Slip Op. 02-42
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RIC HARD K. EATO N, JUDGE

____________________________________ : HUAIYIN FOREIGN TRADE : CORPOR

ATION (30) ; WORLDWID E : LINK, IN C.; CAP TAIN CHAR LIE : SEAFOOD WHOLESALE CO., USA; : BOSTON SEAF OOD PROC ESSORS, : INC.; GMRI, INC .; OCEAN DUKE : CORPORATION, : : Plaintiff s, :

: v. : Court No. 00-05-00240

: UNITED STATES DEPARTMENT : OF COMM

ERCE, : : Defend ant, :

: and :

: CRAWFISH PROCESSORS : ALLIANCE; LOUISIANA : DEPARTMENT OF AGRICULTURE : & FORESTRY AND BOB ODOM, : COMMISSIONER : : Defend ant-I nterven ors. : ____________________________________: Foreig n exporter

Plaintiff Huaiy in Forei gn Tra

de Corpor

ation 30 ( “Huaiy

in 30”) a nd domesti c importers (collectively

“Plaintiffs”) brought action challenging United States Department of Commerce’s (“Commerce”) findings on r eview of antidumping duty order covering freshwa

ter 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 ag ency re cord arguing that Commerce : (1) viola

ted statut ory and reg ulatory procedu res by failing to provide

Plaintiff s with adequate notice of and an adequate opportunity to participate in the re view investigation; and (2) by issuing its Clarification of Messa ge, caused United States Customs Service (“Customs”) improper ly to increa se Plaintif

f Huaiy in 30’s ca sh deposit

rate an d wrong ly a

pply it retroa ctively to Plaintiff Huaiyin 30’s entries of mer chandise. In addition, Plaintiffs claimed that pay ment byCourt No. 00-05-00240 Page 2

the Unite d States Governmen t of antidu

mping dut

ies to dome stic indust

ry pursuant to 19 U.S.C. § 1675c(a) (“By

rd Amendment”) changed antidumping statute from one remedial in nature into a statute that imposed

a penalt y a nd, there fore, Pla

intiffs we re entitl ed to full d

ue proce ss right s including a review proceeding as provided in the Administrative Procedure Act. United States (“Gove rnment” ), on beh alf of Com merce, argue d that Comme rce: (1 ) provide d Plaintiff s with adequate notice of and an adequate opportunity to participate in the re view investigation; and (2) properly c larified to Customs that Plaintiff Huaiyin 30 was not entitled to cash deposit based on antidumping duty marg

in of 91.5 percent. Finally , Government claimed pay ment of antidumping duties to domestic industry did not transform antidumping re gime into one that imposed a penalty and, ther

efore, Plaintiffs were not entitled to full due process rig hts 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 pe ndency of administrative review, and adequate opportunity to participate in such review; (2) Commerce properly c larified to Customs that Plaintiff Huaiyin 30 was not entitled to cash deposit based on antidumpin

g duty margin of 91.5 pe

rcent; a nd (3) pa yme nt of antid

umping du

ties to dome stic industry in accorda

nce with By

rd Amendment did not transform antidumping regime into one th at im po se d a pe na lt y. [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, I nc., and Ocean Duke Corporation. Robert D. McCallum, Jr. , Deputy Assistant Attorney Genera l; David M. Cohen , Director, United Sta

tes Depa rtment of Justice; Velta A. Melnbre ncis , Assistant Director, United States Department of Justice, Civil Division, Commercial Litigation Branch. Adduci, M astriani

& Schau mberg, L.L .P. ( James Taylor, Jr. and John C. Steinberger ) for Defendant-Inte

rvenors Crawfish Processors Alliance, L ouisiana Department of Agriculture & Forestry and Bob Odom, Commissioner.

OPINION
EATON , Judge : This matter is before the court on the motion of Huaiy in Foreign Trade Corporation 30 (“Huaiy

in 30”), Worldwide Link, I nc., Captain Charlie Seafood Wholesale Co., USA, Boston Seafood Processors, Inc ., GMRI, I nc., (“GMRI/Red Lobster”) and Ocean DukeCourt No. 00-05-00240 Page 3

1 As the domestic importers of the subject merchandise, Plaintiffs Worldwide L ink, Inc., Captain Charlie Seafood Wholesale Co., USA, B oston Seafood Processors, Inc., GMRI /Red Lobster and Ocea

n Duke Corporation are “interested parties” within the meaning of 19 U.S.C. § 1677(9). Corporation 1 (co ll ect iv ely “ Pl ain ti ffs ”) f or j udg men t u pon th e ag enc y reco rd p urs uan t t o US CIT R. 56.2. Plaintiffs challenge certain aspects of the f irst administrative review of the antidumping duty order c overing imports of freshwater cra wfish tail meat from the People’s Republic of China (“PRC”) for the period of March 26, 1997, through A ugust 31, 1998. See Freshw ater Cra wfish Tail Meat From the P.R.C.: Final Results of Administrative Antidumping Duty a nd New Shipper Reviews, and Final Rescission of New Shipper Review , 65 Fed. Reg. 20,948 (Apr. 19, 2000) (“ Final Re sults ”). 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 a ntidumping review, the court will hold unlawful “any determination, finding, or conclusion found . . . to be unsupported by substantial evidenc e on the record, or otherwise not in accor dance with law . . . .” 19 U.S.C. § 1 516a(b) (1)(B) (i). For the rea sons set f

orth below, the co

urt denie s Plaintiff

s’ 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 Depa rtment 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 I nvestigation , 61 Fed . Reg.Court No. 00-05-00240 Page 4

2 The period of investigation covered 1996–97 and [t]he produc

t covere d by

this invest

igation is freshwater cr

awfish tail meat, in all its forms (whether washed or with fat on, whether purged or unpurged), g

rades, and sizes; whether frozen, fresh, or chilled; and regardless of how it is packed, pre served, or prepared. Excluded from the scope of the investigation are live cra wfish and other whole crawfish, whether boiled, frozen, fr esh, or chilled. Also excluded are saltwater crawfish of any type and par

ts thereof.
See Freshwater Crawfish Tail Meat Fr om the P.R.C.; Initiation of Antidumping Investig ation , 61 Fed. Reg. at 54,155.

