Slip Op. 02-42
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RICHARD K. EATON, JUDGE
____________________________________
:
HUAIYIN FOREIGN TRADE :
CORPORATION (30); WORLDWIDE :
LINK, INC.; CAPTAIN CHARLIE :
SEAFOOD WHOLESALE CO., USA; :
BOSTON SEAFOOD PROCESSORS, :
INC.; GMRI, INC.; OCEAN DUKE :
CORPORATION, :
:
Plaintiffs, :
:
v. : Court No. 00-05-00240
:
UNITED STATES DEPARTMENT :
OF COMMERCE, :
:
Defendant, :
:
and :
:
CRAWFISH PROCESSORS :
ALLIANCE; LOUISIANA :
DEPARTMENT OF AGRICULTURE :
& FORESTRY AND BOB ODOM, :
COMMISSIONER :
:
Defendant-Intervenors. :
____________________________________:
Foreign exporter Plaintiff Huaiyin Foreign Trade Corporation 30 (“Huaiyin 30”) and domestic
importers (collectively “Plaintiffs”) brought action challenging United States Department of
Commerce’s (“Commerce”) findings on review of antidumping duty order covering freshwater
crawfish tail meat from the People’s Republic of China exported by Plaintiff Huaiyin 30.
Plaintiffs moved, pursuant to USCIT R. 56.2, for judgment upon the agency record arguing that
Commerce: (1) violated statutory and regulatory procedures by failing to provide Plaintiffs with
adequate notice of and an adequate opportunity to participate in the review investigation; and (2)
by issuing its Clarification of Message, caused United States Customs Service (“Customs”)
improperly to increase Plaintiff Huaiyin 30’s cash deposit rate and wrongly apply it retroactively
to Plaintiff Huaiyin 30’s entries of merchandise. In addition, Plaintiffs claimed that payment by
Court No. 00-05-00240 Page 2
the United States Government of antidumping duties to domestic industry pursuant to 19 U.S.C.
§ 1675c(a) (“Byrd Amendment”) changed antidumping statute from one remedial in nature into a
statute that imposed a penalty and, therefore, Plaintiffs were entitled to full due process rights
including a review proceeding as provided in the Administrative Procedure Act. United States
(“Government”), on behalf of Commerce, argued that Commerce: (1) provided Plaintiffs with
adequate notice of and an adequate opportunity to participate in the review investigation; and (2)
properly clarified to Customs that Plaintiff Huaiyin 30 was not entitled to cash deposit based on
antidumping duty margin of 91.5 percent. Finally, Government claimed payment of antidumping
duties to domestic industry did not transform antidumping regime into one that imposed a
penalty and, therefore, Plaintiffs were not entitled to full due process rights including a review
proceeding as provided in Administrative Procedure Act. United States Court of International
Trade, Eaton, J., held: (1) Commerce provided Plaintiffs with adequate notice of pendency of
administrative review, and adequate opportunity to participate in such review; (2) Commerce
properly clarified to Customs that Plaintiff Huaiyin 30 was not entitled to cash deposit based on
antidumping duty margin of 91.5 percent; and (3) payment of antidumping duties to domestic
industry in accordance with Byrd Amendment did not transform antidumping regime into one
that imposed a penalty.
[Plaintiffs’ motion denied; final determination of Commerce sustained.]
Decided: April 30, 2002
Garvey, Schubert & Barer (William E. Perry and John C. Kalitka) for Plaintiffs Huaiyin
Foreign Trade Corporation (30), Worldwide Link, Inc., Captain Charlie Seafood Wholesale Co.,
USA, Boston Seafood Processors, Inc., GMRI, Inc., and Ocean Duke Corporation.
Robert D. McCallum, Jr., Deputy Assistant Attorney General; David M. Cohen, Director,
United States Department of Justice; Velta A. Melnbrencis, Assistant Director, United States
Department of Justice, Civil Division, Commercial Litigation Branch.
Adduci, Mastriani & Schaumberg, L.L.P. (James Taylor, Jr. and John C. Steinberger) for
Defendant-Intervenors Crawfish Processors Alliance, Louisiana Department of Agriculture &
Forestry and Bob Odom, Commissioner.
OPINION
EATON, Judge: This matter is before the court on the motion of Huaiyin Foreign Trade
Corporation 30 (“Huaiyin 30”), Worldwide Link, Inc., Captain Charlie Seafood Wholesale Co.,
USA, Boston Seafood Processors, Inc., GMRI, Inc., (“GMRI/Red Lobster”) and Ocean Duke
Court No. 00-05-00240 Page 3
Corporation1 (collectively “Plaintiffs”) for judgment upon the agency record pursuant to USCIT
R. 56.2. Plaintiffs challenge certain aspects of the first administrative review of the antidumping
duty order covering imports of freshwater crawfish tail meat from the People’s Republic of China
(“PRC”) for the period of March 26, 1997, through August 31, 1998. See Freshwater Crawfish
Tail Meat From the P.R.C.: Final Results of Administrative Antidumping Duty and New Shipper
Reviews, and Final Rescission of New Shipper Review, 65 Fed. Reg. 20,948 (Apr. 19, 2000)
(“Final Results”). The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c)
and 19 U.S.C. § 1516a(a)(2)(i)(I). Where a party challenges the findings of an antidumping
review, the court will 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). For the reasons set forth below, the court denies Plaintiffs’
motion and the final determination of the United States Department of Commerce is sustained.
BACKGROUND
On September 20, 1996, the Crawfish Processors Alliance (“Petitioner”), on behalf of the
domestic industry, filed a petition with the United States Department of Commerce
(“Commerce”) alleging that imports of freshwater crawfish tail meat from the PRC were being
sold, or were likely to be sold, in the United States at less than fair value. See Freshwater
Crawfish Tail Meat From the P.R.C.; Initiation of Antidumping Investigation, 61 Fed. Reg.
1
As the domestic importers of the subject merchandise, Plaintiffs Worldwide Link,
Inc., Captain Charlie Seafood Wholesale Co., USA, Boston Seafood Processors, Inc., GMRI/Red
Lobster and Ocean Duke Corporation are “interested parties” within the meaning of 19 U.S.C. §
1677(9).
Court No. 00-05-00240 Page 4
54,154 (Oct. 17, 1996).2 Following receipt of the petition, Commerce initiated an investigation
and sent antidumping questionnaires to various PRC freshwater crawfish tail meat exporters and
producers. See Notice of Prelim. Determination of Sales at Less Than Fair Value: Freshwater
Crawfish Tail Meat From the P.R.C., 62 Fed. Reg. 14,392, 14,393 (Mar. 26, 1997)
(“Investigation Prelim. Determination”). Questionnaire responses were received from numerous
companies,3 including Huaiyin Foreign Trade Corporation (“HFTC”).4 Plaintiff Huaiyin 30, an
2
The period of investigation covered 1996–97 and
[t]he product covered by this investigation is freshwater crawfish
tail meat, in all its forms (whether washed or with fat on, whether
purged or unpurged), grades, and sizes; whether frozen, fresh, or
chilled; and regardless of how it is packed, preserved, or prepared.
