Slip-Op. 09-63
UNITED STATES COURT OF INTERNATIONAL TRADE
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UNIROYAL MARINE EXPORTS :
LIMITED, :
Plaintiff, :
:
:
v. : Before: Pogue, Judge
: Consol. Ct. No. 08-00241
:
UNITED STATES, :
:
Defendant, :
:
and :
:
AD HOC SHRIMP TRADE ACTION :
COMMITTEE, :
Defendant-Intervenor. :
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[Plaintiff’s motion for judgment on the agency record denied;
judgment entered for Defendant.]
Garvey Schubert Barer (Lizabeth R. Levinson, Ronald M.
Wisla)for Uniroyal Marine Exports Limited.
Tony West, Assistant Attorney General, Michael F. Hertz,
Deputy Assistant Attorney General; Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, Stephen C.
Tosini, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice; Mark B. Lehnardt, of Counsel.
Picard, Kentz & Rowe, LLP (Nathaniel Maandig Rickard, Andrew
W. Kentz) for Defendant-Intervenor Ad Hoc Shrimp Trade Action
Committee.
Decided: June 24, 2009
POGUE, Judge: In this action, Plaintiff Uniroyal Marine
Consol. Court No. 08-00241 2
Exports, Ltd. (“Uniroyal”) seeks review of the Department of
Commerce’s (“Commerce” or the ”Department”) decision to reject
factual information that Uniroyal submitted -- after Commerce’s
regulatory deadline -- in the second administrative review of the
antidumping duty order on Certain Frozen Warmwater Shrimp from
India, 73 Fed. Reg. 40492 (July 15, 2008). Uniroyal’s challenge to
Commerce’s decision is currently before the court in Uniroyal’s
motion for judgment on the agency record pursuant to USCIT Rule
56.2.
The court has jurisdiction over Uniroyal’s request pursuant to
Section 516a(a)(2)(B)(iii) of the Tariff Act of 1930, as amended,
19 U.S.C. §1516a(a)(2)(B)(iii)(2006)1 and 28 U.S.C. §1581(c)(2000).
For the reasons set forth below, Plaintiff’s motion is denied.
Background
Uniroyal is an exporter that is subject to the antidumping
duty order on warm-water shrimp from India. In its administration
of that antidumping duty order, Commerce -- at the request of the
Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee2 --
initiated the administrative review that Uniroyal seeks to
1
Further citations to the Tariff Act of 1930 are to the
relevant provisions of Title 19 of the U.S. Code, 2006 edition.
2
The Defendant-Intervenor was the petitioning party in the
underlying antidumping duty investigation.
Consol. Court No. 08-00241 3
challenge here.3 See Certain Frozen Warmwater Shrimp From Brazil,
Ecuador, India, and Thailand, 72 Fed. Reg. 17,100 (Dep’t of
Commerce April 6, 2007).
The initial notice of the challenged administrative review
informed all parties for whom a review was requested, including
Uniroyal, that they were required to respond to a quantity and
value (“Q&V”) questionnaire posted on the Department’s web page.4
Uniroyal maintains that it did not have knowledge of the Q&V
questionnaire posted on the department’s web site. In any case,
Commerce did not receive a response from Uniroyal to the initial
request.
After Uniroyal failed to reply to the first request, Commerce
sent a second request, this time via Federal Express, on May 4
2007, explaining that it had not received a reply to its original
request and explaining that if Uniroyal did not reply, Uniroyal’s
antidumping duty margin could be determined based on adverse facts
available. In this May 4 request, the Department stated that
either the reply must be received by May 25, 2007, or it must be
sent via international courier service with a postmark no later
than May 25, 2007. Also in this request, Commerce suggested that
Uniroyal obtain proof of mailing so as to be able to substantiate
3
This review covered U.S. entries of goods exported from
India from February 1, 2006 to January 31, 2007.
4
Responses to the questionnaire were due by April 23, 2007.
