Navneet Education Ltd. v. United States

2023 CIT 191

• Court: United States Court of International Trade
• Decided: December 29, 2023
• Docket: 22-00132
• Status: Published

Opinion

Slip. Op. No. 23-191

UNITED STATES COURT OF INTERNATIONAL TRADE

NAVNEET EDUCATION LTD.

Plaintiff,

v.

UNITED STATES, Before: Stephen Alexander Vaden, Judge Defendant, Court No. 1:22-cv-00132 and

ASSOCIATION OF AMERICAN SCHOOL PAPER SUPPLIERS,

Defendant-Intervenor.

OPINION

[Denying Plaintiff’s Motion for Judgment on the Agency Record.]

Dated: December 29, 2023

Irene Huei-min Chen, Chen Law Group LLC, of Rockville, MD, for Plaintiff Navneet Education Ltd. With her on the brief was Mark Burton Lehnardt, Law Offices of David L. Simon, PLLC, of Washington, DC.

Antonia Ramos Soares, U.S. Department of Justice, Commercial Litigation Branch, Civil Division, of Washington, DC, for Defendant United States. With her on the brief were Brishailah Brown and Ian Andrew McInerney, of Counsel, U.S. Department of Commerce, Office of Chief Counsel for Trade Enforcement & Compliance.

Timothy C. Brightbill, Wiley Rein, LLP, of Washington, DC, for Defendant- Intervenor Association of American School Paper Suppliers. With him on the brief was Maureen Elizabeth Thorson. Court No. 1:22-cv-00132 Page 2

Vaden, Judge: Navneet Education Ltd. (Navneet or Plaintiff) filed this

Motion for Judgment on the Agency Record challenging the Department of

Commerce’s (Commerce) Final Results of the 2019-2020 Administrative Review of the

antidumping duty order on lined paper products from India, i.e., notebook paper. See

Final Results, 87 Fed. Reg. 17,989 (Dep’t of Com. Mar. 29, 2022) (Final Results). In

its Complaint, Navneet argues that Commerce (1) unlawfully deviated from its

established practice in calculating the company’s antidumping margin by

manipulating its computer software to allow for the incorporation of non-essential,

third-country data; (2) failed to notify Navneet of its intention to deviate from its

established practice, making its actions arbitrary and an abuse of discretion; and (3)

distorted the final calculation of Navneet’s dumping margin. See Pl.’s Compl. ¶¶ 22-

24, ECF No. 6. For the reasons set forth below, the Court DENIES Plaintiff’s Motion.

BACKGROUND

On September 28, 2006, Commerce published antidumping and countervailing

duty orders on certain lined paper products from India (Orders). Certain Lined Paper

Products from India, 71 Fed. Reg. 56,949 (Dep’t of Com. Sept. 28, 2006). Commerce

published notice of the initiation of an administrative review of those Orders for the

period of September 2019 through August 2020 on October 20, 2020. Initiation of

Antidumping and Countervailing Duty Administrative Reviews, 85 Fed. Reg. 68,840

(Dep’t of Com. Oct. 20, 2020). The agency selected Navneet as a mandatory

respondent for the administrative review on January 13, 2021. Certain Lined Paper

Products from India: Preliminary Results of Antidumping Duty Administrative Court No. 1:22-cv-00132 Page 3

Review, 86 Fed. Reg. 54,426 (Dep’t of Com. Oct. 1, 2021). As part of its investigation,

Commerce sent Navneet a questionnaire comprised of sections A through D. Navneet

submitted timely responses to each section, attaching the requested supporting

documentation. Navneet Initial Questionnaire Section A Response, J.A. at 80,186–

80,689, ECF No. 43; Navneet Initial Questionnaire Sections B-D Response, J.A. at

80,690–81,346, ECF No. 43.

Each section of the questionnaire focused on a different aspect of Navneet’s

business: Section A focused on Navneet’s overall structure and accounting practices;

Section B requested information about the company’s home market sales; Section C

echoed the questions asked in the prior section but focused on the company’s sales in

the United States; and Section D inquired about Navneet’s costs of production.

Navneet Initial Questionnaire Section A, B, C, D Responses, J.A. at 80,186, 80,695,

80,756, 80,816, ECF No. 43. As part of Section D, Commerce requested Navneet

“provide one computer data file reporting the costs incurred for the merchandise

under consideration. The file should contain per-unit cost information for the

products sold in the U.S. market and the comparison market.” Sec. D Resp. at D-38,

J.A. at 80,853, ECF No. 43. Navneet complied, attaching a cost database listing all

of the products it sold during the period of review, each identified by their unique

control number or “CONNUM.” 1 Sec. D. Resp. at Ex. D-25, J.A. at 81,317–320, ECF

1 “CONNUM” is an acronym for “control number” and denotes a unique product based on

relevant physical characteristics. To ensure that Commerce is comparing like products in the home and U.S. markets, it asks respondents to sort merchandise according to key differentiating categories with each number in the product’s CONNUM corresponding to physical characteristic groupings particular to the merchandise under review. Xi’An Metals & Minerals Imp. & Exp. Co. v. United States, 520 F. Supp. 3d 1314, 1321 n.4 (CIT 2021). Court No. 1:22-cv-00132 Page 4

No. 43. Although Commerce requested physical characteristic information for each

product that appeared in the cost database, the attachment submitted by Navneet

did not include that information. Id. Of the 174 products listed in the cost database,

88 were sold in either the United States or home market and 86 were sold only in

third-country markets, i.e., not the United States or Navneet’s home country of India.