3 The following companies submitted questionnaire responses: China Everbrig ht Trading Company , Binzhou Prefecture Foodstuffs I mp. & Exp. Corp., Yancheng Fengba o Aquatic F ood Co., L

td., Yanc heng F oreign

Trade Corp., Hua

iyin Foreig n Trade Corp., Jiang su Cereals, Oils & Foodstuffs I mp. & Exp. Corp., Jiangsu Light I ndustrial Prods. Imp. & Exp. (Group)Yangzho

u Co., L iany

ungang Yupeng , Jiangsu Oversea s Group Cor p., Anhui C ereals , Oils & Foodstuffs Imp. & Exp. Corp., Qidong Baolu Aquatic Prods. Co., Ltd., Shandong Foodstuffs Imp. & Exp. parte. Corp., Na ntong Delu Aquatic Food Co., L td., Huaiyin Ningta

i Fisheries Co., Ltd., and Yanche ng Baolong Aquatic Foods Co., L td. See Inve stigation Prelim. Determination , 62 Fed. Reg. at 14,393.

4 Among the complicating factors in this action is the confusion re sulting from the similarity in names o f the var

ious PRC enti

ties—i.e. , Huaiy

in Forei gn Tra

de Corp., Huaiy

in Foreign Trade Corporation 5 (“Huaiyin 5”) a nd Huaiyin Cerea

ls, Oils & Foodstuffs Import and Ex po rt Co rp or at io n a re a s in gl e c on ce rn —w hi le Pl ai nt if f H ua iyi n 3 0 i s a n u nr el at ed en ti ty. 54,154 (Oct. 17, 1996). 2 Following receipt of the petition, Commerce initiated an investiga tion and sent antidumping questionnaires to various PRC freshwater craw fish tail meat exporters and producers. See Notice of Prelim. Determination of Sales at Le ss Than Fair Value: Freshwater Crawfish Tail Mea t From the

P.R.C. , 62 Fed. Reg. 14,392, 14,393 (Mar. 26, 1997) (“ Investigation Prelim. Determination”). Questionnaire responses were re ceived from numerous companie s, 3 including Huaiy in Foreign Trade Corporation (“H FTC”). 4 Plaintiff Huaiyin 30, anCourt No. 00-05-00240 Page 5

5 In the ir papers Plaintiff s assert t hat, “[a]s s tated to [Co mmerce] i n its questionnaire response, [Plaintiff] Huaiyin 30 paid its leg al fees to the lawy er in the initial investigation . . . . Unfortunately , [Plaintiff] Huaiyin 30 was misled. The lawy er did not file any document s for [Plain

tiff] Huai yin 30 on the r

ecord of the initia l investig ation.” (

Pls.’ Mem. Supp. Mot. J. Agency R. at 2.)

6 A nonm arket e conom y is defin ed by the an tidu mpin g statu te as “a ny foreign country that the a dminister ing authority

determines does no t operat e on mark et princ iples of c ost or pricing structures, so that sales of mercha ndise in such country do not re flect 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 rema

in 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. entity unrelat ed to HFT C, took no pa

rt in the pr

oceedin gs. 5 As it ha d d on e p re vi ou sl y, Commerce treated the PRC as a nonmarket economy country

6 and, thus, companie s wishing to receive a company

-specific antidumping duty margin were required to demonstra te an absence of state control. Id. at 14,394. In its questionnaire response, HF TC indicated that it was applying for a separate company

-specific margin. Id.

In August of 1997, Commerce completed its investigation and established antidumping duty marg ins 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 L ess Than Fair Value: Freshw ater Cra

wfish Ta il Meat F rom 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 L ess Than Fair Value and Antidumpin

g Duty Order: Freshwa

ter Craw fish Tail M eat From the P.R.C. , 62 Fed. Reg. 48,219 (Sept. 15, 1997) (“The ad valorem weighte d-average dumping mar gins are as follows . . . Huaiyin Fore ign Trading Corporation . . . 91.50” perc ent.) (“ LTFV Final De termination ”). AsCourt No. 00-05-00240 Page 6

Plaintiff Huaiyin 30 took no part in the proce edings, it was assigned the PRC-wide antidumping duty marg in of 201.63 percent, as were all other exporters of c rawfish tail meat that did not establish their independence from gover nment control. See id. at 41, 349 (“ We are a pplying a single antidumping [PRC] rate . . . to all exporters in the PRC other than those firms that were fully responsive to our re quests 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 c ontrolled by the PRC governme nt.” Id. (citation omitted). Therefore, because it did not qualify for a separate rate in the investig ation, 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 investig ation . . . .”).)

According to Plaintiffs, following the issuance of the LTFV Final De termination , events transpired outside of the context of any Commerce proceeding that affe cted the subsequent

course o f events . First, u pon lear ning tha t HFTC ha

d recei ved a low er rate

than Plain

tiff Hua iyin 30, the local PRC government concluded that Plaintiff Huaiy in 30 should take advantage of HFTC’s lower rate:

After the 1996 crawfish investigation, HFTC[] got a re latively low antidumping duty rate

while [Plaintiff] Huaiyin 30 got a much higher rate. [Pla intiff] Hua

iyin 30 and oth er loca

l crawf ish exporters wanted to use HFTC[’s] low rate. HFTC[] was unhappy about this and asked the Committee for assistance. . . . [T]he Committee a

nd other l ocal com

panies f elt that H FTC[] 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 assig ned the PRC-wide antidumping duty marg

in of 201.63 percent, Plaintiff Huaiy in 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 Gene ral Manager of [Plaintiff Huaiy in] 30 . . . . These gentleman assured [GMRI /Red Lobster that Plaintiff Huaiyin] 30 was entitled to the 91.5% tariff . When asked . . . for documentation they produc ed a circular from their industry association which clearly stated Huaiyin For

eign Trade Corporation was entitled to the 91.5% tariff. They also produced a letter f rom the US E

mbassy in Beijin g which stated Hu

aiy in Foreig n Trade Corp., wit

hout spec ify

ing numbe

rs, had th e benef

it of the 91.5% tariff. The officials with whom [GMRI/Red L obster] were me eting pr

