Ad Hoc Shrimp Trade Action Committee v. United States

Slip Op. 13 -
UNITED STATES COURT OF INTERNATIONAL TRADE
AD HOC SHRIMP TRADE ACTION
COMMITTEE,
Plaintiff, Before: Donald C. Pogue,
Chief Judge
v.
Consol. Court No. 12-002231
UNITED STATES,
Defendant.
OPINION
[affirming in part and remanding in part the Department of
Commerce’s final results of antidumping duty administrative review]
Dated: August 2, 2013
David A. Yocis, Nathaniel Maandig Rickard and Jordan C.
Kahn, Picard Kentz & Rowe LLP, of Washington, DC, for Plaintiff Ad
Hoc Shrimp Trade Action Committee.
Robert G. Gosselink, Trade Pacific PLLC, of Washington,
DC, for Plaintiffs Marine Gold Products Ltd., Pakfood Public Co.
Ltd., Thai Royal Frozen Food Co. Ltd., Thai Union Frozen Products
Public Co., Ltd., and Thai Union Seafood Co. Ltd.
Joshua E. Kurland, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington,
DC, for Defendant. Also on the brief were Stuart F. Delery, Acting
Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. Of counsel on the brief
was Michael T. Gagain, Attorney, Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce, of Washington,
DC.
1
This action is consolidated with Marine Gold Prods. Ltd. v. United
States, Court No. 12-00220. Order, Nov. 20, 2012, ECF No. 22.
Consol. Court No. 12-00223 Page 2
Pogue, Chief Judge: This consolidated action seeks review of
two determinations by the United States Department of Commerce
(“Commerce”) in the 2010-2011 administrative review of the
antidumping duty order on certain frozen warmwater shrimp from
Thailand.2 Specifically, Respondent Plaintiffs3 challenge
Commerce’s decision not to calculate an individual dumping margin
for Marine Gold.4 In addition, Plaintiff Ad Hoc Shrimp Trade Action
Committee (“AHSTAC”) – an association of domestic warmwater shrimp
producers who participated in this review – challenges Commerce’s
decision not to reduce respondents’ export prices by the amount of
antidumping deposits paid for entries of subject merchandise.5
The court has jurisdiction pursuant to
Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended,
2
See Certain Frozen Warmwater Shrimp from Thailand, 77 Fed. Reg.
40,574 (Dep’t Commerce July 10, 2012) (final results of antidumping
duty administrative review) (“Final Results”) and accompanying
Issues & Decision Mem., A-549-822, ARP 10-11 (July 3, 2012) (“I & D
Mem.”).
3
Respondent Plaintiffs are Marine Gold Products Limited (“Marine
Gold”), Pakfood Public Company Limited, Thai Royal Frozen Food
Company Limited, Thai Union Frozen Products Public Company Limited,
and Thai Union Seafood Company Limited (collectively the
“Respondents”).
4
See Mem. of Points & Auths. in Supp. of [Resp’ts’] [Mot.] for J.
Upon the Agency R., ECF No. 28 (“Resp’ts’ Br.”). Respondents’
brief also presents arguments in support of additional challenges
that Respondents are no longer pursuing. See Pls.’ Reply Mem. in
Supp. of Rule 56.2 Mot. for J. Upon the Agency R., ECF No. 49, at
1. This opinion does not address those matters.
5
See Mem. of L. in Supp. of Pl. [AHSTAC]’s USCIT Rule 56.2 Mot. for
J. on the Agency R., ECF No. 29 (“AHSTAC’s Br.”).
Consol. Court No. 12-00223 Page 3
19 U.S.C. § 1516a(a)(2)(B)(iii) (2006),6 and 28 U.S.C. § 1581(c)
(2006).
As explained below, Commerce’s Final Results are remanded
for reconsideration and/or further explanation regarding Commerce’s
rejection of Marine Gold’s request for individual examination as a
voluntary respondent. As also explained below, Commerce’s denial
of an export price adjustment for the payment of antidumping
deposits is sustained.
STANDARD OF REVIEW
This court will uphold Commerce’s antidumping
determinations if they are in accordance with law and supported by
substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i). Where the
antidumping statute does not directly address the question before
the agency, the court will defer to Commerce’s construction of its
authority if it is reasonable. Timken Co. v. United States, 354
F.3d 1334, 1342 (Fed. Cir. 2004) (relying on Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).