The database also included nine products that were sold, but not produced, during

the period of review — three of which were also products sold only in third-country

markets. Id. Although the questionnaire did not request any information about

products sold only in third countries, Navneet later explained that it included the

data as “part of [Navneet’s] process to do a cost reconciliation[.]” Oral Arg. Tr. at

7:24–25, ECF No. 48. In the column of the database dedicated to the cost of

production, Navneet entered surrogate costs — cost of production data for similar

products that were produced during the period of review — for those nine items that

had been sold but not produced during the period of review. Sec. D. Resp. at Ex. D-

25, J.A. at 81,317–20, ECF No. 43.

On September 27, 2021, Commerce published its Preliminary Results along

with its Preliminary Calculation Analysis Memo. Certain Lined Paper Products from

India: Preliminary Results of Antidumping Duty Administrative Review, 86 Fed. Reg.

54,426 (Dep’t of Com. Oct. 1, 2021); Preliminary Results of Antidumping Duty

Administrative Review of Certain Lined Paper Products from India (2019–2020):

Calculation Analysis of Sales and Cost of Production for Navneet Education Ltd., J.A.

at 82,119, ECF No. 43 (Prelim. Calc. Memo). In its calculation memo, the agency Court No. 1:22-cv-00132 Page 5

explained that it “modified the home market … program to create variables for each

of the eight physical characteristics in the control number (CONNUM) in the cost

database” because those characteristics “are needed … in order for the margin

analysis to find surrogate costs for CONNUMs that were sold but not produced during

the POR.” 2 Prelim. Calc. Memo at 3, J.A. at 82,121, ECF No. 43. In other words, the

agency manually input the physical characteristic data that Navneet failed to provide

with its cost database so that the full pool of products could be considered when

selecting a surrogate for the sold-but-not-produced products. Commerce was able to

extract the information from the CONNUMs, which are a series of numbers

representing the physical characteristics of the associated product. It then selected

“YES” in its computer program to the question of whether the cost data included the

products’ physical characteristics. Id. at Att. 8 Lns. 8298–8301, J.A. at 82,147, ECF

No. 43. This allowed the program to consider each CONNUM in the cost database

and select the product most physically similar to those products sold but not produced

during the period of review. The selected product would then serve as a surrogate for

the orphan products’ cost of production data. Issues and Decision Memorandum

(IDM) at 9, J.A. at 12,537, ECF No. 44. Using all available data, Commerce’s program

calculated a preliminary dumping margin of 18.35%. Certain Lined Paper Products

from India: Preliminary Results of Antidumping Duty Administrative Review, 86

Fed. Reg. 54,426 (Dep’t of Com. Oct. 1, 2021).

2 Period of Review Court No. 1:22-cv-00132 Page 6

On November 8, 2021, Navneet filed a case brief in response to the agency’s

preliminary results. Pl.’s Case Br., J.A. at 12,411, ECF No. 44. Navneet made a

series of claims, including an allegation that Commerce had incorporated an error

into its computer program causing data from products sold only in third countries to

be wrongfully included in the pool of potential surrogates. Id. at 6, J.A. at 12,421.

Navneet traced this error to the toggle in the computer program inquiring whether

the cost database included physical characteristics, which Commerce set to “YES”

despite the company’s not having provided that information in response to the

relevant question. Id. at 8, J.A. at 12,423. Plaintiff claimed that this error led to a

distortion in the final calculation and must be corrected in the Final Results. Id. at

25–26, J.A. at 12,440–41.

Defendant-Intervenor, the Association of American School Paper Suppliers

(the Association), disputed Navneet’s claim that the inclusion of the third-country

cost data was in error. Def.-Int.’s Rebut. Br., J.A. at 82,636, ECF No. 43. Instead, it

argued that the agency’s decision to use the third-country data as a surrogate for the

missing cost of production figures was because those “third-country products more

accurately capture the costs to produce those sold-but-not-produced home market

CONNUMs than any other record information would.” Id. at 10, J.A. at 82,655. This

was consistent with “the overarching goal of the agency’s calculations,” which is to

“produce[] accurate dumping margins[.]” Id. The Association argued that “[t]he

agency cannot pretend that this data is not on the record simply because Navneet

may now wish that it had never submitted it.” Id. Court No. 1:22-cv-00132 Page 7

Commerce published its Final Results on March 29, 2022, assigning Navneet

an increased dumping margin of 20.2%. Certain Lined Paper Products from India:

Final Results of Antidumping Duty Administrative Review, 87 Fed. Reg. 17,989 (Dep’t

of Com. Mar. 29, 2022). In the Final Calculation Memo, the agency once again

answered “YES” to the question asking whether there were “product physical

characteristics in the cost database[.]” Final Calc. Memo at Attach. 7 Lns. 8300–

8303, J.A. at 82,709, ECF No. 43. Commerce responded to Plaintiff’s objections in the

accompanying Issues and Decision Memorandum. See IDM, J.A. at 12,529, ECF No.