offere d those doc

uments as substantia

tion for their representation [that] any cr awfish purchased from [Plaintiff Huaiyin] 30 could be imported into the US under the 91.5% r ate. (Response of Worldwide Link, I nc., 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). I

n addition , Plaintiff

s assert t hat, GMRI/ Red L obster, made nume rous atte mpts to con

tact the U .S. government, including [Commerce] to determine whether the 91.5% ca sh deposit

rate for Huaiy

in Forei gn Tra

de Corp. a

pplied to [Plaintiff] Huaiyin 30 before importing cr awfish 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 Huaiy in Foreign Trade Corp., in the summer of 1998, Red Lobster imported the cra wfish from [Plaintiff] Huaiyin 30 rely ing on the language in the a ntidumping order. (Pls.’ Me m. to Commer

ce of 11/ 14/99, Pub. R. Doc. 12 5 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 unchalleng ed until September 1998. At that time, Commerce “received a reque st from [Petitioner] to conduct an administrative review of the antidumping order on freshwater cr awfish tail meat from the PRC.” See Notice of Preliminary Results of Antidumping Duty Administrative Review and N ew Shipper Reviews, Partial Rescission of the Antidumping Duty Administrative Review , and Rescission of the New Shipper Review for Yancheng B aolong Biochemical Products, Co. L td.: Freshwater Crawfish Tail Meat From the P.R.C. , 64 Fed. Reg. 55,236, 55,237 (Oct. 12, 1999) (“ Prelim. Re sults ”). I n its request, Petitioner identified certain exporters of crawfish tail meat, including “Huaiyin Fore ign Trade Corp.” for review. ( See letter from Ablondi & Foster to Commerce of 9/30/98, Pub. R. Doc. 3 at 2); see also Initi ation of A ntidumping

and Counte

rvailing Duty Administra

tive Revie

w, Reque sts for Revocation in Part and Deferral of Administrative Review s , 63 Fed. Reg. 58,009, 58,010 (Oct. 29, 1998) (“

Notice of Initiation ”). Petitioner did not, however, name Plaintiff Huaiy in 30 in its petition and Commerce did not specifically name it in the Notice of Initiation . ( See letter from Ablondi & Fo ster to Com merce o f 9/30/98, Pub. R. Doc . 3 at 2); Notice of Initiation , 63 Fed. Reg. at 58,010. Commerce then sent questionnaire s to the PRC crawfish tail meat exporters identified in the Notice of Initiation

.

Thereafter, in S eptembe

r 1999, “ [a]fter a

n . . . inquir

y f rom” the United Sta

tes Customs Service (“Customs”), (Def.’s Mem. Opp’n to Mot. J. Agency R. at 22.), Commerce issued a “Clarif ication o f Messag e” to Customs rega rding w hich comp any

was actu ally entitled t o a cashCourt No. 00-05-00240 Page 9

7 Commerce, in making its clarification, stated that the entity known to it as Huaiyin 5 “is the same e

ntity that submitted the sales and factors infor mation on which [Commerce] based the separate rate . . . in the LTFV investigation” and, therefore , Huaiyin 5 was entitled t o a cash d eposit ba sed on HF TC’s sepa rate co mpany

specific antidumpin

g duty margin of 91.5 percent. ( See Issue and Dec ision Mem. , Pub. R. Doc. 214 at 138.) As previously noted in footnote 4 supra , H FT C a nd Hu ai yin 5 c on st it ut e t he sa me en ti ty.

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 a t 1.) deposit ba sed on the

separa te lower “HFTC” antidumpin

g duty margin . (Def. ’s Mem. Op p’n to Mot. J. Agency R., Ex. 7 at 4; Def.’s Mem. Opp’n to Mot. J. Agenc y R. at 22.) The Clarific ation of Message stated that HFTC “was a lso known as” Huaiyin 5 a nd, therefore, per the LTFV Final Determination

“only fre shwater crawfish tail meat [entries] imported from” HFTC or Huaiy in 5 7

were e ntitled to a

cash dep osit base d on the se parate company -specif ic antidu mping dut

y ma rgin of 9 1.5 per

cen t. ( Def .’sMem . Opp’n

to M ot. J. Ag ency

R., Ex. 7 at 4 ; Pls .’ M em. Supp . Mo t. 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 percen

t. In a ddition, in

accord ance wi th Commerc e’s instr

uctions, Customs imposed a cash deposit based on the PRC-wide antidumping duty ma rgin of 201.63 percent on all Plaintiff Huaiy in 30’s 1997–98 crawfish tail meat entries imported into the United States. ( Id. ) Consequently, cer tain domestic importers 8 of Plaintif f Huaiy in 30’s cr awfish ta il meat were required “to post additional cash deposits of appr oximately 110” percent to cove r 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. Re sults , 64 Fed. Reg. at 55,236. CommerceCourt No. 00-05-00240 Page 10

9 Commerce also followed its policy “ that [a] separate-rates questionnaire must be [submitted and] evaluated each time a respondent makes a separa te rate claim, regardless of a ny separate rate the respondent re ceived in the past.” See Prelim. Re sults , 64 Fed. Reg. at 55,239 (citation omitted). Thus, HFTC had the burden of demonstrating, ag ain, its independence from PRC gover

nmental c ontrol. Com

merce, however , was una ble to per form ver ification of HFT C, because “the company

refused to permit verification . . . of its questionnaire response.” Id. at 55,238 (c itation omi

tted). As such, Comme

rce did “ not use the

informat ion” submi

tted in HFTC’s q

uestionna ire. I nstead, C ommerce

decided that “the use of [fa

cts avai lable wa s] required for” HFTC. Id. (citation omitted). preliminarily determined tha t sales of crawfish tail meat imported into the United States from the
PRC were ma

de below normal va

lue durin g the pe riod of in vestiga tion. I n 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, Commerc e followed its policy 9 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 c ompanies unable to demonstrate an absence of state contr ol 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 De termination

. See Prelim. Re sults , 64 Fed. Reg. at 55,239. Co nsequen

tly, Commerce

continue d to asses s the PRC-wi de antidu mping dut

y margin, found in the initial investigation, of 201.63 percent. Id.