DISCUSSION
I. Marine Gold’s Voluntary Respondent Request
Respondents challenge Commerce’s denial of Marine Gold’s
request for individual examination as a voluntary respondent in
6
Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 12-00223 Page 4
this review. Resp’ts’ Br. at 12-18. Commerce argues that the Court
should decline to adjudicate the merits of this challenge because
of Respondents’ alleged failure to exhaust their administrative
remedies on this issue.7 In the alternative, Commerce contends that
denying Marine Gold’s request for individual examination comports
with a reasonable interpretation and application of Commerce’s
statutory authority because granting the request would have been
unduly burdensome for the agency. Def.’s Resp. at 16-18; see 19
U.S.C. § 1677m(a) (providing that Commerce may decline to calculate
individual weighted average dumping margins for voluntary
respondents not selected for mandatory examination if “individual
examination of such exporters or producers would be unduly
burdensome and inhibit the timely completion of the
investigation”). Each argument will be addressed in turn.
First, the requirement for administrative exhaustion does
not preclude consideration of Respondents’ claim. Certainly
litigants challenging Commerce’s determinations in antidumping
proceedings are generally limited to the arguments submitted to
Commerce in their administrative case briefs below. E.g., Ad Hoc
7
Def.’s Mem. in Opp’n to Pls.’ Rule 56.2 Mots. for J. Upon the
Agency R., ECF No. 42 (“Def.’s Resp.”) at 8-13; see Yangzhou
Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1381
(Fed. Cir. 2013) (“The court ‘shall, where appropriate, require the
exhaustion of administrative remedies.’ The doctrine of exhaustion
provides ‘that no one is entitled to judicial relief . . . until
the prescribed administrative remedy has been exhausted.’”)
(quoting 28 U.S.C. § 2637(d) and Sandvik Steel Co. v. United
States, 164 F.3d 596, 599 (Fed. Cir. 1998) (quoting McKart v.
United States, 395 U.S. 185, 193 (1969)), respectively).
Consol. Court No. 12-00223 Page 5
Shrimp Trade Action Comm. v. United States, __ CIT __, 675 F. Supp.
2d 1287, 1300 (2009). But here Respondents argued in their case
brief, as they do before the court, that Commerce’s decision to
deny Marine Gold’s request for voluntary respondent status failed
to comply with 19 U.S.C. § 1677m(a) because Commerce’s finding
regarding the undue burden of granting Marine Gold’s request was
unreasonable.8 Thus Commerce was put on notice of Respondents’
challenge to the agency’s finding of undue burden under 19 U.S.C.
§ 1677m(a).9 That Respondents have now structured their argument to
take into account relevant legal interpretations that were
contained in a decision issued subsequent to the filing of their
case brief below10 does not alter the essence of their legal
8
Compare Case Br. of [Resp’ts], A-549-822, ARP 10-11
(May 11, 2012), Admin. R. Pub. Doc. 146, at 4-8, reproduced in
Def.’s Resp. pub. app., ECF No. 43, at tab 3, with, Resp’ts’ Br. at
12-18.
9
Cf. Pakfood Pub. Co. v. United States, __ CIT __, 724 F. Supp. 2d
1327, 1352 (2010) (noting that the exhaustion doctrine requires
parties to preserve arguments for judicial review by including them
in their administrative case briefs because doing so puts the
agency on notice of the relevance of such arguments and affords it
an opportunity to fully consider and explain its response to
specific challenges).
10
See Resp’ts’ Br. at 15-18 (arguing that Commerce’s denial of
Marine Gold’s request for voluntary respondent status rendered 19
U.S.C. § 1677m(a) meaningless because “Commerce failed to show that
the burden of reviewing Marine Gold as a voluntary respondent would
have exceeded that presented in the typical antidumping review”)
(relying on Grobest & I-Mei Indus. (Viet.) Co. v. United States, __
CIT __, 853 F. Supp. 2d 1352, 1362-65 (2012) (holding that 19
U.S.C. § 1677m(a) is rendered meaningless where Commerce applies
this provision to deny voluntary respondent status without showing
“that the burden of reviewing a voluntary respondent would exceed
(footnote continued)
Consol. Court No. 12-00223 Page 6
challenge.11 Accordingly, the requirement for administrative
exhaustion does not preclude consideration of Respondents’ claim.