Excluded from the scope of the investigation are live crawfish and
other whole crawfish, whether boiled, frozen, fresh, or chilled.
Also excluded are saltwater crawfish of any type and parts thereof.
See Freshwater Crawfish Tail Meat From the P.R.C.; Initiation of Antidumping Investigation, 61
Fed. Reg. at 54,155.
3
The following companies submitted questionnaire responses: China Everbright
Trading Company, Binzhou Prefecture Foodstuffs Imp. & Exp. Corp., Yancheng Fengbao
Aquatic Food Co., Ltd., Yancheng Foreign Trade Corp., Huaiyin Foreign Trade Corp., Jiangsu
Cereals, Oils & Foodstuffs Imp. & Exp. Corp., Jiangsu Light Industrial Prods. Imp. & Exp.
(Group) Yangzhou Co., Lianyungang Yupeng, Jiangsu Overseas Group Corp., Anhui Cereals,
Oils & Foodstuffs Imp. & Exp. Corp., Qidong Baolu Aquatic Prods. Co., Ltd., Shandong
Foodstuffs Imp. & Exp. parte. Corp., Nantong Delu Aquatic Food Co., Ltd., Huaiyin Ningtai
Fisheries Co., Ltd., and Yancheng Baolong Aquatic Foods Co., Ltd. See Investigation Prelim.
Determination, 62 Fed. Reg. at 14,393.
4
Among the complicating factors in this action is the confusion resulting from the
similarity in names of the various PRC entities—i.e., Huaiyin Foreign Trade Corp., Huaiyin
Foreign Trade Corporation 5 (“Huaiyin 5”) and Huaiyin Cereals, Oils & Foodstuffs Import and
Export Corporation are a single concern—while Plaintiff Huaiyin 30 is an unrelated entity.
Court No. 00-05-00240 Page 5
entity unrelated to HFTC, took no part in the proceedings.5 As it had done previously,
Commerce treated the PRC as a nonmarket economy country6 and, thus, companies wishing to
receive a company-specific antidumping duty margin were required to demonstrate an absence of
state control. Id. at 14,394. In its questionnaire response, HFTC indicated that it was applying
for a separate company-specific margin. Id.
In August of 1997, Commerce completed its investigation and established antidumping
duty margins for individual producers and for the PRC as a whole. HFTC demonstrated the
requisite absence of state control and, thus, its company-specific antidumping duty margin was
set at 91.5 percent. See Notice of Final Determination of Sales at Less Than Fair Value:
Freshwater Crawfish Tail Meat From the P.R.C., 62 Fed. Reg. 41,347, 41,349 (Aug. 1, 1997),
amended by, Notice of Amendment to Final Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Freshwater Crawfish Tail Meat From the P.R.C., 62 Fed. Reg. 48,219
(Sept. 15, 1997) (“The ad valorem weighted-average dumping margins are as follows . . .
Huaiyin Foreign Trading Corporation . . . 91.50” percent.) (“LTFV Final Determination”). As
5
In their papers Plaintiffs assert that, “[a]s stated to [Commerce] in its
questionnaire response, [Plaintiff] Huaiyin 30 paid its legal fees to the lawyer in the initial
investigation . . . . Unfortunately, [Plaintiff] Huaiyin 30 was misled. The lawyer did not file any
documents for [Plaintiff] Huaiyin 30 on the record of the initial investigation.” (Pls.’ Mem.
Supp. Mot. J. Agency R. at 2.)
6
A nonmarket economy is defined by the antidumping statute as “any foreign
country that the administering authority determines does not operate on market principles of cost
or pricing structures, so that sales of merchandise in such country do not reflect the fair value of
the merchandise.” 19 U.S.C. § 1677(18)(A) (1994). “Any determination that a foreign country
is a nonmarket economy country shall remain in effect until revoked by the administering
authority.” 19 U.S.C. § 1677(18)(C)(i). Commerce’s designation of China as a nonmarket
economy country is not disputed.
Court No. 00-05-00240 Page 6
Plaintiff Huaiyin 30 took no part in the proceedings, it was assigned the PRC-wide antidumping
duty margin of 201.63 percent, as were all other exporters of crawfish tail meat that did not
establish their independence from government control. See id. at 41,349 (“We are applying a
single antidumping [PRC] rate . . . to all exporters in the PRC other than those firms that were
fully responsive to our requests for information.”). Commerce based this “determination . . . on
[the] presumption that the export activities of the companies that failed to” demonstrate the
absence of state control “are controlled by the PRC government.” Id. (citation omitted).
Therefore, because it did not qualify for a separate rate in the investigation, Plaintiff Huaiyin 30
was assigned the PRC-wide antidumping duty margin of 201.63 percent. (See Issue and
Decision Mem., 04/07/2000, Pub. R. Doc. 214 at 124 (“[Plaintiff Huaiyin 30] has never qualified
for a separate rate, either in this review or the LTFV investigation . . . .”).)
According to Plaintiffs, following the issuance of the LTFV Final Determination, events
transpired outside of the context of any Commerce proceeding that affected the subsequent
course of events. First, upon learning that HFTC had received a lower rate than Plaintiff Huaiyin
30, the local PRC government concluded that Plaintiff Huaiyin 30 should take advantage of
HFTC’s lower rate:
After the 1996 crawfish investigation, HFTC[] got a relatively low
antidumping duty rate while [Plaintiff] Huaiyin 30 got a much
higher rate. [Plaintiff] Huaiyin 30 and other local crawfish
exporters wanted to use HFTC[’s] low rate. HFTC[] was unhappy
about this and asked the Committee for assistance. . . . [T]he
Committee and other local companies felt that HFTC[] should
share its rate with other local exporters.
(Pls.’ Mem. Supp. Mot. J. Agency R. at 8 (citing Committee Verification Report, Pub R. Doc.
Court No. 00-05-00240 Page 7
185 at 3) (emphasis in Pls.’ Mem.).) Thus, despite having been assigned the PRC-wide
antidumping duty margin of 201.63 percent, Plaintiff Huaiyin 30 took advantage of HFTC’s
separate company-specific antidumping duty margin of 91.5 percent when exporting its product
to the United States. This decision on the part of the local PRC government appears to have
raised questions in the minds of Plaintiff Huaiyin 30’s customers who consequently made
inquiries. On this point, Plaintiffs state that GMRI/Red Lobster:
[M]et with the Vice Director of the China Commodities Inspection
Bureau . . . and the Vice General Manager of [Plaintiff Huaiyin]
30 . . . . These gentleman assured [GMRI/Red Lobster that Plaintiff
Huaiyin] 30 was entitled to the 91.5% tariff. When asked . . . for
documentation they produced a circular from their industry
association which clearly stated Huaiyin Foreign Trade
Corporation was entitled to the 91.5% tariff. They also produced a
letter from the US Embassy in Beijing which stated Huaiyin
Foreign Trade Corp., without specifying numbers, had the benefit
of the 91.5% tariff. The officials with whom [GMRI/Red Lobster]
were meeting proffered those documents as substantiation for their
representation [that] any crawfish purchased from [Plaintiff
Huaiyin] 30 could be imported into the US under the 91.5% rate.