Following the review of comments on the Prelim. Re sults received from interested parties, including Plaintiff Huaiy in 30, Commerce issued the Final Re sults on A pri l 1 9, 2 000 . In the Final Re sults , Commerce made no changes to the marg in calculations with respect to HFTCCourt No. 00-05-00240 Page 11

and Plaintiff Huaiyin 30 from the ma rgins set out in the Prelim. Re sults

. See Final Re sults , 65 Fed. Reg. at 20,949. I

nstead, Commerce concluded that HFTC and Huaiy in 5 constituted a single c ompany, and that

such comp any

failed to demonstr

ate an a bsence o f state c ontrol. Th us, crawfish tail meat entries labeled with either name w ere assigned the PRC-wide antidumping duty marg in of 201.63 percent. Id. In addition, Commerce determined that, since Plaintiff Huaiyin 30 had “not re quested a separate rate” in the a dministrative 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. (“Huaiy in Forei gn Tra

de Corpor

ation (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

Plaintiff s with ade quate not

ice of a nd an ade quate opp ortunity to partic ipate in the revi ew inves tigation ; and (2)by i ssuing it s Clarific ation of M essage , caused Customs improper ly to increa se Plaintif

f Huaiy in 30’s ca sh deposit

rate an d wrong ly a

pply it retroa ctively on Plaintiff Huaiyin 30’s entries of me rchandise 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), c hanges the antidumping statute from one remedia l in nature

into a stat

ute that im

poses a pe

nalty and, ther efore, Plaintiff

s were e ntitled to full due process rights including a review proceeding as provided in the AdministrativeCourt No. 00-05-00240 Page 12

10 See 5 U.S.C. § 55 1 et seq. ( 1994); see also GSA, S.R.L., v. United States , 23 CIT 920, 931, 7 7 F. Supp. 2d 1349, 13 59 (1999)(stating that “the APA does n

ot 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). Procedu re Act. 10

The United States (“Government”), on behalf of Commerc e 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 pay ment of antidumping duties to the domestic industry does not transform the antidumping regime into one that imposes a pena lty and, theref

ore, Plaintiffs were not entitled to full due process rights including a review pr oceeding as provided in the Administra

tive Proc edure A ct.

I. Adequate Notice Of and An Adequate Opportunity To Be Heard In their brief, Plaintiffs arg ue that they we

re given neither adequate notice of nor an adequate opportunity to pa rticipate in the administrative review because Commerce “did not name [Plain

tiff] Huai yin 30 in its Notice of Initiation . . . .” (Pls .’ Mem. Sup

p. Mot. J. Ag ency

R. at 29.) In addition, Plaintiffs contend that “despite [Commerce’s] clea r instructions to specify each individual producer or exporter for revie w, the Petitioner[] did not request that [Plaintiff] Huaiyin 30 be re

viewed.” ( Id. at 24.) In support of their arg ument, Plaintiffs rely on two relate d regulations. The first, 19 C.F.R § 351.213, provides in relevant part: “Ea ch yea r during theCourt No. 00-05-00240 Page 13

anniversary

month of the publication of an antidumping . . . order, a domestic interested par ty . . .
may reque st . . . 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 sec ond, 19 C.F.R. § 351.221, states that pursuant to subsection 351.213(b)(1): “I n an administrative review . . . the Secretary

. . . [w]ill publish the notice of initiation of the review no later than the last day of the mon

th followi ng the a nniversa ry month . . . .”

19 C.F.R. § 351.221( c)(1)( i). Thus, Plaintiff s claim tha

t becaus e Commerc e “did not include [Pla

intiff] Hua

iyin 30 in its Notice of Initiation ” by specif

ically naming

it, “neither [Plaintiff] Huaiyin 30 nor the Plaintiff importers . . .

rec eiv ed a

ny rea l no tic e of

the 199 7–9 8 ad

mini strati ve r evi ew. ” (P ls. ’ Mem. Su

pp. Mot . J. Agency R. at 26.)

The Government, on the other hand, arg ues that “Commerce need not give persona l notice to any par

ty that could be aff

ected by a n administrative review” and, therefore, it wa s “free to choose a variety

of means to give reasonable notice that c ertain 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 c overing imports of crawfish tail meat from the PRC. ( Id. ) In other words, “the sta tement contained in the Notice of Initiation clearly a dvised [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

11 See Transcom, Inc. v. United States , 24 CIT __, 121 F. Supp. 2d 690 (Nov. 7, 2000) (“ Tra nsc om II ”) (find ing notic e of initia

tion at issu

e provide d adequa

te 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 tha t Commerce’s notice of initiation, which specifically na

med certain companies for review, wa s also sufficient to alert unnamed exporters of taper ed rolle r beari ngs to the scope of the admin

istrative review b ecause : [A]ll exporte

rs in a non

market e conomy

country are pre sumed to be part of the state-controlled entity . . . . [T]hat if any companynamed in the administrative review is found to be part of the statecontrolled entity, the ef

fect of that finding is to bring within the scope of the revi ew any

other exporters fr

om that co

untry that fail to demonstrate their independence from the state-c ontrolled entity. According[ly] . . . if the unnamed exporters wish[] to avoid having the PRC rat

e applie d to their e

xports, the

y should . . . vo luntarily participate[] in the review[] and demonstrate[] their independence from the nonmarket economy entity.
Transcom I , 182 F .3d at 881. T he CAFC found , howe ver, t hat th e use o f this langua ge represented a new policy

for Commerce to which it did not alert potentially affected parties. Thus, the new policy, tog ether 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 affe cted by procee dings in which the exporters were not named as parties. Id. The cour t is not con

vinced of Plaintiff s’ arg uments tha

t they were pr ovided wi th 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 court 11 are instructive. As here, Transcom I involved an administrative review of an antidumping order affecting an exporter from a nonmar ket economy c ountry that was not named in a notice of initiation. The CAFC found the notice of initiation at issue 12 to be inadequate because the importer: [H]ad no re ason to expe ct that the antidumpin

g duties on its exporters’ products could be affected by proceedings in which the exporters were not named as parties. Neither the statute norCourt No. 00-05-00240 Page 15

