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

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.

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
Consol. Court No. 08-00241 3

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. 

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
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-andnews.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
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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

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.

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,
Consol. Court No. 08-00241 9

(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)

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.
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