(Response of Worldwide Link, Inc., et al., Supplemental Questionnaire of 02/17/00, Pub. R. Doc.
172 at 7; see also Pls.’ Mem. Supp. Mot. J. Agency R. at 6). In addition, Plaintiffs assert that,
GMRI/Red Lobster, made numerous attempts to contact the U.S.
government, including [Commerce] to determine whether the
91.5% cash deposit rate for Huaiyin Foreign Trade Corp. applied to
[Plaintiff] Huaiyin 30 before importing crawfish from [Plaintiff]
Huaiyin 30. Red Lobster contacted [Plaintiff] Huaiyin 30 and
[HFTC], the U.S. Embassy and [Commerce] itself seeking
clarification in the summer of 1998. After seeking such
clarification and receiving only a copy of the antidumping order
with the 91.5% cash deposit rate for Huaiyin Foreign Trade Corp.,
in the summer of 1998, Red Lobster imported the crawfish from
[Plaintiff] Huaiyin 30 relying on the language in the antidumping
order.
(Pls.’ Mem. to Commerce of 11/14/99, Pub. R. Doc. 125 at 15–16; see also Pls.’ Mem. Supp.
Court No. 00-05-00240 Page 8
Mot. J. Agency R. at 37–38.)
The antidumping order remained unchallenged until September 1998. At that time,
Commerce “received a request from [Petitioner] to conduct an administrative review of the
antidumping order on freshwater crawfish tail meat from the PRC.” See Notice of Preliminary
Results of Antidumping Duty Administrative Review and New Shipper Reviews, Partial
Rescission of the Antidumping Duty Administrative Review, and Rescission of the New Shipper
Review for Yancheng Baolong Biochemical Products, Co. Ltd.: Freshwater Crawfish Tail Meat
From the P.R.C., 64 Fed. Reg. 55,236, 55,237 (Oct. 12, 1999) (“Prelim. Results”). In its request,
Petitioner identified certain exporters of crawfish tail meat, including “Huaiyin Foreign Trade
Corp.” for review. (See letter from Ablondi & Foster to Commerce of 9/30/98, Pub. R. Doc. 3 at
2); see also Initiation of Antidumping and Countervailing Duty Administrative Review, Requests
for Revocation in Part and Deferral of Administrative Reviews, 63 Fed. Reg. 58,009, 58,010
(Oct. 29, 1998) (“Notice of Initiation”). Petitioner did not, however, name Plaintiff Huaiyin 30
in its petition and Commerce did not specifically name it in the Notice of Initiation. (See letter
from Ablondi & Foster to Commerce of 9/30/98, Pub. R. Doc. 3 at 2); Notice of Initiation, 63
Fed. Reg. at 58,010. Commerce then sent questionnaires to the PRC crawfish tail meat exporters
identified in the Notice of Initiation.
Thereafter, in September 1999, “[a]fter an . . . inquiry from” the United States Customs
Service (“Customs”), (Def.’s Mem. Opp’n to Mot. J. Agency R. at 22.), Commerce issued a
“Clarification of Message” to Customs regarding which company was actually entitled to a cash
Court No. 00-05-00240 Page 9
deposit based on the separate lower “HFTC” antidumping duty margin. (Def.’s Mem. Opp’n to
Mot. J. Agency R., Ex. 7 at 4; Def.’s Mem. Opp’n to Mot. J. Agency R. at 22.) The Clarification
of Message stated that HFTC “was also known as” Huaiyin 5 and, therefore, per the LTFV Final
Determination “only freshwater crawfish tail meat [entries] imported from” HFTC or Huaiyin 57
were entitled to a cash deposit based on the separate company-specific antidumping duty margin
of 91.5 percent. (Def.’s Mem. Opp’n to Mot. J. Agency R., Ex. 7 at 4; Pls.’ Mem. Supp. Mot. J.
Agency R. at 10 (citation omitted).) As a result, imported crawfish tail meat entries from
Plaintiff Huaiyin 30 were to be entered with a cash deposit based on the PRC-wide antidumping
duty margin of 201.63 percent. In addition, in accordance with Commerce’s instructions,
Customs imposed a cash deposit based on the PRC-wide antidumping duty margin of 201.63
percent on all Plaintiff Huaiyin 30’s 1997–98 crawfish tail meat entries imported into the United
States. (Id.) Consequently, certain domestic importers8 of Plaintiff Huaiyin 30’s crawfish tail
meat were required “to post additional cash deposits of approximately 110” percent to cover the
difference. (Pls. Mem. Supp. Mot. J. Agency R., App. Tab 5 at 12.)
On October 12, 1999, Commerce issued its preliminary findings for the administrative
review of the antidumping order. See Prelim. Results, 64 Fed. Reg. at 55,236. Commerce
7
Commerce, in making its clarification, stated that the entity known to it as
Huaiyin 5 “is the same entity that submitted the sales and factors information on which
[Commerce] based the separate rate . . . in the LTFV investigation” and, therefore, Huaiyin 5 was
entitled to a cash deposit based on HFTC’s separate company specific antidumping duty margin
of 91.5 percent. (See Issue and Decision Mem., Pub. R. Doc. 214 at 138.) As previously noted
in footnote 4 supra, HFTC and Huaiyin 5 constitute the same entity.
8
The importers affected by Commerce’s Clarification of Message include the
domestic importer Plaintiffs. (Pls.’ Mem. Supp. Mot. J. Agency R., App. Tab 5 at 1.)
Court No. 00-05-00240 Page 10
preliminarily determined that sales of crawfish tail meat imported into the United States from the
PRC were made below normal value during the period of investigation. In making its
determination, Commerce continued to treat the PRC as a nonmarket economy country. Id. at
55,241 (“In every case conducted by [Commerce] involving the PRC, the PRC has been treated
as an [nonmarket economy] country.”). As such, Commerce followed its policy9 that “exporters
in [nonmarket economy countries] are entitled to separate, company-specific margins [if] they
can demonstrate an absence of government control, both in law and in fact, with respect to [their]
export activities.” Id. at 55,240. Companies that did not request a separate rate, and companies
unable to demonstrate an absence of state control would be assigned the PRC-wide rate. Id. In
determining “the PRC-wide rate, [Commerce] used the highest rate from the petition, . . . which
was [also] the PRC-wide rate in the” LTFV Final Determination. See Prelim. Results, 64 Fed.
Reg. at 55,239. Consequently, Commerce continued to assess the PRC-wide antidumping duty
margin, found in the initial investigation, of 201.63 percent. Id.
Following the review of comments on the Prelim. Results received from interested
parties, including Plaintiff Huaiyin 30, Commerce issued the Final Results on April 19, 2000. In
the Final Results, Commerce made no changes to the margin calculations with respect to HFTC
9
Commerce also followed its policy “that [a] separate-rates questionnaire must be
[submitted and] evaluated each time a respondent makes a separate rate claim, regardless of any
separate rate the respondent received in the past.” See Prelim. Results, 64 Fed. Reg. at 55,239
(citation omitted). Thus, HFTC had the burden of demonstrating, again, its independence from
PRC governmental control. Commerce, however, was unable to perform verification of HFTC,
because “the company refused to permit verification . . . of its questionnaire response.” Id. at
55,238 (citation omitted). As such, Commerce did “not use the information” submitted in
HFTC’s questionnaire. Instead, Commerce decided that “the use of [facts available was]
required for” HFTC. Id. (citation omitted).