44. Commerce explained that use of the third-country data was an intentional

decision designed to ensure the most comparable surrogate costs for the sold-but-not-

produced merchandise. Though it was true that Navneet had not provided the

physical characteristics as part of its cost database, Commerce explained that it was

able to “[extract] physical characteristics from the CONNUMs” Navneet did provide,

which in turn allowed the agency to use “the most comprehensive pool of CONNUMs”

from which to select a surrogate. Id. at 9, J.A. at 12,537. Critically, the agency also

noted that by submitting the larger pool of cost data — including the unrequested

figures for products sold only in third countries — Navneet had entered that

information “on the record of this administrative review.” Commerce saw “no reason

to exclude some or all of these cost records from the pool of potential surrogate costs.”

Id. Using the full database, it found “certain of these CONNUMs that were sold only

in third countries to be the most similar products to the CONNUMs that were sold

but not produced during the [period of review]” — making them the best surrogates Court No. 1:22-cv-00132 Page 8

to use in calculating an accurate dumping margin. Commerce also affirmed that “the

cost components of these third-country CONNUMs … are within the range of the cost

components of the CONNUMs that were sold in the U.S. and home markets.”

Therefore, using them “was not distortive[.]” Id.

Plaintiff responded by filing suit in this Court. Pl.’s Compl., ECF No. 6. It

filed its Motion for Judgment on the Agency Record and accompanying brief on

November 3, 2022. See generally Pl.’s Br., ECF No. 23. Navneet challenged

Commerce’s Final Results, alleging that they were based on (1) “an error of fact and

unannounced change in underlying principles” and (2) a change in Commerce’s

methodology carried out “without notice and a reasonable explanation” that (3)

caused a distortive result. Id. at 18–30. Navneet’s central challenge was to

Commerce’s handling of the small group of covered products that were sold but not

produced during the period of review. Id. at 16. According to Navneet, the error

stemmed from the computer program’s YES/NO toggle for whether the company had

provided physical characteristics with its cost database submission. Id. at 19. When

the toggle is set to “NO,” the program restricts the pool of potential surrogates for

goods that were sold but not produced during the period of review to those products

sold in the U.S. or home markets. When the toggle is set to “YES,” the universe of

potential surrogates is expanded to include products sold only in third countries. Id.

at 20. Navneet contended that, because it did not provide the physical characteristics

with its cost database, it had a reasonable expectation that Commerce would set the Court No. 1:22-cv-00132 Page 9

toggle to “NO” and therefore not consider products sold only in third-country markets

as potential surrogates. Id.

Navneet’s second claim, regarding notice, stemmed from the same allegation.

Namely, Navneet posited that Commerce had an established practice for how it

performed the margin calculation on which parties such as Navneet have come to

rely. Id. at 24–25. It claimed that Commerce’s decision in another administrative

review, Ripe Olives from Spain, establishes the agency’s practice. Plaintiff quoted

the Ripe Olives Issues and Decision Memo where the agency stated that third-country

data was “appropriately excluded” from consideration. Id. at 21 (citing Ripe Olives

from Spain: Results of Antidumping Duty Administrative Review, 2018–2019, 86 Fed.

Reg. 35,068 (Dep’t of Com. July 1, 2021) (Ripe Olives from Spain 2018-2019) and

accompanying IDM at cmt. 9 (June 25, 2021)). Though recognizing that Commerce

is empowered to change its methodology, Navneet argued that, where a method has

become an “established practice,” Commerce is required to provide “notice and an

explanation” before enacting a change. Pl.’s Br. at 24–25, ECF No. 23. Commerce’s

failure to provide such notice made its Final Results in this review arbitrary and

capricious and an abuse of the agency’s discretion.

Navneet finally claimed that the calculation error had a distortive effect on the

company’s dumping margin. Navneet described in detail a variety of factors that

made Commerce’s surrogate selection distortive of the final calculation. Id. at 28–29.

Plaintiff identified:

The fact that the match was to a non-identical CONNUM (different physical characteristics); the length of time Court No. 1:22-cv-00132 Page 10

matching and number of U.S. sales matching to the home- market CONNUM, the eligibility of the matching home- market CONNUM only because of surrogate costs; the monthly margins for the same U.S. CONNUM in other months of the POR, the volume of U.S. sales affected relative to total U.S. sales; and the overall effect in light of Navneet’s history.