As to the merits of Respondents’ challenge, the
antidumping statute provides that if it is “not practicable” for
the agency to determine individual weighted average dumping margins
for each known exporter and producer of the subject merchandise,
then Commerce is authorized to limit its examination to “a
reasonable number of exporters or producers.” 19 U.S.C. § 1677f-
1(c)(2). Notwithstanding this provision, Commerce is nevertheless
required to calculate an individual weighted average dumping margin
“for any exporter or producer not initially selected for individual
examination under [19 U.S.C. § 1677f-1(c)(2)]” – i.e., for any
voluntary respondent – if that exporter/producer submits to
Commerce the information requested from exporters or producers who
were selected for examination, if “(1) such information is so
submitted by the date specified . . . for exporters and producers
that were initially selected for examination . . . and (2) the
that presented in the typical antidumping or countervailing duty
review”)); Def.’s Resp. at 8 (arguing that the court should apply
the exhaustion doctrine because Respondents’ case brief did not
include the specific argument that Commerce’s reasoning in denying
Marine Gold’s request for voluntary respondent status renders 19
U.S.C. § 1677m meaningless).
11
Cf. JTEKT Corp. v. United States, 642 F.3d 1378, 1384 (Fed. Cir.
2011) (explaining that where a litigant did not have the benefit of
a subsequently rendered legal decision, and thus could not have
argued on that specific basis in briefing below, the litigant on
appeal may rely on such subsequent decisions if the decisions
support the arguments preserved for appeal).
Consol. Court No. 12-00223 Page 7
number of exporters or producers who have submitted such
information is not so large that individual examination of such
exporters or producers would be unduly burdensome and inhibit the
timely completion of the investigation.” Id. at § 1677m(a).
The “unduly burdensome” standard was recognized in a
prior decision holding that, when considering a request for
individual examination pursuant to 19 U.S.C. § 1677m(a), Commerce
“cannot draw its § 1677m(a) analysis so narrowly that it mirrors
the analysis under § 1677f-1(c)(2)” because doing so would render §
1677m(a) meaningless. Grobest, __ CIT at __, 853 F. Supp. 2d at
1364. Grobest ordered Commerce to individually examine a voluntary
respondent where the facts that Commerce put forward to support its
conclusion that such examination would be unduly burdensome merely
referred to “the same burdens that occur in every review.” Id. at
1364-65; see id. at 1364 n.12 (listing factual circumstances
proffered to support Commerce’s conclusion that examination of an
additional respondent would present an undue burden). Grobest held
that to support a finding of undue burden, Commerce must “show that
the burden of reviewing a voluntary respondent would exceed that
presented in the typical antidumping of countervailing duty
review.” Id. at 1365.
Here, Commerce decided that individually examining Marine
Gold would present an undue burden and inhibit the timely
completion of the review based on factual circumstances very
similar to those presented in Grobest. Compare I & D Mem. cmt. 2 at
Consol. Court No. 12-00223 Page 8
16-17, with Grobest, __ CIT at __, 853 F. Supp. 2d at 1364 n.12.12
As in Grobest, “the facts that Commerce put forward to support that
conclusion do not distinguish this case from the paradigmatic
review of an antidumping or countervailing duty order.” Grobest, __
CIT at __, 853 F. Supp. 2d at 1364. Indeed, Commerce’s own
emphasis on prior experience with conducting administrative reviews
– comparing the expected burden of examining Marine Gold to that of
examining mandatory respondents in prior reviews13 – suggests that
12
Commerce emphasized the volume of data the agency was required to
examine; the need to issue multiple respondent-specific
supplemental questionnaires; prior experience showing that
examination of one of the mandatory respondents is likely to
necessitate multiple supplemental questionnaires and extensions of
time; the fact that one of the mandatory respondents had not been
previously reviewed and so would necessitate extra time to review;
and the fact that the Import Administration generally, and the
Operations Office handling this review in particular, was
conducting multiple concurrent reviews. See I & D Mem. cmt. 2 at
16. This list of grievances is virtually identical to that
rejected by the court in Grobest. See Grobest, __ CIT at __, 853 F.