Consol. Court No. 08-00241 4
mailing if the submission was not received on time. Uniroyal
admits receiving this notice and claims to have mailed its response
on or around May 21, 2007, by regular mail, in a hand-addressed
envelope. Uniroyal’s response was never received by the
Department.
The Department sent one further letter to Uniroyal, again via
Federal Express, on June 5, 2007, ten days after the second
deadline had passed. The June 5 letter stated that Commerce had
not yet received Uniroyal’s response, gave Uniroyal one final
chance to reply, and set a new deadline of June 19, 2007. The June
5 letter, like the letter of May 5, again instructed Uniroyal to
obtain proof of mailing; it also provided contact information for
the Department. Uniroyal admits receiving this letter on or about
June 9, 2007, but did not reply.
When Commerce published preliminary results of its
administrative review, it assigned to Uniroyal (and 125 other
companies that also did not reply) an antidumping duty rate based
on adverse facts available. See Certain Frozen Warmwater Shrimp
from India, 73 Fed. Reg. 12,103 (Dep’t of Commerce Mar. 6, 2008).
After receiving these preliminary results, Uniroyal, on April 8,
2008, filed a case brief with the Department in which Uniroyal
claimed that it had mailed a reply to the notice of May 4, and that
it therefore should not be subject to an adverse facts available
rate. Commerce rejected these claims as based on new, untimely
Consol. Court No. 08-00241 5
filed, factual information. Uniroyal was then allowed to re-file
its brief with the new factual information removed.
When the Department published its final results, on July 15,
2008, Uniroyal was assigned a margin of 110.9%, based on adverse
facts available. See, Certain Frozen Warmwater Shrimp from India,
73 Fed. Reg. 40,492 (July 15, 2008).
Standard of Review
Under the applicable statutory standard of review, the court
“must sustain ‘any determination, finding or conclusion found’ by
Commerce unless it is ‘unsupported by substantial evidence on the
record, or otherwise not in accordance with the law.’” Fujitsu Gen.
Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996) (quoting
19 U.S.C. §1516a(b)(1)(B)(i)). In applying this standard, the
court gives Commerce’s interpretation of its regulations
substantial deference, unless such interpretation is plainly
erroneous or inconsistent with the regulation in question.
Torrington Co. v. United States, 156 F.3d 1361, 1363-64 (Fed. Cir.
1998) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994)). In reviewing whether Commerce’s actions are unsupported
by substantial evidence, the court assesses whether the agency
action is reasonable given the record as a whole. See Nippon Steel
Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006).
Consol. Court No. 08-00241 6
Discussion
The agency determination challenged here states, in relevant
part:
We are unable to grant Uniroyal’s request that the
Department find that it mailed its Q&V questionnaire
because no evidence exists on the record of this review
to support such a conclusion. Further, the Department
explicitly stated in both the notice of initiation of
this administrative review and the Q&V questionnaire
issued to each producer/exporter involved in the
proceeding that it was necessary for all companies to
respond to the Q&V questionnaire. . . . .
In addition, the cover letter attached to the May 4,
2007, Q&V questionnaire issued specifically to Uniroyal
stated: [“]On April 2, 2007, the Department posted on its
website (http://ia.ita.doc.gov/ia-highlights-and-
news.html) a quantity and value questionnaire in this
administrative review, with a due date of April 23, 2007.
However, we did not receive a response from your company.
Therefore, we are sending you a copy of the questionnaire
by international document courier, and we are affording
your company one final opportunity to respond to this
data request. Please note that failure to respond to this
questionnaire may result in the Department’s deeming your
company uncooperative in this administrative review. In
such case, the Department may assign your company an
antidumping duty margin based on adverse inferences, in
accordance with section 776(b) of the Tariff Act of 1930,
as amended (the Act). . . . Your response to this
quantity and value questionnaire should be either
received at the Department no later than May 25, 2007, or
sent by an international courier service with a postmark
date no later than May 25, 2007. . . .[”]
Uniroyal did not claim that it failed to receive the
Q&V questionnaires issued to it, nor did the company
contact the Department either to clarify how it should
respond or to determine if the Department had received
its Q&V questionnaire response. Therefore, we find that
Uniroyal did not act to the best of its ability because:
1) the Department specifically informed the company that
it was required to submit a response; 2) Uniroyal had the
information in its possession which would have permitted
it to respond, and yet it failed to provide this
information to the Department by the deadline; 3) the
Consol. Court No. 08-00241 7
Initiation Notice and the Q&V questionnaire provided
contact information for Department officials in the event
that clarification or additional explanation was
required; and 4) despite the notice and opportunity, the
Department did not receive a Q&V response from Uniroyal
at any point in time during this administrative review.