Id. at 29. These details did not appear in Navneet’s brief to Commerce. See generally

Pl.’s Case Br. 1–28, J.A. at 12,411–44, ECF No. 44.

On February 1, 2022, the Government filed its response brief. Def.’s Br., ECF

No. 28. Commerce insisted that its calculation in this case was consistent with its

“preference in assigning surrogate costs … to use the most similar product from a

pool of all available CONNUMs with cost information on the record as long as it does

not lead to distortions.” Id. at 16. The agency rejected Navneet’s claim that it had

violated any established practice and that the agency “impermissibly altered [the

computer] program to include Navneet’s third country CONNUM costs.” Id. at 17.

Commerce explained that extrapolating the physical characteristics from available

data and inputting them into the computer program is not a deviation from an

“established practice” but rather is “necessitated because respondents often fail to

properly report product-characteristic information.” Id. at 20. The agency cited two

decision memorandums from other reviews to support its practice. Id. at 19–20; see

also Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of

Korea, 70 Fed. Reg. 12,443 (Dep’t of Com. Mar. 14, 2005) (CORE from Korea 2002-

2003) and accompanying IDM at cmt. 14; Stainless Steel Sheet and Strip in Coils from

Mexico, 76 Fed. Reg. 2,332 (Dep’t of Com. Jan. 13, 2011) (SSSSC from Mexico) and Court No. 1:22-cv-00132 Page 11

accompanying IDM at cmt. 1. Commerce asserted that those decisions confirm that

its priority “in assigning surrogate costs is to select the most similar product from a

pool of all available CONNUMs with cost information on the record[.]” Def. Br. at 18,

ECF No. 28.

The Government also argued that Navneet forfeited its distortion claim by

failing to exhaust its administrative remedies. Id. at 26. Although Navneet’s claim

that Commerce’s calculation had a distortive effect on the company’s dumping margin

appeared in its case brief to the agency, “Navneet [raised] nothing more than

unspecific and vague arguments concerning distortion.” Id. at 27. Meanwhile, in its

brief to this Court, Navneet greatly expanded on that argument, citing “highly

technical and specific” factors that caused the alleged distortion. Id. Commerce

argued that the bare recitation of a conclusory claim regarding distortion before the

agency was not enough to have preserved Navneet’s current argument. Id. at 26–28.

Navneet filed its reply brief on March 17, 2023. Pl.’s Reply Br., ECF No. 31.

It argued that the existence of the toggle inquiring about the presence of physical

characteristic data supported its reliance claim. See id. at 4 (“The YES/NO toggle

makes clear that reporting product physical characteristics in the cost database … is

optional and that Commerce expects to use whatever is reported. There is no other

explanation for the existence of the YES/NO toggle.”). Navneet also once again

directed the Court to Commerce’s decision in Ripe Olives from Spain. Id.

The Association filed its brief on April 4, 2023. Def.-Int.’s Br., ECF No. 37. The

Association fully adopted Commerce’s position and added an explanation of how the Court No. 1:22-cv-00132 Page 12

agency was able to extract the physical characteristics data. Id. at 1. Because

Plaintiff’s cost database included the CONNUM for each product, and CONNUMs are

a series of numbers that correspond to those physical characteristics, Commerce

simply used those numbers to reverse engineer the relevant physical characteristic

data. Id. at 5–6. By incorporating that data, it was able to identify “the products

most physically similar to the sold-but-not-produced home-market CONNUMs for

which costs were not available on the record” and calculate “an accurate assessment

of the cost to produce” those goods. Id. at 9. To the Association, Navneet’s position

that a company’s failure to provide requested information should require “the agency

to both ignore record evidence and to make adjustments favorable to the respondent”

was an absurd interpretation of the law. Id. at 8. Instead, the Association asserted

that Commerce is well within the bounds of its discretion when it makes a reasonable

methodological decision that achieves its mandate. Id. at 7.

On July 17, 2023, the Government submitted a letter requesting the Court take

judicial notice of the cover page of Commerce’s website to which Plaintiff cited

multiple times in its brief. Def.’s Ltr. to Court, ECF No. 45. It requested that the

Court take judicial notice of the statement made on Commerce’s website regarding

its use of the Antidumping Margin Calculation Program:

On this page you will find the generic antidumping (AD) margin calculation programs. These programs are the starting point of our AD calculations. For a particular company in a proceeding, a case analyst will modify the boilerplate code as required for their case. Court No. 1:22-cv-00132 Page 13

Id. at 2–3; see also Antidumping Margin Calculation Programs,

https://access.trade.gov/resources/sas/programs/amcp.html, last visited December 29,

2023. According to the Government, the disclaimer language precluded any reliance

interests Navneet might claim. Oral Arg. Tr. at 58:13–25, ECF No. 48; see also Def.’s

Ltr. to Court, ECF No. 45.

