affirm.
II.
Grobest next challenges the application of AFA and
specifically the assignment of the 25.76% Vietnam-wide
rate. First, Grobest argues that the application of AFA
was unreasonable because its inability to cooperate in the
reconducted individual examination was the direct result
of Commerce’s prior unlawful actions and the years of
litigation that ensued. Next, it argues that the specific
AFA rate of 25.76%, more than five times the separate
rate of 3.92%, was far beyond commercial reality and any
deterrence factor warranted by the facts of this case. At
most, Grobest argues, the proper adverse inference would
have been to deny Grobest the benefit of voluntary exam-
ination and assign it the 3.92% separate rate it had
fought for years to avoid.
During the course of an administrative review, when
a respondent “withholds information that has been re-
quested by [Commerce],” “fails to provide such infor-
mation by the deadlines . . . or in the form and manner
requested,” “significantly impedes a proceeding,” or “pro-
vides such information but the information cannot be
verified,” Commerce “shall” use “facts otherwise availa-
ble” in reaching any necessary determinations. 19 U.S.C.
§ 1677e(a)(2)(A)–(D). If Commerce further finds a re-
spondent has “failed to cooperate by not acting to the best
of its ability to comply with a request for information,” it
“may use an inference that is adverse to the interests of
that party in selecting from among the facts otherwise
available.” Id. § 1677e(b). In other words, it may apply a
rate derived from adverse facts available. Commerce
“may employ [such] inferences . . . to ensure that the
party does not obtain a more favorable result by failing to
20 VIET I-MEI FROZEN FOODS CO. v. US
cooperate than if it had cooperated fully.” Statement of
Administrative Action accompanying the Uruguay Round
Agreements Act (SAA), H.R. REP. NO. 103–316, vol. 1, at
870 (1994), as reprinted in 1994 U.S.C.C.A.N. 4040, 4199.
In selecting an AFA rate, Commerce may use infor-
mation from the petition, investigation, prior administra-
tive reviews, or “any other information placed on the
record.” 19 U.S.C. § 1677e(b); see also Gallant Ocean
(Thailand) Co. v. United States, 602 F.3d 1319, 1323 (Fed.
Cir. 2010) (noting that “in the case of uncooperative
respondents,” Commerce has discretion to “select from a
list of secondary sources as a basis for its adverse infer-
ences”); F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v.
United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000).
We first address Grobest’s attempts to relieve itself
from responsibility for Commerce’s application of the AFA
rules to derive a rate. Even if we were to accept Grobest’s
contention that it was unable to provide complete and
accurate information due to the passage of time, that
alone does not discharge its duty to act to the best of its
ability in responding to Commerce’s requests. Regardless
of the circumstances that Grobest believed were the cause
of its situation, “the statutory mandate that a respondent
act to ‘the best of its ability’ requires the respondent to do
the maximum it is able to do.” Nippon Steel Corp. v.
United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).
Here, Grobest’s rote explanation that it no longer wished
to incur the costs of examination, its failure to explain the
specific information it believed was missing or inaccurate,
and its decision not to comply with the statutory proce-
dures available to respondents with such concerns fall far
short of Grobest’s statutory obligation. Under these
circumstances, we cannot say that Commerce’s reliance
on AFA was unreasonable.
We also reject Grobest’s suggestion that at most an
AFA rate of 3.92% would be appropriate here. That is the
VIET I-MEI FROZEN FOODS CO. v. US 21
same rate that was received by cooperative respondents
and indeed is lower than the 4.98% rate assigned to
mandatory respondent Nha Trang Seafoods, who fully
cooperated with Commerce and justified its entitlement to
its separate rate. Thus, Grobest’s proposal would only
incentivize gamesmanship and undermine the purpose of
the AFA provisions if recalcitrant respondents like
Grobest were rewarded with favorable rates over those
given to fully cooperative respondents. See SAA at 870
(explaining that Commerce “may employ [such] inferences
. . . to ensure that the party does not obtain a more favor-
able result by failing to cooperate than if it had cooperat-
ed fully”). We find that substantial evidence supports
Commerce’s determination that the 25.76% Vietnam-wide
rate was appropriate to ensure Grobest did not benefit
from refusing to cooperate with Commerce’s requests for
complete information regarding its affiliations, sales of
subject merchandise, and factors of production. Moreover,
the selected rate was derived directly from the original
investigation and corroborated by comparing the rate to
the transaction-specific margins of cooperating respond-
ents in AR4. Grobest has never meaningfully challenged
this corroboration analysis or questioned the reliability of
the Vietnam-wide rate. Thus, given Grobest’s failure to
cooperate in the examination and the lack of any specific
challenge to Commerce’s corroboration analysis, we find
the application of the Vietnam-wide rate is amply sup-
ported by the record.
CONCLUSION
For these reasons, we find no error in Commerce’s re-
fusal to discontinue the individual examination of Grobest
and assignment of an AFA duty rate of 25.76% after
Grobest repeatedly refused to cooperate with Commerce’s
requests for information. We have considered the parties’
remaining arguments and find them unpersuasive.
Accordingly, the CIT’s decision is affirmed.
22 VIET I-MEI FROZEN FOODS CO. v. US
AFFIRMED
COSTS
No costs.