Supp. 2d at 1364 n.12. As the court explained in that case, none
of these factual circumstances are extraordinary or suggest an
undue burden on Commerce because they merely describe the
administrative burden that Commerce must generally face in any
antidumping duty administrative review. Accordingly, to permit
Commerce to reject voluntary respondent requests on these bases
alone would render § 1677m(a) meaningless because such factual
circumstances are generally present in every case. See id. at 1364-
65.
13
See I & D Mem. cmt. 2 at 16-17 (emphasizing the burdens of
previously examining Marine Gold as a mandatory respondent in a
prior administrative review, including the need for “four
supplemental questionnaires for which [Commerce] granted eight
extension requests,” but implicitly demonstrating the comparability
of this burden to that of examining other respondents in prior
proceedings, which Commerce describes as similarly involving
multiple supplemental questionnaires and numerous deadline
extensions).
Consol. Court No. 12-00223 Page 9
what Commerce has here deemed to be undue burden is merely the
usual burden of conducting a thorough review, which is insufficient
to satisfy § 1677m(a)’s standard for rejecting a voluntary
respondent request. Grobest, __ CIT at __, 853 F. Supp. 2d at 1364-
65.
This matter is therefore remanded on the same grounds as
those stated in Grobest. Grobest, __ CIT at __, 853 F. Supp. 2d
at 1364-65. On remand, Commerce must either “show that the burden
of reviewing [Marine Gold] would exceed that presented in the
typical antidumping or countervailing duty review,” id. at 1365, or
else review Marine Gold as a voluntary respondent.
II. Denial of Antidumping Duty Export Price Adjustment
Next, AHSTAC argues that Commerce should have reduced the
export prices calculated in this review by the amount of
antidumping deposits paid on the subject entries. See AHSTAC’s Br.
at 8-24.14 Relying on 19 U.S.C. § 1677a(c)(2)(A),15 AHSTAC argues
14
Although AHSTAC repeatedly refers to the “final assessed
antidumping duties” paid on entries of the subject merchandise,
e.g., AHSTAC’s Br. at 10, this characterization is misleading
because the subject entries have yet to be liquidated and thus the
final antidumping duties owed on them have yet to be actually
assessed. Cf., e.g., Sioux Honey Ass’n v. Hartford Fire Ins. Co.,
672 F.3d 1041, 1047 (Fed. Cir. 2012) (describing the United States’
retroactive antidumping duty assessment system, in which “cash
deposits [are] collected upon entry [as] estimates of the duties
that the importer will ultimately have to pay as opposed to
payments of the actual duties”); Hoogovens Staal BV v. United
States, 22 CIT 139, 145, 4 F. Supp. 2d 1213, 1219 (1998) (“Under
the [antidumping] statute, final duties are assessed upon
liquidation of all subject merchandise entered during the period of
(footnote continued)
Consol. Court No. 12-00223 Page 10
that the payment of antidumping deposits on these entries
constitutes a duty, cost, charge, or expense “incident to bringing
the subject merchandise from the original place of shipment in the
exporting country to the place of delivery in the United States,”
AHSTAC’s Br. at 11 (quoting 19 U.S.C. § 1677a(c)(2)(A)), and must
therefore be deducted from export price. Commerce defends its
decision not to deduct the paid deposits from the export prices
calculated in this review by relying on its long-standing and
judicially-affirmed statutory interpretation that antidumping duty
deposits “are not costs, expenses, or import duties within the
meaning of [19 U.S.C. § 1677a(c)(2)(A)].”16 As explained below,
because Commerce’s decision not to reduce export prices by the
amount of the antidumping deposits paid on the corresponding
review. The uncertainty of knowing the final amount of duties due
at the time of entry is simply an inherent part of importing
merchandise into the United States.”) (internal quotation marks and
citation omitted).
15
(“The price used to establish export price . . . shall be . . .
reduced by . . . the amount, if any, included in such price,
attributable to any additional costs, charges, or expenses, and
United States import duties, which are incident to bringing the
subject merchandise from the original place of shipment in the
exporting country to the place of delivery in the United States
. . . .”).