13 The Government, on the other hand, contends that the lang uage in the Notice of Initiation “is no less clear than” the languag e in the notice of initiation at issue in Tra nsc om II and, therefore, the court should conclude, as the court did in Tra nsc om 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 Tra nsc om 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 ar e conditionally cover

ed by this review.’ ” Tra nsc om II , 24 CIT at __, 121 F. Supp. 2d at 700. The court found tha t this language “gave

(continued...) Commerce ’s reg

ulations g ave any

hint that su

ch a proc edure w ould be used. Moreover, at the time of the administrative reviews a t issue in this case, Commerce had not announced that it would be following a diffe rent pra ctice wi th respe ct to unna

med export

ers in administr ative re views of p

roducts f rom nonma

rket ec onomy countries . . . .
Transcom I , 182 F.3d at 881. Thus, the CAFC held, inter alia , that Comme rce wa s requir

ed to “provide some form of notice that the administrative review may . . . increase . . . the antidumping duty rate s 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 affe cted by the pending administrative review. Here, the Notice of Initiation reads in releva nt part: If one of the above

named companies does not qualify for a separate rate, all other exporters of fre shwater crawfish tail meat from the People’s Republic of China who have not qualified for a separate rate are dee

med to be covered by

this review as part of the PRC entity

of which the name d exporter

is part. Notice of Initiation , 63 Fed. Reg. at 58,010. Plaintiffs argue tha t this notice was inadequate and, theref ore, the y “ did not re quest a r

eview inv estiga

tion” or “ particip ate in the

review s imply 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. The

re, the CA

FC found i

tCourt No. 00-05-00240 Page 16

13 (...continued) Transcom . . . more than sufficient . . . notice that the particular e ntries in which Transcom had an interest could possibly be a ffected by the administrative review.” Id. , 24 CIT at __, 12 1 F. Supp. 2d at 701 (footnote omitted).

14 Commerce has been using this notice of initiation languag e in administrative reviews of antidumping orders covering PRC exporters since August 1, 1997. See , e.g. , Action: Notice of Initiation of Antidumping and Counterva iling duty Administrative Reviews and Request For Revocation In Par t , 62 Fed. Reg. 41,339, 41,345 (Aug. 1, 1997). This lang uage is of the same import as the language use d in the Notice of Initiation at issue h ere, an

d had bee n in use for more than a y

ear prior to the Notice of Initiation being published. Thus, there is no serious argument that the languag e used in the Notice of Initiation represented a change

in policy. persuas ive that the langu

age of the notic e of initia

tion, at iss

ue in that case, ha d not prev

iously been use d and that , theref ore, unnamed expor

ters had inadequa te notice of a cha nge in
Commerce ’s policy

that put the

m at risk with respe ct to their mercha ndise. Th e CAFC did acknowl edge that following publi cation of such notic e of initia

tion Commer

ce: [B]egan stating in notices of initiation . . . that all unnamed exporters . . . from the People’s Republic of China are conditionally covere d by the review or, more explicitly, that if one of the na med compa

nies does not qualif

y f or a sepa rate ra te, all other exporters that have not qualified for a separate rate are deemed t o be cove red by the revi ew as pa

rt of the s ingle Ch

inese entity of which the name d exporters are a part.[ 14 ]
Transcom I , 182 F .3d at 882. T hough t he CAFC decli ned to find t hat th is new langua ge “satisf[ied] statutory and reg ulatory notification requir ements[,]” it did observe that such language went “fa

r 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 par

ty that could be aff

ected by a n administrative review that its interests may be atCourt No. 00-05-00240 Page 17

15 See also Tra nsc om , II , 24 CIT at __, n.10, 121 F. Supp. 2d at 701, n.10 (“Constructive notice is information or knowledge of a f act imputed by law to a pe rson . . . because he could have disc overed t he fact by proper di ligenc e, and his situation was such a s to cast upon him the duty of inquiring into it. . . .” (c itation omitted)).

16 Subsection 1675(a) of title 19 provides, inter alia : At least once during each 12–month period beg inning on the anniver sary

of the da te of publ ication o f . . . an a ntidumping

duty order . . . the administrating authority , if a request for such a review has been receiv ed and a fter pub lication o f notice of such r eview in the Federal Register, shall . . . (B) review, and determine . . . the a mount of any antidumping duty . . . and shall publish in the Federal Register the results of such r eview, togethe r with noti ce of an

y du ty to be asses sed, esti

mated dut y to be deposited, or investigation to be resumed. 19 U.S.C. § 1675(a)(1)(B). stake[,]” id. (citation omitted), constructive notice by publication was adequate. 15 Moreover, the CAFC did not find that a party must be spec ifically named f or 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 take n 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 pa rties named by domestic pr oducers could be affected by the
procee dings an

nounced in a notic e of initia

tion, or th at such no tice cou ld only be adeq uate as t o named parties rather than to a class. Id. at 882–83.Court No. 00-05-00240 Page 18

17 See LTFV Final De termination , 62 Fed. Reg. at 48,219 (“The ad va lorem weighted-averag e dumping margins are as follows . . . Hua iyin Foreig

n Trade Corp. . . . 91.50” percen t.); see also Notice of Initiation , 63 Fed. Reg. at 58,009–10 (“The Depa rtment of Commerce has received requests to conduct a dministrative reviews of various antidumping . . . orders and findings with September anniversary dates. In accor

dance with the Department’s regulations, we are initiating revie w[]” of the following company : “Huaiyin For eign Trade Corp.”). Here, the notice

given to Plaintiff s satisfie s the CAFC ’s crite ria. First, Plaintif

f Huaiy in 30 was a “reasonably

informed” party

by virtue of its being

a PRC producer of crawfish tail meat that had previously: (1) trie d to participate in the original crawfish tail meat antidumping investigation and seek a company -specific antidumping duty margin therein; and (2) taken advanta ge of H FTC’s ca sh deposit , which wa s based on HFTC’s s eparat

e compan y- specific antidumping duty marg

in. As such, Plaintiff Huaiyin 30, though not spec ifically named, wa s well situated to determine from the Notice of Initiation that its 1997–98 crawfish tail meat entries could be a

ffecte d by the admin

istrative review. Second, t

he domest

ic importe

r Plaintif fs can a lso be found to be “reasonably informed” parties to whom the Notice of Initiation provided adequa te notice. These Plaintiffs were fully aware that an entity

with “Huaiyin” in its name wa s supplying them with crawfish tail meat. They received a copy

of the antidumping order which, together with Plaintiff Huaiyin 30’s repre sentations, apparently c onvinced them that they we re being supplied by th e “Huai

yin ” entity that was named in th e antidum ping ord er as the one entit led to take advantage of the ca sh 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 yea r prior to the issuance of the Clarification of Messag e), they did not believe that the “Huaiyin” entity named in the Notice of Initiation was their supplier.Court No. 00-05-00240 Page 19

Thus, the domestic i

mporter P laintiff

s had rea son to beli eve that the cra wfish tai l meat ent

ries in which they had a

n interest could be affected by the administrative review.