The Court held oral argument on July 20, 2023. ECF No. 46. The Court

granted Commerce’s unopposed request to take judicial notice of the cover page of

Commerce’s website as well as any information contained on the same website and

cited in Plaintiff’s brief. Oral Arg. Tr. at 6:20–21, ECF No. 48. The Court asked what

Navneet felt the disclaimer regarding Commerce’s intention to “modify the

boilerplate code as required for [each] case” meant for its reliance argument. Id. at

58:5–59:1. Counsel responded that, though the disclaimer provides reasonable notice

that Commerce will make certain adaptations to their program, the agency cannot

“change the record in the case,” which counsel contended “they did here.” Id. at 59:8–

13.

Plaintiff’s counsel argued that Commerce’s calculation and the manner in

which it reached its conclusion were arbitrary because they violated what Navneet

had reasonably relied on: “predictable treatment[.]” Counsel observed that

“Navneet’s been in nine prior reviews where it reported the information in the same

way” and that, in those prior reviews, the company “did not report physical

characteristics” and received dumping “margins from zero to less than three

percent[.]” Id. at 31:14–20. The Court noted, however, that Plaintiff failed to enter Court No. 1:22-cv-00132 Page 14

those prior administrative reviews onto the record or to raise this prior treatment

argument in its briefs to the Court. Id. at 32:5–12. Instead, Navneet focused on the

way Commerce operated its computer program. See Pl’s Br. at 18–20, ECF No. 23;

Pl.’s Reply Br. at 2, ECF No. 31.

The Court next sought to determine whether Navneet had forfeited its

distortion claim. Plaintiff’s counsel insisted that the single paragraph proffering a

general distortion claim in Navneet’s case brief to the agency was sufficient to put

Commerce on notice of that argument because “the bar is low” for what a Plaintiff

must raise at the administrative level in order to satisfy the exhaustion doctrine.

Oral Arg. Tr. at 68:6–14, ECF No. 48. Navneet further argued that Commerce’s

addressing of the distortion argument in its Issues and Decision Memorandum

proved that Commerce was sufficiently on notice of the issue. Id. at 69:8–16.

Commerce responded that Federal Circuit precedent “explains that perfunctory

arguments that are not developed are simply not sufficient to exhaust administrative

remedies.” Id. at 72:5–10. Plaintiffs “have a responsibility to raise these issues in

developed arguments, as the Federal Circuit has explained, not in general assertions

of distortion.” Id. at 73:14–17. Commerce conceded, however, that it had not

addressed the merits of Navneet’s distortion claim in its brief before the Court. Id.

at 74:3–7 (when asked by the Court whether Commerce had included a substantive

argument against distortion in its brief, responding “No, Your Honor.”). Commerce

suggested that, should the Court reach the merits, it may still rule on the question

as a matter of law. Id. at 74:12–16. The parties agreed that there is no federal statute Court No. 1:22-cv-00132 Page 15

or regulation that outlines the criteria for a “distortion” test or claim. Instead, there

exists a thirty-year-old Policy Bulletin in which the word “distortion” is used twice in

a discussion about “when to make and how to quantify adjustments for differences in

merchandise[.]” Id. at 70:6–19; Int. Trade Admin., Policy Bull. 92.2, Differences in

Merchandise; 20% Rule (Jul. 29, 1992).

With the positions of the parties clarified, the Court now turns to the merits of

their contentions.

JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over Plaintiff’s challenge to the Final Results under

19 U.S.C. § 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c), which grant the Court authority

to review actions contesting final determinations in antidumping reviews. The Court

must sustain Commerce’s “determinations, findings, or conclusions” unless they are

“unsupported by substantial evidence on the record, or otherwise not in accordance

with the law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Where they fail to meet that standard,

the Court must “hold unlawful any determination, finding, or conclusion found.” Id.

As this Court has articulated, “the question is not whether the Court would have

reached the same decision on the same record[;] rather, it is whether the

administrative record as a whole permits Commerce’s conclusion.” See New American

Keg v. United States, No. 20–00008, 2021 WL 1206153, at *6 (CIT Mar. 23, 2021).

Furthermore, “the possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding from being supported Court No. 1:22-cv-00132 Page 16

by substantial evidence.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,

933 (Fed. Cir. 1984).

In reviewing agency determinations, findings, or conclusions for substantial

evidence, the Court assesses whether the agency action is reasonable given the record

as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir.

2006); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The

substantiality of evidence must take into account whatever in the record fairly

detracts from its weight.”). The Federal Circuit has described “substantial evidence”

as “such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” DuPont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed.

Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

DISCUSSION

I. SUMMARY

Commerce’s mandate is to calculate the most accurate dumping margin

possible. Taian Ziyang Food Co. v. United States, 37 CIT 947, 956 (2013); Louyang

Bearing Corp. v. United States, 28 CIT 733, 762 (2004). The data it relies on to

achieve this is the administrative record, which is comprised of the information that

interested parties submit in response to the agency’s questionnaires. QVD Food Co.

Ltd. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011); Macao Commer. & Indus.