16
I & D Mem. cmt. 3 at 22-23 (citing, inter alia, Certain Cold-
Rolled Carbon Steel Flat Products from Korea, 63 Fed. Reg. 781,
[787] (Dep’t Commerce Jan. 7, 1998) (final results of antidumping
duty administrative review); Hoogovens Staal, 22 CIT at 146,
4 F. Supp. 2d at 1220; AK Steel Corp. v. United States, 21 CIT
1265, 1280, 988 F. Supp. 594, 607 (1997)).
Consol. Court No. 12-00223 Page 11
entries was based on a reasonable interpretation of an ambiguous
statutory provision,17 this decision is sustained.
AHSTAC is correct that in order to achieve a fair
comparison between export price and normal value, the antidumping
statute directs Commerce to make certain adjustments designed “to
permit comparison of the two prices at a similar point in the chain
of commerce.”18 But while it is true that the antidumping deposit
paid on entries of subject merchandise has no corollary within the
normal value of a foreign like product, it is not, strictly
speaking, an additional cost included in the export price because
it is a refundable security deposit to ensure that the importer
17
Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359-60 (Fed.
Cir. 2007) (“[I]t is clear that Congress has not defined or
explained the meaning or scope of ‘United States import duties’ as
set forth in 19 U.S.C. § 1677a(c)(2)(A). . . . Thus, because
Congress has not directly spoken to the precise question at issue,
this court finds that the statute is ambiguous and proceeds to step
two of Chevron. Under Chevron step two, . . . this court must give
deference to [Commerce]’s interpretation of the statute . . . if
the agency’s interpretation is reasonable.”) (internal quotation
marks omitted) (relying on Chevron, 467 U.S. at 843-44); see also
AK Steel, 21 CIT at 1280 & n.12, 988 F. Supp. at 608 & n.12
(holding that the antidumping statute is ambiguous regarding
whether or not antidumping deposits constitute “import duties” or
“additional costs, charges, and expenses” in the context of export
price adjustment).
18
Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed. Cir.
1995); see also Smith-Corona Grp. v. United States, 713 F.2d 1568,
1571-72 (Fed. Cir. 1983) (explaining that Commerce must adjust both
normal value and export price “in an attempt to reconstruct the
price at a specific, ‘common’ point in the chain of commerce, so
that the value can be fairly compared on an equivalent basis”).
For example, the export price is reduced by the cost of delivering
the subject merchandise from the exporting country to the United
States, 19 U.S.C. § 1677a(c)(2)(A), because this additional cost is
not a part of normal value and so distorts the comparison.
Consol. Court No. 12-00223 Page 12
does not purchase its merchandise below fair value. If upon review
of the relevant pricing data Commerce determines that the subject
entries were purchased at fair prices, then the importer will be
refunded its deposit; but if the review reveals that the entries
were obtained at prices below normal value, then the deposit may be
forfeited and, to the extent that the deposit is exceeded by the
actual antidumping duties owed, will require additional payment.
19 U.S.C. § 1673f; Sioux Honey, 672 F.3d at 1047.
As the antidumping deposit merely serves to provide an
incentive to ensure fair export prices, rather than to burden
importers with additional costs, Commerce’s practice of not
reducing export price by the amount of antidumping deposits paid on
the subject merchandise has repeatedly been upheld because making
such an adjustment would result in double-counting.19 AHSTAC now
argues that in fact there is no such risk of double-counting.
AHSTAC’s Br. at 13. As shown below, however, AHSTAC is incorrect.
To illustrate why an antidumping deposit adjustment to
export price would result in double-counting, consider a simple
hypothetical involving just one arms-length transaction per year.
19
E.g., Hoogovens Staal, 22 CIT at 146, 4 F. Supp. 2d at 1220(upholding “Commerce’s long-standing policy and practice” of not
treating antidumping deposits as import duties or costs); AK Steel,
21 CIT at 1280, 988 F. Supp. at 607 (upholding Commerce’s
explanation that reducing export prices to account for antidumping
duties “would result in double-counting”); PQ Corp. v. United
States, 11 CIT 53, 67, 652 F. Supp. 724, 737 (1987) (“If deposits
of estimated antidumping duties entered into the calculation of
present dumping margins, then those deposits would work to open up
a margin where none otherwise exists.”).