Becau se they

receiv ed adeq

uate noti ce, the c ourt is ne cessar ily u npersua ded by Plaintiff s’ claim that they could not have participated in the administrative review until after the Prelim. Results were published. As noted above, Plaintiff Huaiy in 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 affec ted by the administrative re view. Moreover, as Commerce specifically

named the “Huaiy

in” entity in the Notice of Initiation that the d

omestic 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 sta

ted that, “[i]f one of the [specifically] named companies doe s not qualify for a se parate rate, all other exporters . . . who have not qualified for a separate ra te are deemed to be covered by this review . . . .” See Notice of Initiation , 63 Fed. Reg. at 58,010. Thus, Plaintiffs were g iven a choice, at the time the Notice of Initiation

wa s p ub li sh ed , t o e it he r p ar ti ci pa te in th e r ev ie w b y se ek in g a se pa ra te co mp an yspecific antidumping duty margin, or risk being assigne d the PRC-wide rate should any na med company fa

il to qualify for a sepa

rate rate. By

choosing not to participate in the review investig ation, Pla

intiffs a nd any other simi larly

situated e

ntities, r isked the consequences of

their inaction. The court, therefore, finds that the Notice of Initiation gave a dequate notice to Plaintiff s of the pe

ndency of the ad ministrati ve revie w, and tha

t Plaintiff s had an a dequateCourt No. 00-05-00240 Page 20

opportunity to participate in such re view.

II. Commerce’ s Clar ific ation of Mes sage T o Cus toms The next question presented is whether Commerce properly clarified to Customs which PRC exporter

was entit led to tak e advan tage of cash dep osits base d on the an tidumping

duty margin of 91.5 percent. Plaintiffs do not dispute Commerce’s authority to apply a presumption of state c ontrol an

d assess a PRC-wide a

ntidumping

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 e ntity known as HFTC or Hua iyin 5 was entitled to the lower cash deposit based on the antidumping duty margin of 91.5 percent—was improper, because Plaintiff s relied “ in good f

aith upon [Commerce]’ s mistake” of allowi ng Custom s to assign a cash deposit to Plaintiff Huaiy in 30’s entries of merchandise based on the lower antidumping duty marg

in of 91.5 percent. Plaintiffs, further, argue that Commerce “should not be . . . all owed to g ain a wind fall as a direct r esult of it s mistake by a

pply ing ret roactiv e duties” to Plaintiff Huaiyin 30’s 1997–98 craw fish tail meat entries. (Pls.’ Mem. Supp. Mot. J. Agency R. at 44.)

The Government, on the other hand, arg ues 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 Commerc e’s req

uests for informat ion was e ntitled to a

separa te rate o f 91.5 pe

rcent ad valorem ,” and, therefore, “[t]he clarification merely stated HFTC’s address and the two otherCourt No. 00-05-00240 Page 21

18 See footnote 4, supra . names under which it was known.” 18 (De f.’ s M em. Opp ’n t o Mo t. J. Age ncy R . at 24. ) In addition, the Government argues that, since HF TC “advised Commerce for the first time on August 31, 1999 that its official name was” HFTC, Commerce, the refore, “did not make a mistake in assigning the 91.5 percent rate in the” LTFV Final De terminationto HFTC “

because that was how the HFTC entity that was investigated represented itself during the investigation.” ( Id. at 25–26 (citations omitted.) Finally, the Gove rnment contends that “Commerce[] had no reason to refer to” Plaintiff Huaiy in 30 in the LTFV Final De termination“because Commerce was not even aware of the existence of [Plaintiff Huaiy in 30] during the investigation.” ( Id. at 26.)

Plaintiffs’ argument that Commerce’s September 1999 Clarifica tion of Message had improper results is unconvincing. Commerce’ s Clarific ation of M essage 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 Huaiy in 30 in no w ay

means tha

t the Unite d States Tr

easury gained a “windf all.” Fi rst, the loca l PRC gove

rnment’s decision to allow Pla

intiff Huaiy

in 30 to use

HFTC’s s eparat

e
company-spe cific antidumping duty ma rgin of 91.5 percent was in no way authorized by
Commerce . Second, Plaintiff Huaiy in 30 was f

ully aware that it had

been ass igned the PRCwide anti dumping d

uty margin but, nonetheless, particip ated in ta king ad vantag e of cash deposits based on HFTC’s lower rate when exporting its product to the United States. As Plaintiff Huaiy in 30 did not

take par t in either the orig inal inve stigation or the a dministra tive review, itCourt No. 00-05-00240 Page 22

19 Section 516A of the Tariff Act of 1930, as amended , 19 U.S.C. § 1516a (1994). cannot now claim any

entitlement to cash deposits based on a company -specific antidumping duty margin . With respe ct to the d omestic im

porter Pl aintiffs , their re liance on their ina dequate investigation and on Plaintiff Huaiy in 30’s representations cannot be attributed to Commerce. Commerce can hardly

be held accountable for the similarity among exporters’ names and a supplier ’s dece

ptive busi ness pra ctices. Commerce

had no re ason to know that Plai ntiff Hua iyin 30 existed prior to Custom’s inquiry in September of 1999 and, thus, no reason to make a distinction among

the “Hua iyin ” named e

ntities unt

il 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 HF TC’s cash deposit rate to Plaintiff Huaiy in 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. § 1 675c (20 00) (“B yr d Amendme

nt”), tra nsforms the antidum

ping sta tute 19 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 By rd Amendment, duties collected pursuant to antidumping orders were de posited wi