Spring Mattress Mfr. v. United States, 437 F. Supp. 3d 1324, 1332 (CIT 2020). The

Court is often called on to assess whether Commerce was sufficiently accurate in its

calculations or whether it employed a permissible methodology — challenges to the Court No. 1:22-cv-00132 Page 17

accuracy of Commerce’s Final Results. In this case, however, it is undisputed that

Commerce analyzed the entire record, selected the most accurate data submitted by

Plaintiff, and used that information to calculate an accurate dumping margin. Oral

Arg. Tr. at 22:13–14, ECF No. 48. Plaintiff instead asks the Court to restrict

Commerce from using data Navneet voluntarily submitted in order to yield a less

accurate margin but one that is more favorable to Navneet. The Court declines to do

so.

Navneet makes two principal arguments for why it believes Commerce’s Final

Results must be remanded, neither of which are availing. First, Navneet attempts to

frame Commerce’s methodology as a simple computer error, whereby the agency

selected “YES” rather than “NO” on its program, leading to an algorithmic mistake.

Pl.’s Br. at 18–19, ECF No. 23. However, as the agency explained, the selection of

“YES” was not an error but instead reflected that Commerce was able to find the

information it needed from elsewhere in the record and input it into the computer

program. IDM at 9, J.A. at 12,537, ECF No. 44; Oral Arg. Tr. at 88:23–89:3, ECF No.

48.

Second, Navneet claims that Commerce’s use of voluntarily submitted record

information constituted a change in methodology and required the agency to notify

the company of its intentions before using the data. Pl.’s Br. at 24–25, ECF No. 23.

Instead of pointing to its own prior administrative reviews and Commerce’s past

treatment of its submissions, Navneet builds its reliance argument on a general claim

regarding the agency’s methodology. Oral Arg. Tr. at 31:24–32:15, ECF No. 48. The Court No. 1:22-cv-00132 Page 18

case on which Navneet relies, however, fails to support its claim. Because Commerce

used record information to select the best surrogate data and to calculate the most

accurate dumping margin, the Court declines to disrupt the agency’s findings.

II. SUBSTANTIVE BACKGROUND

When conducting administrative reviews of antidumping orders, Commerce

compares the value of identical products being sold in the U.S. (export price) and the

company’s home market (normal value). If no identical products exist, Commerce

instead compares the most similar products. Where that comparison reveals that the

normal value of the product exceeds its export price, the amount by which the figures

differ is the “dumping margin.” 19 U.S.C. § 1677(35)(A); see also 19 C.F.R. §

351.401(a).

To conduct this comparison, Commerce must first select products sold in the

U.S. and the home market to compare. Those products ideally will be identical or at

least only differ in commercially non-significant ways. However, in the event that

the products are not identical and the physical differences between those products

have “an effect on prices[,]” Commerce must “make a reasonable allowance for such

differences.” 19 C.F.R. § 351.411. Federal regulations require the agency to “consider

only differences in variable costs associated with the physical differences.” Id. Those

regulations do not prescribe any particular method for Commerce to identify the

foreign like product. Courts have interpreted this as a delegation of authority to the

agency to choose how to carry out its mandate. New World Pasta Co. v. United States,

28 CIT 290, 305–06 (2004) (citing Pesquera Mares Australes, Ltda. v. United States, Court No. 1:22-cv-00132 Page 19

266 F.3d 1372, 1384 (Fed. Cir. 2001) and Koyo Seiko Co. v. United States, 66 F.3d

1204, 1209 (Fed. Cir. 1995)). In exercise of that authority, Commerce has decided to

select the most similar product being sold in the home market based on “a hierarchy

of commercially significant characteristics suitable to each class or kind of

merchandise.” Fagersta Stainless AB v. United States, 32 CIT 889, 893 (2008).

When a non-identical foreign like product must be used as a comparator,

Commerce adjusts the normal value to account for the differences in cost that are

attributable to the commercially significant differences in physical characteristics.

Id. at 899. This is referred to as the “difference in merchandise” adjustment or

“DIFMER.” Id. In order to ensure that the products are similar enough to offer an

accurate comparison, the agency employs a “20% guideline,” which holds that, where

“the variable cost difference exceeds 20%, [Commerce] consider[s] that the probable

differences in values of the items to be compared [are] so large that they cannot

reasonably be compared.” Int. Trade Admin., Policy Bull. 92.2, Differences in

Merchandise; 20% Rule (Jul. 29, 1992). The question of whether the cost difference

between products exceeds 20% is referred to as the “DIFMER test.”

All the product data — costs, prices, and physical characteristics — that

Commerce uses in performing its calculations come from the parties. The agency

gathers the information through a series of questionnaires sent to respondent

companies along with requests for supporting documentation. Together, the

companies’ submissions constitute the record that Commerce uses to conduct its

analysis and determine the dumping margin. Commerce’s must “determine Court No. 1:22-cv-00132 Page 20

antidumping margins as accurately as possible,” and it must use its discretion in

choosing a methodology to achieve that purpose. Taian Ziyang Food Co., 37 CIT at

956 (internal quotations omitted).