Court No. 00-05-00240 Page 11
and Plaintiff Huaiyin 30 from the margins set out in the Prelim. Results. See Final Results, 65
Fed. Reg. at 20,949. Instead, Commerce concluded that HFTC and Huaiyin 5 constituted a
single company, and that such company failed to demonstrate an absence of state control. Thus,
crawfish tail meat entries labeled with either name were assigned the PRC-wide antidumping
duty margin of 201.63 percent. Id. In addition, Commerce determined that, since Plaintiff
Huaiyin 30 had “not requested a separate rate” in the administrative review, it was not “entitled
to a separate rate . . . . [Therefore,] all Chinese exporters not specifically named” in the Notice of
Initiation that did not demonstrate an absence of state control “including [Plaintiff Huaiyin 30]
were subject to the” PRC-wide rate. Id. (“Huaiyin Foreign Trade Corporation (30) . . . [is]
subject to the PRC-wide rate of 201.63%.”).
DISCUSSION
Plaintiffs claim that Commerce: (1) violated statutory and regulatory procedures by
failing to provide Plaintiffs with adequate notice of and an adequate opportunity to participate in
the review investigation; and (2) by issuing its Clarification of Message, caused Customs
improperly to increase Plaintiff Huaiyin 30’s cash deposit rate and wrongly apply it retroactively
on Plaintiff Huaiyin 30’s entries of merchandise imported into the United States. In addition,
Plaintiffs complain that payment by the United States Government of antidumping duties to the
domestic industry, pursuant to 19 U.S.C. § 1675c(a), changes the antidumping statute from one
remedial in nature into a statute that imposes a penalty and, therefore, Plaintiffs were entitled to
full due process rights including a review proceeding as provided in the Administrative
Court No. 00-05-00240 Page 12
Procedure Act.10
The United States (“Government”), on behalf of Commerce argues that Commerce: (1)
provided Plaintiffs with adequate notice of and an adequate opportunity to participate in the
review investigation; and (2) properly clarified to Customs that Plaintiff Huaiyin 30 was not
entitled to a cash deposit based on the antidumping duty margin of 91.5 percent. Finally, the
Government claims that payment of antidumping duties to the domestic industry does not
transform the antidumping regime into one that imposes a penalty and, therefore, Plaintiffs were
not entitled to full due process rights including a review proceeding as provided in the
Administrative Procedure Act.
I. Adequate Notice Of and An Adequate Opportunity To Be Heard
In their brief, Plaintiffs argue that they were given neither adequate notice of nor an
adequate opportunity to participate in the administrative review because Commerce “did not
name [Plaintiff] Huaiyin 30 in its Notice of Initiation . . . .” (Pls.’ Mem. Supp. Mot. J. Agency R.
at 29.) In addition, Plaintiffs contend that “despite [Commerce’s] clear instructions to specify
each individual producer or exporter for review, the Petitioner[] did not request that [Plaintiff]
Huaiyin 30 be reviewed.” (Id. at 24.) In support of their argument, Plaintiffs rely on two related
regulations. The first, 19 C.F.R § 351.213, provides in relevant part: “Each year during the
10
See 5 U.S.C. § 551 et seq. (1994); see also GSA, S.R.L., v. United States, 23 CIT
920, 931, 77 F. Supp. 2d 1349, 1359 (1999) (stating that “the APA does not apply to
antidumping administrative proceedings.”); 19 U.S.C. 1677c(b)(providing that an administrative
hearing “shall not be subject to the provisions . . . of title 5 . . . of” the APA).
Court No. 00-05-00240 Page 13
anniversary month of the publication of an antidumping . . . order, a domestic interested party . . .
may request . . . that the Secretary conduct an administrative review . . . of specified individual
exporters or producers covered by an order . . . .” 19 C.F.R § 351.213(b)(1). The second, 19
C.F.R. § 351.221, states that pursuant to subsection 351.213(b)(1): “In an administrative
review . . . the Secretary . . . [w]ill publish the notice of initiation of the review no later than the
last day of the month following the anniversary month . . . .” 19 C.F.R. § 351.221(c)(1)(i). Thus,
Plaintiffs claim that because Commerce “did not include [Plaintiff] Huaiyin 30 in its Notice of
Initiation” by specifically naming it, “neither [Plaintiff] Huaiyin 30 nor the Plaintiff importers . . .
received any real notice of the 1997–98 administrative review.” (Pls.’ Mem. Supp. Mot. J.
Agency R. at 26.)
The Government, on the other hand, argues that “Commerce need not give personal
notice to any party that could be affected by an administrative review” and, therefore, it was “free
to choose a variety of means to give reasonable notice that certain exporter’s goods [were]
subject to an administrative review.” (Def.’s Mem. Opp’n to Mot. J. Agency R. at 13.) As such,
the Government claims that the constructive notice provided by the Notice of Initiation
“adequately advised [Plaintiff Huaiyin] (30) and its importers that they would be subject to the
administrative review” of the antidumping order covering imports of crawfish tail meat from the
PRC. (Id.) In other words, “the statement contained in the Notice of Initiation clearly advised
[Plaintiffs] that if any of the listed exporters did not qualify for a separate rate, all of the
exporters of crawfish tail meat from the PRC would be subject to [the administrative] review.”
(Id. at 14–15.)
Court No. 00-05-00240 Page 14
The court is not convinced of Plaintiffs’ arguments that they were provided with
inadequate notice by the Notice of Initiation. On this matter, Transcom, Inc. v. United States,
182 F.3d 876 (Fed. Cir. 1999) (“Transcom I”) and two later Transcom decisions of this court11
are instructive. As here, Transcom I involved an administrative review of an antidumping order
affecting an exporter from a nonmarket economy country that was not named in a notice of
initiation. The CAFC found the notice of initiation at issue12 to be inadequate because the
importer:
[H]ad no reason to expect that the antidumping duties on its
exporters’ products could be affected by proceedings in which the
exporters were not named as parties. Neither the statute nor
11
See Transcom, Inc. v. United States, 24 CIT __, 121 F. Supp. 2d 690 (Nov. 7,
2000) (“Transcom II”) (finding notice of initiation at issue provided adequate notice); Transcom,
Inc. United States, 24 CIT __, 123 F. Supp. 2d 1372 (Nov. 22, 2000) (finding notice of initiation
at issue failed to provide adequate notice).
12
In Transcom I, the government argued that Commerce’s notice of initiation, which
specifically named certain companies for review, was also sufficient to alert unnamed exporters
of tapered roller bearings to the scope of the administrative review because:
[A]ll exporters in a nonmarket economy country are presumed to
be part of the state-controlled entity . . . . [T]hat if any company
named in the administrative review is found to be part of the state-
controlled entity, the effect of that finding is to bring within the
scope of the review any other exporters from that country that fail
to demonstrate their independence from the state-controlled entity.