th the Tre asury

for ge neral pu rposes. B y e

nactmen t of the B yr

d Amendme

nt, however, Congress modified the antidumping statute so that “[d]uties assessed pursuant to . . . an antidumpin

g orde r . . . shal l be distri

buted on a

n annual b asis . . . to

the aff ected domestic produce rs . . . .” 1 9 U.S.C. § 16 75c(a) . In o ther wor ds, as a r esult of the By

rd Amend

ment, the se duties are to be distributed to the firms that petitioned for relief, and to those firms that supportedCourt 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 B yrd Amendmen

t, did not imp ose a pen

alty . An ear

ly d ecision o f the Unit

ed States Court of Cu stoms and Paten t Appeals reviewe d the natu

re of the antidumpin

g statut e and fou nd that: [W]e cannot escape the conviction that the expressed purpose of Congre ss, in the A

ntidumping

Act of 19 21, was to

impose not

a penalty, but an amount of duty sufficient to equalize competitive conditions between the exporter and American industries affected . . . . I

t follows that the Antidumping Act of 1921 is not repug nant to the

provision s of said A

mendment

V [to the U. S. Constitution], as denying to the importer due proce ss 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 [affec ted U.S. industries].” See Union Camp Corp. v. United States , 22 CIT 267, 278, 8 F. Supp. 2d 842, 852 (1 998) ( citi ng Imbert I mp., 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 change s in the antidumping statute effected by the Byr d Amendmen

t nullify the reme dial natu

re of the statute a nd impose a

penalty entitling Plaintiff s to “full due process rights, including

a heari ng bef ore a ne utral judg e” beca

use the F ifthCourt No. 00-05-00240 Page 24

Amendment demands due process where there is a deprivation of “life, liberty or property.” (Pls.’ Me m. Supp. Mot. J. Agency R. at 50 (ci tation omit

ted)); see 5 U.S.C. § 551 et seq. (1994). The Government, on the other hand, contends that the “provision for the distribution . . . of antid umpi ng dut ies th at hav e been c ollec ted to the aff ected d omest ic pro ducers does n ot cha nge the purpose and remedial aspect of the antidumping la w 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 merc handise”; and (2) the “amendment does not make any changes to existing procedures” re garding how Commerce determines an importer’s a ntidumping

duty liability . (Def. ’s Mem. Op p’n to Mot. J. Agency R. at 20–21 (citations omitted).) Finally, Plaintiffs counte r that the Government’s position that there h as been no cha nge in t he magn itud e of th e duti es col lecte d is i rrelev ant be cause “ a change in the re med y is a cha nge to . . . t he purp ose

of t he l aw. ” (P ls. ’ Re

ply Mem . Sup

p. M ot. J. Agenc y R. at 14.) The court a

grees with the G overnme

nt.

First, the changes made by the Byr d Amendment to the antidumping statute do not impose upon foreign exporters the ty pes of burdens traditionally f ound to constitute civil or criminal penaltie s and, thus , the cons equent ne cessity of a hea ring pur suant to th e Fifth Amendment. In gene

ral, “‘A penalty

is a sum of money of which the law exacts payment by

way of punishment for the doing of some a

ct that is prohibited , or omittin g to do so me act tha

t is required to be done.’” Brown v. Cummins Distilleries Corp. , 56 F. Supp. 941, 942 (W.D. Ken. 1944) (c itation omi

tted). As such, the amount of

a penalt y g eneral ly b ears no r

elation to the cost of remediation of any

harm caused by

the performance or failure of pe rformance of the act.Court No. 00-05-00240 Page 25

20 DelBellas is one of a line of cases of this court discussing the mag nitude of an assesse d amount a

nd its rela tion to ac tual dama

ge susta ined. The se case s examined civil penalties to determine whether such penalties constituted “double jeopa rdy.” 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 e xcessive 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 dete rmining remedial effect of statute; and c onsidering relation of damag e sustain ed by

society to magni tude of a mount asse ssed, as f

actor in determining whether statute was remedial or constituted punishment). United States v. DelBellas , 23 CIT 600, 601 (1999) 20 (noting that in the

context of

a civil pe nalty proceeding under 19 U.S.C. § 1592 “there is nothing in the la nguage of [the statute] indicating that the a mount of th e penalt

y is in any way related to costs inc

urred by the gov ernment .”); see also Cummins Distilleries Corp. , 56 F. Supp. at 942 (“In a proce eding of this nature the [Government] has suffered no damages, and the a ction is not for the purpose of compensation.”). Another indicator of whether a statute provides for a penalty is the mag

nitude of the burden imposed. I

ndeed, c ourts hav e found that a duty may constitute

a penalt y w here it is “enormo usly in excess o f the gr

eatest a mount of r

egular duty ever imp osed upon

an artic le of the

same nature . . . .” See Helwig v. United States , 188 U.S. 605, 611–13 (1902) (finding that where reappraisement of imported merchandise resulted in an incr eased duty of

$354.00, and the further “sum” imposed by statute was $9,067.68, suc h further sum was a penalty because “the amount imposed was so large in proportion to the value of the merc handise imported, as to show bey ond doubt that it was a su

m imposed not, in fact, as a dut y up on an impor

ted artic le, but as

a penalt y and nothing else.”). Here, the fa cts do not support a finding of a penalty . First, the amount of the antidumping duty assesse d is directly relate d to the remedial goal of equalizing “competitive conditions[,]” C.J. Tower & Sons , 21 C.C.P.A . at 427, 7 1 F.2d at 445, and t

his amount

is determined in all respects as it was prior to the adoption of the By rd Amendment. Second, theCourt No. 00-05-00240 Page 26

21 These fi

ndings w ere as f

ollows: (1) Consis tent with the right s of the Un ited State s under th e 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 pur pose the restoration of conditions of fair trade so that jobs and investment that shoul d be in the

United Sta

tes are not lost thr

ough the false market si gnals. (3) The c ontinued d

umping or

subsidizati on of impor

ted produ cts after the issuance of antidumping orders or findings or (continued...) magnitude of the duty

cannot be said to be so large as to nece ssarily constitute a pena lty, since the amount assessed following the enactment of the B yrd Amendment is identical to the a mount

assesse d prior to

the amen dment’s e nactmen t.