Certain Frozen Warmwater Shrimp from India, 73 Fed. Reg. 40492
(Dept. Of Commerce July 15, 2008), “Issues and Decision
Memorandum”, 73 ITADOC 40492,A-533-840, ARP 06-07 , at 18-20 (July
7, 2008)
As noted above, Uniroyal pursues its claim challenging the
Department’s determination by a USCIT Rule 56.2 motion for judgment
on the agency record. That rule requires that the party seeking
such a judgment state, “how the [challenged agency] determination
may be unwarranted by the facts.” USCIT R. 56.2(c)(1).
In its statement of facts required by Rule 56.2(c)(1),
Plaintiff concedes that, on May 4, 2007, the Department sent
Uniroyal, by international courier, a Q&V questionnaire, and that
Uniroyal received the questionnaire on or about May 9, 2007. In
addition, Plaintiff, concedes that “Uniroyal understood the
requirement to complete and file the response to the Q&V
questionnaire because it had participated in the first
administrative review.” Pl.’s Br. in Supp., p.4.
Without any factual demonstration, however, Plaintiff makes
the assertion that Uniroyal “completed the Q&V questionnaire.” Id.
Plaintiff also fails to acknowledge the following relevant facts
Consol. Court No. 08-00241 8
from the administrative record: (1) Commerce’s May 4 notice
informed Plaintiff that Commerce “may require [] proof [of mailing]
in the event that [Uniroyal’s] submission is not received on time.”
PD 63 at 2. (2) After the deadline for submission of the Q&V
questionnaire, Commerce sent Uniroyal another letter via
international courier, providing another and final opportunity to
respond, PD 126 at 1, which Uniroyal received on or about June 9,
2007. PD 361 at 6.
Rather, Uniroyal claims -- again without any evidentiary
demonstration -- that it “learned for the first time that their
[Q&V] response was not received by the Department upon receiving a
copy of the preliminary results” of the review.5 Pl.’s Br. in
Supp., p.4. Rather, Uniroyal relies on its “case brief,” as
initially filed in the administrative proceeding, A.R. Pub. 345,
where it asserted -- without any evidentiary demonstration -- that
it did in fact respond to the Q&V questionnaire. Pl.’s Br. in
Supp., p.5.
For its part, Commerce, relying on 19 C.F.R. §351.302(d)6,
5
Accepting this claim as true, it is at least incomplete.
As noted, Uniroyal received the third notice letter from the
Department well after it claims to have mailed its reply.
Plaintiff now claims, without supporting affidavits or other
evidence, that it assumed that its reply had simply crossed in
the mail with the Department’s June 5 letter.
6
In relevant part, that regulation provides:
Return of untimely filed or unsolicited material.
Consol. Court No. 08-00241 9
refused to accept Plaintiff’s unsupported factual assertions
presented in its case brief.
On this record, therefore, it is uncontested that the
Department issued three notices that Uniroyal was required to
return a Q&V questionnaire, and that Uniroyal received at least two
of these notices, each of which included specific instruction to
obtain proof of mailing, instruction on how to obtain help with the
form, and notice of the consequences of not complying with the
questionnaire in a timely manner. Nonetheless, no completed
questionnaire was returned.
Considered in light of this record, as a whole, Commerce’s
action, in applying its regulatory time limits to this proceeding,
is reasonable. Under the statutory substantial evidence standard
of review, it must therefore be sustained.