According[ly] . . . if the unnamed exporters wish[] to avoid having
the PRC rate applied to their exports, they should . . . voluntarily
participate[] in the review[] and demonstrate[] their independence
from the nonmarket economy entity.
Transcom I, 182 F.3d at 881. The CAFC found, however, that the use of this language
represented a new policy for Commerce to which it did not alert potentially affected parties.
Thus, the new policy, together with the language itself led the CAFC to conclude “that Transcom
had no reason to expect that the antidumping duties on its exporters’ products could be affected
by proceedings in which the exporters were not named as parties. Id.
Court No. 00-05-00240 Page 15
Commerce’s regulations gave any hint that such a procedure would
be used. Moreover, at the time of the administrative reviews at
issue in this case, Commerce had not announced that it would be
following a different practice with respect to unnamed exporters in
administrative reviews of products from nonmarket economy
countries . . . .
Transcom I, 182 F.3d at 881. Thus, the CAFC held, inter alia, that Commerce was required to
“provide some form of notice that the administrative review may . . . increase . . . the
antidumping duty rates applicable to its [unnamed] foreign exporters.” Id. at 884. This being the
case, Plaintiffs would be entitled to the relief they seek, if it were shown that the Notice of
Initiation failed adequately to alert them that their interests might have been affected by the
pending administrative review. Here, the Notice of Initiation reads in relevant part:
If one of the above named companies does not qualify for a
separate rate, all other exporters of freshwater crawfish tail meat
from the People’s Republic of China who have not qualified for a
separate rate are deemed to be covered by this review as part of the
PRC entity of which the named exporter is part.
Notice of Initiation, 63 Fed. Reg. at 58,010. Plaintiffs argue that this notice was inadequate and,
therefore, they “did not request a review investigation” or “participate in the review simply
because they did not know” about the pendency of the administrative review. (Pls.’ Mem. Supp.
Mot. J. Agency R. at 34.)13 Again, Transcom I is instructive. There, the CAFC found it
13
The Government, on the other hand, contends that the language in the Notice of
Initiation “is no less clear than” the language in the notice of initiation at issue in Transcom II
and, therefore, the court should conclude, as the court did in Transcom II, that Plaintiffs had
sufficient “notice that the entries in which [they] had an interest could . . . be affected by the
administrative review . . . .” (Def.’s Mem. Opp’n to Mot. J. Agency R. at 14.) The notice of
initiation at issue in Transcom II was described by the court as follows, “In addition to listing the
one hundred and one companies subject to the review, the ‘Notice of Initiation’ provided that
‘[a]ll other exporters of tapered roller bearings are conditionally covered by this review.’”
Transcom II, 24 CIT at __, 121 F. Supp. 2d at 700. The court found that this language “gave
(continued...)
Court No. 00-05-00240 Page 16
persuasive that the language of the notice of initiation, at issue in that case, had not previously
been used and that, therefore, unnamed exporters had inadequate notice of a change in
Commerce’s policy that put them at risk with respect to their merchandise. The CAFC did
acknowledge that following publication of such notice of initiation Commerce:
[B]egan stating in notices of initiation . . . that all unnamed
exporters . . . from the People’s Republic of China are
conditionally covered by the review or, more explicitly, that if one
of the named companies does not qualify for a separate rate, all
other exporters that have not qualified for a separate rate are
deemed to be covered by the review as part of the single Chinese
entity of which the named exporters are a part.[14]
Transcom I, 182 F.3d at 882. Though the CAFC declined to find that this new language
“satisf[ied] statutory and regulatory notification requirements[,]” it did observe that such
language went “far beyond any notice, constructive or otherwise, given to the unnamed
exporters” in that case. Id.
In addition, the CAFC stated that since Commerce was not “required to give personal
notice to any party that could be affected by an administrative review that its interests may be at
13
(...continued)
Transcom . . . more than sufficient . . . notice that the particular entries in which Transcom had
an interest could possibly be affected by the administrative review.” Id., 24 CIT at __, 121 F.
Supp. 2d at 701 (footnote omitted).
14
Commerce has been using this notice of initiation language in administrative
reviews of antidumping orders covering PRC exporters since August 1, 1997. See, e.g., Action:
Notice of Initiation of Antidumping and Countervailing duty Administrative Reviews and
Request For Revocation In Part, 62 Fed. Reg. 41,339, 41,345 (Aug. 1, 1997). This language is of
the same import as the language used in the Notice of Initiation at issue here, and had been in use
for more than a year prior to the Notice of Initiation being published. Thus, there is no serious
argument that the language used in the Notice of Initiation represented a change in policy.
Court No. 00-05-00240 Page 17
stake[,]” id. (citation omitted), constructive notice by publication was adequate.15 Moreover, the
CAFC did not find that a party must be specifically named for a notice of initiation to be
adequate. Rather, the CAFC concluded that 19 U.S.C. § 1675(a)16 and 19 C.F.R. §§
351.213(b)(1) and 351.221(c)(1), when taken together, provide “that any reasonably informed
party should be able to determine, from the published notice of initiation read in light of
announced Commerce policy, whether particular entries in which it has an interest may be
affected by the administrative review.” See Transom I, 182 F.3d at 882–83. Thus, the CAFC did
not find that only those specific parties named by domestic producers could be affected by the
proceedings announced in a notice of initiation, or that such notice could only be adequate as to
named parties rather than to a class. Id. at 882–83.
15
See also Transcom, II, 24 CIT at __, n.10, 121 F. Supp. 2d at 701, n.10
(“Constructive notice is information or knowledge of a fact imputed by law to a person . . .
because he could have discovered the fact by proper diligence, and his situation was such as to
cast upon him the duty of inquiring into it. . . .” (citation omitted)).
16
Subsection 1675(a) of title 19 provides, inter alia:
At least once during each 12–month period beginning on the
anniversary of the date of publication of . . . an antidumping duty
order . . . the administrating authority, if a request for such a review
has been received and after publication of notice of such review in
the Federal Register, shall . . .
(B) review, and determine . . . the amount of any
antidumping duty . . .
and shall publish in the Federal Register the results of such review,
together with notice of any duty to be assessed, estimated duty to
be deposited, or investigation to be resumed.
19 U.S.C. § 1675(a)(1)(B).
Court No. 00-05-00240 Page 18
Here, the notice given to Plaintiffs satisfies the CAFC’s criteria. First, Plaintiff Huaiyin
30 was a “reasonably informed” party by virtue of its being a PRC producer of crawfish tail meat
that had previously: (1) tried to participate in the original crawfish tail meat antidumping
investigation and seek a company-specific antidumping duty margin therein; and (2) taken
advantage of HFTC’s cash deposit, which was based on HFTC’s separate company-specific
antidumping duty margin. As such, Plaintiff Huaiyin 30, though not specifically named, was
well situated to determine from the Notice of Initiation that its 1997–98 crawfish tail meat entries
could be affected by the administrative review. Second, the domestic importer Plaintiffs can also
be found to be “reasonably informed” parties to whom the Notice of Initiation provided adequate
notice. These Plaintiffs were fully aware that an entity with “Huaiyin” in its name was supplying
them with crawfish tail meat. They received a copy of the antidumping order which, together
with Plaintiff Huaiyin 30’s representations, apparently convinced them that they were being
supplied by the “Huaiyin” entity that was named in the antidumping order as the one entitled to
take advantage of the cash deposit based on the company-specific antidumping duty margin of
91.5 percent. As this was the same entity that was specifically named in the Notice of
Initiation,17 Plaintiffs cannot now be heard to claim that, at the time the Notice of Initiation was
published (October 29, 1998 nearly a year prior to the issuance of the Clarification of Message),
they did not believe that the “Huaiyin” entity named in the Notice of Initiation was their supplier.