Next, Congress itself may de termine that a provision not be regarded as a penalty. See Helwig , 188 U.S. at 613 (“If it clear ly appears that it is the will of Congress that the provision shall not be regarded as a pena lty, the Court must be gover ned by that will.”) ; see also United States v. Reorganized CFSI Fa bricators 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

co ns id er ed as a p en al ty o r i n t he na tu re of on e . . . wi th re fe re nc e t o t he di st ri bu ti on of mo ne ys thus paid . . . .”). I

n enacti ng the c hange s contained in the B yr d Amendme

nt, Congr ess determined that the funds collected were to be distributed to domestic produc ers. In support of its d eterm inati on, C ongres s made certai n find ings 21 including: “continued dumping . . . ofCourt No. 00-05-00240 Page 27

21 (...continued) countervailing duty

orders can frustrate the remedia l purpose of the laws by prevent ing mar ket pric es from r

eturning to fair le vels. (4) Where dumping or subsidization continues, domestic producers will be re luctant to

reinves t or rehir

e and may

be unable

to maintain p ension an

d health c are benefits tha

t condition s of fair trade would permit. Similarly, small businesses and Amer ican 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), reprinte d 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 st at ut e a re no t c om pe ns at or y in na tu re be ca us e, ra th er th an pr ov id in g p aym en t f or pa st in ju ry, they are prospective in nature, 19 U.S.C. § 1675c(b)(4), and used to “equa lize competitive conditions . . . .” C.J. Tower & Sons , 21 C.C.P.A. at 427, 71 F.2d at 445. The By rd Amendment (continued...) imported p

roducts a fter the issuance of antidu mping or ders . . . c an frust

rate the remedia l purpose of the laws by pre

venting market prices from returning to fair levels” and that “United States trade laws should be strengthened to see that the r emedial purpose of those laws is achieved.” Agriculture, Rural Development, Food and Drug Administration and Related Agencies Appropr iations Act of 2000, 1 06 Pub. L . 387, Title X [Continue d Dumping

and Subsid

y O ffset] § 1002 (3) , (5), 114

Stat. 1549 (2000), a s enacte d. In order to effec t this purpo se, Cong ress cho se to distribute the collected duties to affected domestic producers in hopes tha t 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 f armers and ranche rs may be [able] to

pay down acc

umulated debt, to ob tain work

ing cap ital, or to

otherwis e remain viable.” 22 Id. at (4). These findings demonstrate that Congr ess sought to change theCourt No. 00-05-00240 Page 28

22 (...continued) does not c

hange the prosp ective nature of these dut ies, nor d oes it pro vide that

such fund s should be used to compensate affected domestic firms for past injuries. Rather, the funds obtained by these dut ies are distribute d to affe cted dome stic firms for qual ify

ing expen ditures: The term “qualify

ing expenditure” means an expenditure incurred after the issuance of the antidumping duty finding or order or counter vailing duty order in any of the fo llowing c ategor

ies: (A) Manu factur ing fac ilities. (B) Equ ipment. (C) Rese arch an

d development. (D) Pe rsonn el tra inin g. (E ) A cq ui si ti on of

te ch no lo gy. (F) Health care benef

its to employees paid for by the employer. (G) Pension benefits to employe es paid for by the employer. (H ) E nv ir on me nt al eq ui pm en t, tr ai ni ng , o r t ec hn ol og y. (I)Acquisiti on of raw

materia ls and othe

r inputs. (J) Working capital or other funds needed to maintain production. 19 U.S.C. § 1675c(b)(4). antid umpi ng law i n orde r to st rength en its remedi al pur pose. Thus, rather than i mpos ing a penalty on fore ign exporters, Congress’ enacted purpose was to “strengthen[] . . . the remedial purpose of” the antidumping statute. Id. at (5). Congress having clea rly expressed its remedial
purpose, this cour

t is bound by

its will.

Finally, while cour

ts have found that the antidumping statute, as it existed prior to the enactment of the By

rd Amendment, was remedial in nature and, thus, did not constitute a penalty , these c ourts did not find tha t the dutie s imposed by th at statute were the exclusive

way in which this remediation could be accomplished. See gener ally C.J. Tower & Sons , 21 C.C.P.A. at 417, 71 F. 2d at 438; Union Camp Corp. , 22 CI T at 267, 8 F. Supp. 2 d at 842; Chr. Bjelland Seafoods , 16 CI T at 945; Chaparral Steel Co. , 901 F.2d at 1097. Prior to the enactment of theCourt No. 00-05-00240 Page 29

By rd Amend

ment, any duties co llected were dep osited wit h the Tre asury . Now, the se same duties are to be collected and distributed to parties affe cted by dumping . At its base, Plaintiffs
arg umen t is th at thi s ame

nded statu tory sche me is n ot remedia

l bec ause it wil l not “ ‘equalize competitive conditions between the exporter and American I ndustries affected . . . .’” (Pls.’
Mem. S upp. M ot. J . Agency R. at 49 ( citi ng C.J. Tower ).) Congress, however, has conc luded otherwise. The wisdom of the manner in which Congress c hooses 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 partic ular stat ute 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 Congre ss lies with the people, from whom its members derive their commissions.” (citing Springer v. United States , 102 U.S. 5 86 (1880) ; Kuttroff, Pickhardt & Co. v. United States , 12 Ct. Cust. App . 299 (192 4); McCray v. United States , 195 U.S. 27 (1904))).

CONCLUSION For the reasons set forth above, the cour t concludes that Commerce provided Plaintiffs with adeq uate noti ce of the

pendenc y of the admin

istrative review a nd an ade quate opp ortunity 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
pay ment of a ntidumping

duties to the domestic

industry in accor dance w ith the By rd Amend

ment does not transform the antidumping regime into one that imposes a pena lty. Thus, the court denies Plaintiffs’ motion for judgment upon the agency record and Commere’s finalCourt No. 00-05-00240 Page 30

de te rm in at io n i s s us ta in ed . J ud gm en t i s e nt er ed ac co rd in gl y.

_____________________________ Richard K. Eaton

Dated: April 30, 2002 New York, New York