III. COMMERCE’S ALLEGED PROGRAMMING ERROR

Navneet argues that, in calculating the company’s dumping margin,

Commerce departed from its established practice and incorporated a factual error

into its computer program. Pl.’s Br. at 18, ECF No. 23. Plaintiff claims the agency

has established, through its publicly available margin calculation program, that

products sold only in third countries will be excluded from the universe of potential

surrogates if the respondent company does not provide physical characteristic

information with its cost data. Id. Navneet says it “conform[ed] its pricing behavior

to the methodologies in Commerce’s standard margin-calculation programs,” but the

agency changed its methodology without notice and manually input data that it was

able to extract so that its program could include third-country products as potential

surrogates for the differences-in-merchandise test. Id. at 17–18. By modifying how

it used its computer program and considering information Navneet did not intend to

be part of the calculation, Navneet asserts that Commerce’s actions lack substantial

evidentiary support. Id. at 18.

In response, the Government asserts that Navneet’s allegation is based on a

misstatement of Commerce’s practice. Rather than adopting any rule regulating

which potential surrogate products contained within the record may be considered,

the Government argues that Commerce’s practice is to “use the most similar product Court No. 1:22-cv-00132 Page 21

from a pool of all available CONNUMs with cost information on the record as long as

it does not lead to distortions.” Def.’s Resp. at 16, ECF No. 28. The Government cites

Commerce’s Issues and Decision Memorandums in two other recent investigations —

CORE from Korea 2002-2003 and Certain Frozen Warmwater Shrimp from Thailand

— to support its position. In both of those cases, Commerce explained its practice as

“choos[ing] the most similar product produced during the period of review” without

any restriction based on “the market in which the product was subsequently sold.”

Id. at 13–14 (quoting CORE from Korea 2002-2003, 87 Fed. Reg. 20,815 and

accompanying IDM at cmt. 14 and Certain Frozen Warmwater Shrimp from

Thailand, 82 Fed. Reg. 30,836 (Shrimp from Thailand) and accompanying IDM at

cmt. 3.).

Commerce addressed Navneet’s objections in its Issues and Decision

Memorandum and explained its decision to use the third-country data. Cost of

production data is necessarily missing for products that were sold but not produced

during the period of review, as Commerce strictly limits its analysis to actions that

occurred during the review period. “[B]ecause the cost of production information is

unavailable, [Commerce] assign[s] costs to those products by selecting a similar

product, based on the hierarchy of product characteristics established in the

CONNUM[.]” IDM at 8, J.A. at 12,536, ECF No. 44. Its “preference in assigning

surrogate costs is to select the most similar product from a pool of all available

CONNUMS with cost information on the record[.]” Id.; see also 19 C.F.R. §

351.408(c)(3). Although it is undisputed that Navneet did not provide the agency Court No. 1:22-cv-00132 Page 22

with the physical characteristics of the products as part of its cost database, it is also

undisputed that Plaintiff did place the control numbers in question on the record as

part of its submissions to Commerce. IDM at 9, J.A. at 12,537, ECF No. 44. Because

control numbers are merely numerical stand-ins for a product’s physical

characteristics, it did not take much for Commerce to compare the products’

characteristics to those of the products needing comparators.

The Plaintiff bears the burden to build the record. QVD Food Co. Ltd., 658

F.3d at 1324; Macao Commer. & Indus. Spring Mattress Mfr., 437 F. Supp. 3d at

1332. Here, Navneet asks the Court to order Commerce to ignore information it

voluntarily put on the record. This the Court will not do. Both the Court and the

agency are under a duty to consider the record as a whole. Compare 19 U.S.C. §§

1516a(b)(1)-(2) (limiting review to the record before the agency and establishing what

constitutes that record), and Nippon Steel Corp., 458 F.3d at 1350–51 (requiring

review of the entire record), with Cheng Shin Rubber Ind. Co. v. United States, No.

21-00398, 2023 Ct. Intl. Trade LEXIS 19, at *29 (2023) (finding that it would be legal

error for Commerce to “refuse to consider evidence bearing on the issue before it”)

(citation, alteration, and internal quotation marks omitted).

No party disputes the accuracy of the physical characteristic data that

Commerce used. Nor does any party dispute that the comparator Commerce chose is

the product whose physical characteristics are closest to the products that were sold

but not manufactured during the period of review. Oral Arg. Tr. at 22:13–14, ECF

No. 48 (“[W]e don’t necessarily dispute that that CONNUM is the closest match.”). Court No. 1:22-cv-00132 Page 23

What Plaintiff asks of the Court therefore is to order the Commerce Department to

disregard the best available comparator data on the record in favor of using another,

less similar product. That, in turn, will result in a less accurate dumping margin but

one that happens to be more favorable to Navneet. The request answers itself. Cf.