17
See LTFV Final Determination, 62 Fed. Reg. at 48,219 (“The ad valorem
weighted-average dumping margins are as follows . . . Huaiyin Foreign Trade Corp. . . . 91.50”
percent.); see also Notice of Initiation, 63 Fed. Reg. at 58,009–10 (“The Department of
Commerce has received requests to conduct administrative reviews of various antidumping . . .
orders and findings with September anniversary dates. In accordance with the Department’s
regulations, we are initiating review[]” of the following company: “Huaiyin Foreign Trade
Corp.”).
Court No. 00-05-00240 Page 19
Thus, the domestic importer Plaintiffs had reason to believe that the crawfish tail meat entries in
which they had an interest could be affected by the administrative review.
Because they received adequate notice, the court is necessarily unpersuaded by Plaintiffs’
claim that they could not have participated in the administrative review until after the Prelim.
Results were published. As noted above, Plaintiff Huaiyin 30 is a crawfish tail meat exporter
that had reason to expect that, at the time the Notice of Initiation was published, its 1997–98
crawfish tail meat entries could be affected by the administrative review. Moreover, as
Commerce specifically named the “Huaiyin” entity in the Notice of Initiation that the domestic
importer Plaintiffs believed to be their crawfish tail meat supplier, they cannot claim that the
Notice of Initiation failed adequately to alert them of the pendency of the administrative review.
As to the time frame during which Plaintiffs were given an opportunity to participate in the
review investigation, the Notice of Initiation quite clearly stated that, “[i]f one of the
[specifically] named companies does not qualify for a separate rate, all other exporters . . . who
have not qualified for a separate rate are deemed to be covered by this review . . . .” See Notice
of Initiation, 63 Fed. Reg. at 58,010. Thus, Plaintiffs were given a choice, at the time the Notice
of Initiation was published, to either participate in the review by seeking a separate company-
specific antidumping duty margin, or risk being assigned the PRC-wide rate should any named
company fail to qualify for a separate rate. By choosing not to participate in the review
investigation, Plaintiffs and any other similarly situated entities, risked the consequences of their
inaction. The court, therefore, finds that the Notice of Initiation gave adequate notice to
Plaintiffs of the pendency of the administrative review, and that Plaintiffs had an adequate
Court No. 00-05-00240 Page 20
opportunity to participate in such review.
II. Commerce’s Clarification of Message To Customs
The next question presented is whether Commerce properly clarified to Customs which
PRC exporter was entitled to take advantage of cash deposits based on the antidumping duty
margin of 91.5 percent. Plaintiffs do not dispute Commerce’s authority to apply a presumption
of state control and assess a PRC-wide antidumping duty margin where a PRC exporter fails to
demonstrate an absence of state control. Rather, Plaintiffs argue that Commerce’s Clarification
of Message to Customs—that only the entity known as HFTC or Huaiyin 5 was entitled to the
lower cash deposit based on the antidumping duty margin of 91.5 percent—was improper,
because Plaintiffs relied “in good faith upon [Commerce]’s mistake” of allowing Customs to
assign a cash deposit to Plaintiff Huaiyin 30’s entries of merchandise based on the lower
antidumping duty margin of 91.5 percent. Plaintiffs, further, argue that Commerce “should not
be . . . allowed to gain a windfall as a direct result of its mistake by applying retroactive duties”
to Plaintiff Huaiyin 30’s 1997–98 crawfish tail meat entries. (Pls.’ Mem. Supp. Mot. J. Agency
R. at 44.)
The Government, on the other hand, argues that “Commerce did not make a mistake.”
The Government contends that “[d]uring the . . . investigation [leading to the LTFV Final
Determination], Commerce determined that the HFTC entity that participated . . . and responded
to Commerce’s requests for information was entitled to a separate rate of 91.5 percent ad
valorem,” and, therefore, “[t]he clarification merely stated HFTC’s address and the two other
Court No. 00-05-00240 Page 21
names under which it was known.”18 (Def.’s Mem. Opp’n to Mot. J. Agency R. at 24.) In
addition, the Government argues that, since HFTC “advised Commerce for the first time on
August 31, 1999 that its official name was” HFTC, Commerce, therefore, “did not make a
mistake in assigning the 91.5 percent rate in the” LTFV Final Determination to HFTC “because
that was how the HFTC entity that was investigated represented itself during the investigation.”
(Id. at 25–26 (citations omitted.) Finally, the Government contends that “Commerce[] had no
reason to refer to” Plaintiff Huaiyin 30 in the LTFV Final Determination “because Commerce
was not even aware of the existence of [Plaintiff Huaiyin 30] during the investigation.” (Id. at
26.)
Plaintiffs’ argument that Commerce’s September 1999 Clarification of Message had
improper results is unconvincing. Commerce’s Clarification of Message merely alerted Customs
as to which PRC crawfish tail meat exporter was entitled to avail itself of cash deposits based on
the separate company-specific antidumping duty margin. That this exporter was HFTC and not
Plaintiff Huaiyin 30 in no way means that the United States Treasury gained a “windfall.” First,
the local PRC government’s decision to allow Plaintiff Huaiyin 30 to use HFTC’s separate
company-specific antidumping duty margin of 91.5 percent was in no way authorized by
Commerce. Second, Plaintiff Huaiyin 30 was fully aware that it had been assigned the PRC-
wide antidumping duty margin but, nonetheless, participated in taking advantage of cash deposits
based on HFTC’s lower rate when exporting its product to the United States. As Plaintiff
Huaiyin 30 did not take part in either the original investigation or the administrative review, it
18
See footnote 4, supra.
Court No. 00-05-00240 Page 22
cannot now claim any entitlement to cash deposits based on a company-specific antidumping
duty margin. With respect to the domestic importer Plaintiffs, their reliance on their inadequate
investigation and on Plaintiff Huaiyin 30’s representations cannot be attributed to Commerce.
Commerce can hardly be held accountable for the similarity among exporters’ names and a
supplier’s deceptive business practices. Commerce had no reason to know that Plaintiff Huaiyin
30 existed prior to Custom’s inquiry in September of 1999 and, thus, no reason to make a
distinction among the “Huaiyin” named entities until such time. Thus, the claims of both
Plaintiff Huaiyin 30, and the domestic importer Plaintiffs of “good faith” reliance or the history
of Customs applying HFTC’s cash deposit rate to Plaintiff Huaiyin 30’s merchandise are not
credible.