Moreover, this Court has consistently sustained determinations
by Commerce rejecting new factual information submitted after the
applicable deadline, see, e.g., Yantai Timken Co., Ltd. v. United
States, 31 CIT ___, 521 F. Supp. 2d 1356, 1371 (2007); Reiner
Braech GmbH & Co. KG v. United States, 26 CIT 549, 559, 206 F.
(1) Unless the Secretary extends a time limit under
paragraph (b) of this section, the Secretary will not
consider or retain in the official record of the
proceeding: (i) Untimely filed factual information,
written argument, or other material that the Secretary
returns to the submitter . . . .
19 C.F.R. §351.302(d)
Consol. Court No. 08-00241 10
Supp. 2d 1323, 1334 (2002); Bergerac, N.C. v. United States, 24 CIT
525, 532, 102 F. Supp. 2d 497, 503-04 (2000). Following this
precedent, the court must sustain Commerce’s determination in this
case as well, absent sufficient reason to do otherwise. As the
court noted, “[f]or Commerce to fulfill its mandate to administer
the antidumping duty law, including its obligation to calculate
accurate dumping margins, it must be permitted to enforce the time
frame provided in its regulations.” Yantai Timken, 521 F. Supp. 2d
at 1371.
Uniroyal argues that Commerce’s rejection of its new factual
assertions, contained in its case brief, is an abuse of discretion.
But there is no evidence in the record, such as documentary proof
of mailing or affidavits from officials at Uniroyal, attesting that
Uniroyal in fact replied to the May 4 notice from Commerce. Absent
such evidence, there is simply no basis to claim that Commerce
abused its discretion in refusing to accept untimely filed factual
information. Indeed, abuse of discretion review, which generally
parallels arbitrariness review, see 3 Admin. Law & Prac. §10.6 (2d
ed.), is less demanding than substantial evidence review. 3 Admin.
Law & Prac. §10.4. Consequently, our conclusion that Commerce’s
determination is based on a reasonable reading of the record
precludes a finding of abuse of discretion here.
Furthermore, the Department’s prior decisions, upon which
Uniroyal relies, cannot support its claim. Unlike the present
Consol. Court No. 08-00241 11
case, in two of the cited proceedings, Certain Frozen Warmwater
Shrimp from India, 72 Fed. Reg. 52055 at Dec. Mem., cmt. 10 and
Certain Steel Concrete Reinforcing Bars From Turkey, 71 Fed. Reg.
65,082 (Dep’t of Commerce Nov. 7 2006), at Dec. Mem., cmt. 22, the
parties to the proceedings provided the Department with sufficient
verifiable evidence to support the determination that they had not
received the questionnaires, and thus were uninformed of their duty
to respond.
The other cases cited by Uniroyal also do not support its
claims. In those cases the submitted factual material was either
timely filed or it was information that Customs had tried, but
failed, to get from other sources. See Certain Preserved Mushrooms
From the People’s Republic of China, 69 Fed. Reg. 54,635 (Dep’t of
Commerce Sept. 9, 2004), at Dec. Mem. at cmt. 7 and Freshwater
Crawfish Tail Meat From the People’s Republic of China, 73 Fed.
Reg. 20,249 (Dep’t of Commerce Apr. 7, 2008), at Dec. Mem. at cmt.
5, respectively. Once again, each decision stands for a
proposition not at issue in this case.
Conclusion
As Commerce’s decision to refuse to consider untimely filed
factual information was based on a reasonable reading of the
evidence in the record, Commerce’s determination is supported by
Consol. Court No. 08-00241 12
substantial evidence; accordingly, it is hereby:
ORDERED that Plaintiff Uniroyal Marine Export Limited’s Motion
for Judgment On the Agency Record is DENIED; and it is further
ORDERED that Plaintiff Uniroyal Marine Export Limited’s
complaint be DISMISSED. Judgment will be entered accordingly. See
USCIT R. 56.2(b).
_/s/_Donald_C. Pogue____
Donald C. Pogue, Judge
Dated: June 24, 2009
New York, New York