Consol. Court No. 12-00223 Page 13
Assume a normal value (“NV”) (after all relevant adjustments) of
$110. Prior to the imposition of an antidumping duty order,
Commerce investigates whether the merchandise is being sold in the
United States at less than its normal value. Assume that during
its investigation, Commerce calculates an export price (“EP”)
(after all relevant adjustments) of $100. Assuming an affirmative
injury finding by the International Trade Commission, an
antidumping duty order is issued and an estimated duty deposit rate
is set for the producer/exporter in question at 10 percent ((NV –
EP) / EP = (110 – 100) / 100 = 0.1 = 10 percent).20 For each entry
of subject merchandise from this producer/exporter made subsequent
to the effective date of the antidumping duty order, the importer
of record must now pay an antidumping deposit in the amount of 10
percent of the export price. Importantly, however, the actual
antidumping duties owed on such entries are not calculated until
one year following the issuance of the antidumping duty order, at
which time (if a review is requested) the actual export prices of
such entries are compared to contemporaneous normal values and an
actual antidumping duty assessment rate is calculated. If the
review reveals that export prices have now risen to match normal
value, then the dumping margin (and so the antidumping duty
20
To arrive at the weighted average dumping margins that will form
the basis for antidumping duty assessment for each
producer/exporter, Commerce divides its aggregate normal-to-export
price comparisons by the aggregate export prices of the subject
merchandise. See 19 U.S.C. § 1677(35)(B).
Consol. Court No. 12-00223 Page 14
assessment rate) will be zero, and the antidumping deposit will be
returned in full (with interest).
Continuing the hypothetical, assume that the next U.S.
sale of subject merchandise that occurs after imposition of the
antidumping duty order is made at an export price of $110 (after
all relevant adjustments, but not including any adjustment for the
antidumping deposit). Thus the importer pays $110 for the
merchandise, as well as a 10 percent ($11) antidumping deposit.
Assume for the sake of simplicity that this is the only transaction
involving the subject merchandise during the first period of
review. In reviewing this transaction to assess actual antidumping
duties owed under the antidumping duty order, Commerce will compare
the export price to the merchandise’s normal value (which remains
at $110). And here we come to the matter at issue.
AHSTAC’s argument implies that Commerce should deduct
from the export price the $11 antidumping deposit paid by the
importer. Under this approach, the weighted average dumping margin
(and so the actual antidumping duty assessment rate) for this
transaction would be (NV – EP) / EP = (110 – (110 – 11)) / 110 =
(110 – 99) / 110 = 11/110 = 0.1 = 10 percent. Because the duty
assessment rate is equivalent to the antidumping deposit rate on
the transaction, the importer would not receive any portion of its
deposit back. Thus, under AHSTAC’s proposed statutory
interpretation, the importer pays a total of $121 (the $110 export
price plus the $11 antidumping duty), even though normal value is
Consol. Court No. 12-00223 Page 15
only $110. In other words, this approach would force the importer
to pay an antidumping duty even where the importer bought at normal
value prices.
Under Commerce’s long-standing and judicially-approved
practice, on the other hand, the dumping (if any) is equalized by
the assessment of antidumping duties, but the cessation of
purchases at dumped prices is rewarded with the return of the
deposit. Thus, Commerce does not reduce the (adjusted) export
price by the amount of the importer’s deposit (which the importer
expects to be refunded if it buys at fair value): (NV – EP) / EP =
(110 – 110) / 110 = 0, so the deposit is refunded to the importer,
and the importer appropriately pays only the fair price ($110
export price plus the $11 antidumping deposit, minus the $11
deposit refund = $110, which is equivalent to normal value).
As this hypothetical makes clear, Commerce’s explanation
that reducing export price by the amount of the antidumping deposit
would result in double-counting is logical. Reducing the export
price by the amount of the antidumping deposit before comparing the
export price to normal value would essentially force the importer
to pay twice – once when paying an export price raised to normal
value from the previously dumped price, and again when paying an
Consol. Court No. 12-00223 Page 16
antidumping duty notwithstanding having already paid a non-dumped
export price.21
AHSTAC also argues that the non-reimbursement regulation
– pursuant to which Commerce reduces the export prices paid by
importers whose antidumping duties are reimbursed by the producers
or exporters of subject merchandise – provides support for its
position. See AHSTAC’s Br. at 21-22 (relying on 19 C.F.R.