III. Continued Dumping and Subsidy Offset Act of 2000
Plaintiffs’ final argument is that the Continued Dumping and Subsidy Offset Act of 2000,
19 U.S.C. § 1675c (2000) (“Byrd Amendment”), transforms the antidumping statute19 from being
remedial in nature into a law that imposes penalties. (Pls.’ Mem. Supp. Mot. J. Agency R. at 49.)
Prior to enactment of the Byrd Amendment, duties collected pursuant to antidumping orders
were deposited with the Treasury for general purposes. By enactment of the Byrd Amendment,
however, Congress modified the antidumping statute so that “[d]uties assessed pursuant to . . . an
antidumping order . . . shall be distributed on an annual basis . . . to the affected domestic
producers . . . .” 19 U.S.C. § 1675c(a). In other words, as a result of the Byrd Amendment, these
duties are to be distributed to the firms that petitioned for relief, and to those firms that supported
19
Section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (1994).
Court No. 00-05-00240 Page 23
the petition. See 19 U.S.C. § 1675c(b)(1)(A), (B).
It is well settled that the antidumping statute, as it existed prior to enactment of the Byrd
Amendment, did not impose a penalty. An early decision of the United States Court of Customs
and Patent Appeals reviewed the nature of the antidumping statute and found that:
[W]e cannot escape the conviction that the expressed purpose of
Congress, in the Antidumping Act of 1921, was to impose not a
penalty, but an amount of duty sufficient to equalize competitive
conditions between the exporter and American industries
affected . . . . It follows that the Antidumping Act of 1921 is not
repugnant to the provisions of said Amendment V [to the U.S.
Constitution], as denying to the importer due process of law . . . .
C.J. Tower & Sons v. United States, 21 C.C.P.A. 417, 427–28, 71 F.2d 438, 445–46 (1934).
Since C.J. Tower courts have continued to find that, “[d]umping duties are not penal in nature,
but are ‘additional duties’ to equalize competitive conditions between the exporter and [affected
U.S. industries].” See Union Camp Corp. v. United States, 22 CIT 267, 278, 8 F. Supp. 2d 842,
852 (1998) (citing Imbert Imp., Inc. v. United States, 67 Cust. Ct. 569, 576 n.10, 331 F. Supp.
1400, 1406 n.10 (1971), aff’d, 60 C.C.P.A. 123, 475 F.2d 1189 (1973)). Moreover, because the
imposition of these duties was “not penal, retaliatory or compensatory,” Chr. Bjelland Seafoods
A/C v. United States, 16 CIT 945, 953 (1992) (citation omitted), the statute was solely remedial.
Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103–04 (Fed. Cir. 1990).
Plaintiffs argue that the changes in the antidumping statute effected by the Byrd
Amendment nullify the remedial nature of the statute and impose a penalty entitling Plaintiffs to
“full due process rights, including a hearing before a neutral judge” because the Fifth
Court No. 00-05-00240 Page 24
Amendment demands due process where there is a deprivation of “life, liberty or property.”
(Pls.’ Mem. Supp. Mot. J. Agency R. at 50 (citation omitted)); see 5 U.S.C. § 551 et seq. (1994).
The Government, on the other hand, contends that the “provision for the distribution . . . of
antidumping duties that have been collected to the affected domestic producers does not change
the purpose and remedial aspect of the antidumping law into a punitive one” because: (1)
“importers continue to be liable for antidumping duties equal to the amount by which the normal
value exceeds the export or constructed export price for the merchandise”; and (2) the
“amendment does not make any changes to existing procedures” regarding how Commerce
determines an importer’s antidumping duty liability. (Def.’s Mem. Opp’n to Mot. J. Agency R.
at 20–21 (citations omitted).) Finally, Plaintiffs counter that the Government’s position that
there has been no change in the magnitude of the duties collected is irrelevant because “a change
in the remedy is a change to . . . the purpose of the law.” (Pls.’ Reply Mem. Supp. Mot. J.
Agency R. at 14.) The court agrees with the Government.
First, the changes made by the Byrd Amendment to the antidumping statute do not
impose upon foreign exporters the types of burdens traditionally found to constitute civil or
criminal penalties and, thus, the consequent necessity of a hearing pursuant to the Fifth
Amendment. In general, “‘A penalty is a sum of money of which the law exacts payment by way
of punishment for the doing of some act that is prohibited, or omitting to do some act that is
required to be done.’” Brown v. Cummins Distilleries Corp., 56 F. Supp. 941, 942 (W.D. Ken.
1944) (citation omitted). As such, the amount of a penalty generally bears no relation to the cost
of remediation of any harm caused by the performance or failure of performance of the act.
Court No. 00-05-00240 Page 25
United States v. DelBellas, 23 CIT 600, 601 (1999)20 (noting that in the context of a civil penalty
proceeding under 19 U.S.C. § 1592 “there is nothing in the language of [the statute] indicating
that the amount of the penalty is in any way related to costs incurred by the government.”); see
also Cummins Distilleries Corp., 56 F. Supp. at 942 (“In a proceeding of this nature the
[Government] has suffered no damages, and the action is not for the purpose of compensation.”).
Another indicator of whether a statute provides for a penalty is the magnitude of the burden
imposed. Indeed, courts have found that a duty may constitute a penalty where it is “enormously
in excess of the greatest amount of regular duty ever imposed upon an article of the same
nature . . . .” See Helwig v. United States, 188 U.S. 605, 611–13 (1902) (finding that where re-
appraisement of imported merchandise resulted in an increased duty of $354.00, and the further
“sum” imposed by statute was $9,067.68, such further sum was a penalty because “the amount
imposed was so large in proportion to the value of the merchandise imported, as to show beyond
doubt that it was a sum imposed not, in fact, as a duty upon an imported article, but as a penalty
and nothing else.”). Here, the facts do not support a finding of a penalty. First, the amount of the
antidumping duty assessed is directly related to the remedial goal of equalizing “competitive
conditions[,]” C.J. Tower & Sons, 21 C.C.P.A. at 427, 71 F.2d at 445, and this amount is
determined in all respects as it was prior to the adoption of the Byrd Amendment. Second, the
20
DelBellas is one of a line of cases of this court discussing the magnitude of an
assessed amount and its relation to actual damage sustained. These cases examined civil
penalties to determine whether such penalties constituted “double jeopardy.” See, e.g., United
States v. Danzler Lumber & Exp. Corp., 16 CIT 1050, 1056, 810 F. Supp. 1277, 1283 (1992)
(discussing amount of recovery for violations may be “so excessive as to inflict punishment . . .
.”), and United States v. Gordon, 10 CIT 292, 297, 634 F. Supp. 409, 415 (1986) (discussing
magnitude of amount assessed as factor in determining remedial effect of statute; and considering
relation of damage sustained by society to magnitude of amount assessed, as factor in
determining whether statute was remedial or constituted punishment).
Court No. 00-05-00240 Page 26
magnitude of the duty cannot be said to be so large as to necessarily constitute a penalty, since
the amount assessed following the enactment of the Byrd Amendment is identical to the amount
assessed prior to the amendment’s enactment.
Next, Congress itself may determine that a provision not be regarded as a penalty. See
Helwig, 188 U.S. at 613 (“If it clearly appears that it is the will of Congress that the provision
shall not be regarded as a penalty, the Court must be governed by that will.”); see also United
States v. Reorganized CFSI Fabricators of Utah, Inc., 518 U.S. 213, 221 n.5 (1996) (citing
Helwig). This holds true in situations where Congress determines how funds are to be dispensed.
See Helwig, 188 U.S. at 613 (“Congress may enact that such a provision should not be
considered as a penalty or in the nature of one . . . with reference to the distribution of moneys
thus paid . . . .”). In enacting the changes contained in the Byrd Amendment, Congress
determined that the funds collected were to be distributed to domestic producers. In support of
its determination, Congress made certain findings21 including: “continued dumping . . . of
21
These findings were as follows:
(1) Consistent with the rights of the United States under the World
Trade Organization, injurious dumping is to be condemned and
actionable subsidies which cause injury to domestic industries
must be effectively neutralized.
(2) United States unfair trade laws have as their purpose the
restoration of conditions of fair trade so that jobs and investment
that should be in the United States are not lost through the false
market signals.
(3) The continued dumping or subsidization of imported products
after the issuance of antidumping orders or findings or
(continued...)
Court No. 00-05-00240 Page 27
imported products after the issuance of antidumping orders . . . can frustrate the remedial purpose
of the laws by preventing market prices from returning to fair levels” and that “United States
trade laws should be strengthened to see that the remedial purpose of those laws is achieved.”
Agriculture, Rural Development, Food and Drug Administration and Related Agencies
Appropriations Act of 2000, 106 Pub. L. 387, Title X [Continued Dumping and Subsidy Offset]
§ 1002 (3), (5), 114 Stat. 1549 (2000), as enacted. In order to effect this purpose, Congress chose
to distribute the collected duties to affected domestic producers in hopes that they “will [not] be
reluctant to reinvest or rehire and may be [able] to maintain pension and health care benefits that
conditions of fair trade would permit. Similarly, small businesses and American farmers and
ranchers may be [able] to pay down accumulated debt, to obtain working capital, or to otherwise
remain viable.”22 Id. at (4). These findings demonstrate that Congress sought to change the
21
(...continued)
countervailing duty orders can frustrate the remedial purpose of the
laws by preventing market prices from returning to fair levels.
(4) Where dumping or subsidization continues, domestic producers
will be reluctant to reinvest or rehire and may be unable to
maintain pension and health care benefits that conditions of fair
trade would permit. Similarly, small businesses and American
farmers and ranchers may be unable to pay down accumulated
debt, to obtain working capital, or to otherwise remain viable.
(5) United States trade laws should be strengthened to see that the
remedial purpose of those laws is achieved.
H.R. 4461, 106th Cong. (2000), reprinted in 2000 U.S.C.C.A.N . 1549, 1549A–72, 73.
22
With or without the Byrd Amendment, the duties imposed by the antidumping
statute are not compensatory in nature because, rather than providing payment for past injury,
they are prospective in nature, 19 U.S.C. § 1675c(b)(4), and used to “equalize competitive
conditions . . . .” C.J. Tower & Sons, 21 C.C.P.A. at 427, 71 F.2d at 445. The Byrd Amendment
(continued...)
Court No. 00-05-00240 Page 28
antidumping law in order to strengthen its remedial purpose. Thus, rather than imposing a
penalty on foreign exporters, Congress’ enacted purpose was to “strengthen[] . . . the remedial
purpose of” the antidumping statute. Id. at (5). Congress having clearly expressed its remedial
purpose, this court is bound by its will.
Finally, while courts have found that the antidumping statute, as it existed prior to the
enactment of the Byrd Amendment, was remedial in nature and, thus, did not constitute a
penalty, these courts did not find that the duties imposed by that statute were the exclusive way in
which this remediation could be accomplished. See generally C.J. Tower & Sons, 21 C.C.P.A. at
417, 71 F.2d at 438; Union Camp Corp., 22 CIT at 267, 8 F. Supp. 2d at 842; Chr. Bjelland
Seafoods, 16 CIT at 945; Chaparral Steel Co., 901 F.2d at 1097. Prior to the enactment of the
22
(...continued)
does not change the prospective nature of these duties, nor does it provide that such funds should
be used to compensate affected domestic firms for past injuries. Rather, the funds obtained by
these duties are distributed to affected domestic firms for qualifying expenditures:
The term “qualifying expenditure” means an expenditure incurred
after the issuance of the antidumping duty finding or order or
countervailing duty order in any of the following categories:
(A) Manufacturing facilities.
(B) Equipment.
(C) Research and development.
(D) Personnel training.
(E) Acquisition of technology.
(F) Health care benefits to employees paid for by the employer.
(G) Pension benefits to employees paid for by the employer.
(H) Environmental equipment, training, or technology.
(I) Acquisition of raw materials and other inputs.
(J) Working capital or other funds needed to maintain production.
19 U.S.C. § 1675c(b)(4).
Court No. 00-05-00240 Page 29
Byrd Amendment, any duties collected were deposited with the Treasury. Now, these same
duties are to be collected and distributed to parties affected by dumping. At its base, Plaintiffs
argument is that this amended statutory scheme is not remedial because it will not “‘equalize
competitive conditions between the exporter and American Industries affected . . . .’” (Pls.’
Mem. Supp. Mot. J. Agency R. at 49 (citing C.J. Tower).) Congress, however, has concluded
otherwise. The wisdom of the manner in which Congress chooses to achieve its “remedial
purpose” to “equalize competitive conditions,” is not a matter of inquiry for this court. See
Hampton, Jr. Co. v. United States, 14 C.C.P.A. 350, 366 (1926) (“Whether the particular statute
before us is wise or unwise is not for our consideration. This is a political question, with which
courts will not deal. The cure for an unwise and injudicious exercise of its constitutional powers
by Congress lies with the people, from whom its members derive their commissions.” (citing
Springer v. United States, 102 U.S. 586 (1880); Kuttroff, Pickhardt & Co. v. United States, 12
Ct. Cust. App. 299 (1924); McCray v. United States, 195 U.S. 27 (1904))).
CONCLUSION
For the reasons set forth above, the court concludes that Commerce provided Plaintiffs
with adequate notice of the pendency of the administrative review and an adequate opportunity to
participate in such review; that Commerce properly clarified to Customs that Plaintiff Huaiyin 30
was not entitled to cash deposits based on antidumping duty margin of 91.5 percent; and that
payment of antidumping duties to the domestic industry in accordance with the Byrd Amendment
does not transform the antidumping regime into one that imposes a penalty. Thus, the court
denies Plaintiffs’ motion for judgment upon the agency record and Commere’s final
Court No. 00-05-00240 Page 30
determination is sustained. Judgment is entered accordingly.
_____________________________
Richard K. Eaton
Dated: April 30, 2002
New York, New York
Huaiyin Foreign Trade Corp. (30) v. United States Department of Commerce
Court: United States Court of International Trade
Date filed: 2002-04-30
Citations: 201 F. Supp. 2d 1351, 26 Ct. Int'l Trade 494
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