21
Contrary to AHSTAC’s argument, this result is unchanged by the
circumstances presented here, where the producer/exporter also
served as the importer who paid the antidumping deposit.
See AHSTAC’s Br. at 10 (emphasizing that two respondents acted as
their own importers). Just like the antidumping deposit paid by
any other importer, the deposits at issue here will be refunded in
the event that the administrative review reveals that normal values
did not exceed export prices; deducting the deposits from the
export prices prior to their comparison to normal value “would
reduce the U.S. price – and increase the margin – artificially.”
Hoogovens Staal, 22 CIT at 146, 4 F. Supp. 2d at 1220. Moreover,
the distortion remains even where export prices do not rise to
fully match normal value. Assume that in the original unfair
pricing investigation Commerce calculated a (properly adjusted)
normal value of $150 and a (properly adjusted) export price of
$100, thereby setting an antidumping deposit rate at 50 percent
((150-100)/100). Assume that only one entry of subject merchandise
is made prior to final antidumping duty assessment at liquidation.
In reviewing that entry, Commerce calculates an export price of
$120 and a normal value of $150. Without any deduction for the 50
percent antidumping deposit, Commerce would calculate a final
antidumping duty assessment rate for this entry at 25 percent
((150-120)/120), such that the importer would pay a total of $150
($120 export price plus $30 antidumping duty (25 percent of export
price)), thereby exactly matching the merchandise’s normal value.
But with a deduction to export price for the antidumping deposit,
the assessment rate would be 75 percent ((150-(120-60))/120 =
90/120). In this scenario, the importer would pay a total of $210
($120 in export price plus $90 antidumping duty (75 percent of
export price)) even though normal value is only $150.
Consol. Court No. 12-00223 Page 17
§ 351.402(f)(1)(i) (2012) (the “non-reimbursement regulation”).22
But this claim is similarly unpersuasive.
AHSTAC argues that where, as here, the producer/exporter
also acts as the importer, the circumstances are indistinguishable
from those leading to an export price reduction pursuant to the
non-reimbursement regulation.23 But the non-reimbursement
regulation exists to ensure that the antidumping duty order’s
incentive for importers to buy at non-dumped prices is not negated
by exporters who sell at dumped prices while removing the
importer’s exposure to antidumping liability.24 The regulation does
not entail, as AHSTAC suggests, treating antidumping duties as
22
(“In calculating the export price (or the constructed export
price), [Commerce] will deduct the amount of any antidumping duty
. . . which the exporter or producer: (A) Paid directly on behalf
of the importer; or (B) Reimbursed to the importer.”).
23
AHSTAC’s Br. at 22 (“[O]n what grounds does Commerce distinguish
the reimbursement situation from the undisputed facts of this case
. . . ? The record is devoid of any answer to this question .
. . .”).
24
Hoogovens Staal, 22 CIT at 143, 4 F. Supp. 2d at 1218 (“The [non-
]reimbursement regulation provides that the calculation of U.S.
price include an adjustment for the amount of any antidumping
duties reimbursed or paid by the exporter. . . . Without the
regulation, a foreign exporter or producer could assume the cost of
antidumping duties owed and thereby nullify the effect of the
duties in the U.S. market.”) (citations omitted). Although
Hoogovens Staal concerned 19 C.F.R. § 353.26 (1994) – the
predecessor to the current non-reimbursement regulation, 19 C.F.R.
§ 351.402(f) – the substance of the regulation remained unchanged
when the regulation was renumbered. See Antidumping Duties;
Countervailing Duties, 62 Fed. Reg. 27,296 (Dep’t Commerce May 19,
1997) (final rule) (announcing the final renumbering).
Consol. Court No. 12-00223 Page 18
costs or charges to be deducted from export price to achieve a fair
comparison.
To the contrary, Commerce’s application of the non-
reimbursement regulation supports the agency’s reasoning that
making an antidumping deposit deduction to export price in the
absence of reimbursement would result in double-counting because
Commerce applies the non-reimbursement regulation – which requires
an export price deduction for reimbursed duty payments – by
effectively double-counting the dumping margin.25 It follows that
25
See, e.g., Nereida Trading Co. v. United States, __ CIT __, 683
F. Supp. 2d 1348, 1353 (2010) (“Because [an importer] had not filed
a certificate of non-reimbursement . . ., Customs doubled the
assessed duty margin . . . .”); Uruguay Round Agreements Act,
Statement of Administrative Action, H.R. Rep. No. 103-316 (1994) at
886, reprinted in 1994 U.S.C.C.A.N. 4040, 4211 (noting that
Commerce’s practice in applying the non-reimbursement regulation
“is to instruct Customs to double the duties if the importer fails
to furnish a certificate of non-reimbursement to Customs prior to
liquidation of entries”). To see why this is so, assume that,
during the investigation upon which an antidumping duty order is
based, Commerce calculated a (properly adjusted) normal value of
$110 and a (properly adjusted) export price of $100, thereby
setting an antidumping deposit rate of 10 percent ((110-100)/100).
After the antidumping duty order goes into effect, the importer
must now pay a 10 percent deposit on entries of subject
merchandise, which will be refunded only if the importer buys at
non-dumped prices. But now assume that the exporter promises to
reimburse the importer for the 10 percent deposit, permitting the
importer to continue to buy at dumped prices without threat of
losing its deposit. Assume that only one entry of subject
merchandise is made prior to final antidumping duty assessment at
liquidation. In reviewing that entry, Commerce calculates an
export price of $100 and a normal value of $110. In the absence of
the non-reimbursement regulation, the weighted-average dumping
margin (and so the actual antidumping duty assessment rate) for
that entry would be 10 percent ((110-100)/100). But acting
pursuant to the non-reimbursement regulation (based on the
exporter’s agreement to reimburse the importer for its antidumping
(footnote continued)
Consol. Court No. 12-00223 Page 19
where, as here, the circumstances do not support a finding of
reimbursement,26 deducting the antidumping duty deposit payments
from the export price would arbitrarily double-count the dumping
margin.
Therefore, because Commerce’s decision not to reduce
export prices by the amount of antidumping deposits paid on subject
entries was, as explained above, based on a reasonable
interpretation of an ambiguous statutory provision, this decision
is sustained.
liability), Commerce deducts the reimbursed deposit (10 percent of
100 = 10) from the export price (100 – 10 = 90), thereby
effectively doubling the dumping margin ((110-90)/100 = 20/100 = 20
percent). Thus, contrary to AHSTAC’s argument, Commerce’s
application of the non-reimbursement regulation supports Commerce’s
reasoning that, where this regulation is not applicable, deducting
antidumping duty deposit payments from the export price would
result in an arbitrary double-counting of the dumping margin.
26
As Commerce explained, the non-reimbursement regulation is
inapplicable here because “the respondents are not reimbursing or
paying the assessed duties on behalf of the importer – they are
paying the duties as the importer.” I & D Mem. cmt. 3 at 24;
see also id. (“This position is consistent with [Commerce]’s
uniformly-applied interpretation of 19 C.F.R. § 351.402(f)(1)(i)
that a party cannot ‘reimburse’ itself when acting as its own
importer of record.”) (citing Brass Sheet and Strip from Germany,
Am. Issues & Decision Mem., A-428-602, ARP 08-09 (Oct. 28, 2010)
(adopted in 75 Fed. Reg. 66,347 (Dep’t Commerce Oct. 28, 2010)
(amended final results of antidumping duty administrative review))
cmt. 9; Circular Welded Non-Alloy Steel Pipe and Tube from Mexico,
63 Fed. Reg. 33,041, 33,044 (Dep’t Commerce June 17, 1998) (final
results of antidumping duty administrative review)); AHSTAC’s Br.
at 21 (“AHSTAC recognizes that Commerce’s practice is not to apply
the [non-reimbursement] regulation [when the producer/exporter acts
as the importer of record] . . . .”).
Consol. Court No. 12-00223 Page 20
CONCLUSION
For all of the foregoing reasons, Commerce’s Final
Results are sustained except with regard to Commerce’s rejection of
Marine Gold’s request for individual examination as a voluntary
respondent. This issue is remanded for further consideration,
consistent with this opinion. Commerce shall have until September
9, 2013, to complete and file its remand results. Plaintiffs shall
have until September 23, 2013, to file comments. The parties shall
have until October 3, 2013, to file any reply.
It is SO ORDERED.
____________________________
Donald C. Pogue, Chief Judge
Dated: August 2, 2013
New York, NY