Zhejiang Native Produce & Animal By-Products Imp. & Exp. Corp. v. United States,

27 CIT 1827, 1853 (2007) (“It is well-established that Commerce enjoys wide

discretion in valuing the factors of production …. However, despite the broad latitude

afforded Commerce and its substantial discretion in choosing the information it relies

upon, the agency must act in a manner consistent with the underlying objective of 19

U.S.C. § 1677b(c) — to obtain the most accurate dumping margins possible.”)

(internal quotation marks and citations omitted). Because Commerce relied on record

information whose accuracy is undisputed in selecting among the proper comparators

to determine the cost of production, Commerce did not commit a factual error in

answering “YES” to the question of whether product characteristic information was

provided.

IV. FAILURE TO PROVIDE NOTICE

The crux of Navneet’s objection is not really that Commerce made a factual

error but rather that it changed its standard operating procedure without notice in a

way that harmed Navneet. Plaintiff argues that, before considering cost information

for products sold only in third countries, Commerce was required to give the company

notice of its intention. Pl.’s Br. at 24–25, ECF No. 23. Navneet points to its thirteen

prior administrative reviews with dumping margins under three percent as evidence Court No. 1:22-cv-00132 Page 24

of its “extraordinarily long track record of conforming its pricing behavior to the

standards of U.S. trade law.” Id. at 26. Although Navneet failed to enter those

administrative records from prior reviews onto the record in this case, the company

attempts to buttress its established practice argument by citing to the administrative

review of a different order, where Commerce stated that third-country data was

“appropriately excluded” from consideration. Id. at 24–25; see also Ripe Olives from

Spain 2018–2019, 86 Fed. Reg. 35,068 and accompanying IDM at cmt. 9. To Navneet,

the 22% dumping margin here is all the proof needed to show that it was caught

unaware by a change in methodology.

Commerce responds by reiterating that its inclusion of third-country products

“constitutes neither a change in methodology nor a departure from established

practice.” Def.’s Br. at 22, ECF No. 28. Citing to numerous opinions issued by the

agency in other investigations, the Government explains that “Commerce’s practice

is to consider all CONNUMs on the record, including third-country CONNUMs” in

its effort to select “the most similar product[.]” Id. at 22–23; see also CORE from

Korea 2002-2003, 87 Fed. Reg. 20,815 and accompanying IDM at cmt. 14; Shrimp

from Thailand, 82 Fed. Reg. 30,836 and accompanying IDM at cmt. 3; SSSSC from

Mexico, 76 Fed. Reg. 2,332 and accompanying IDM at cmt. 1.

In the alternative, Commerce argues that it satisfied any notice requirement

by providing Navneet “with notice and the opportunity to comment before the final

determination [was] made.” Def.’s Br. at 23, ECF No. 28 (citing Koyo Seiko Co., Ltd.

v. United States, 31 CIT 1512, 1520 (2007) and SeAH Steel Corp. v. United States, 34 Court No. 1:22-cv-00132 Page 25

CIT 605, 618 (2010)). Navneet availed itself of the opportunity to comment, and

Commerce provided adequate consideration and explanation of its decision in its

Issues and Decision Memorandum. Compare Pl.’s Case Br. at 3, J.A. at 12,418, ECF

No. 44 (raising the alleged methodological error for Commerce’s consideration before

publication of the Final Results), with IDM at cmt. 1, J.A. at 12,533–37 (Commerce’s

response). Thus, according to the Government, Navneet received all the notice and

process to which it was entitled.

First, it is important to note the state of the record in this case, as the Court is

constrained by law to review only that record. 19 U.S.C. § 1516a(b)(2); see also Swiff-

Train Co. v. United States, 793 F.3d 1355, 1359 (Fed. Cir. 2015) (“This court’s review

is limited to the record before the Commission in the particular proceeding at issue

and includes all evidence that supports and detracts from the Commission’s

conclusion.”) (citing Sango Int’l L.P. v. United States, 567 F.3d 1356, 1362 (Fed. Cir.

2009)). Although Navneet points to the results of its prior administrative reviews, it

failed to put any of those reviews on the record of this case. Pl’s Case Br. at Ex. 1,

J.A. at 12,444, ECF No. 44 (exhibit listing rates from prior administrative reviews

but containing no other information); see also Pl.’s Br. at 26, ECF No. 23. The Court

is therefore unable to determine if the third-country product information Navneet

provided in this case is the same as that it alleges it provided — and Commerce

ignored — in those prior reviews. Further, before the agency, Navneet focused on the

alleged factual error Commerce committed by telling its computer program that the

necessary product characteristic information was on the record. Commerce’s Court No. 1:22-cv-00132 Page 26

practices regarding Navneet’s prior reviews were left unasserted. See Pl.’s Case Br.

at 3–9, J.A. at 12,418–12,424, ECF No. 44. Thus, the Court may not address

arguments regarding any expectations Commerce may have established with

Navneet concerning what record evidence it would and would not consider. Qingdao

Sea-Line Trading Co., Ltd. v. United States, 36 CIT 451, 470 (2012) (“[W]hen a party

fails to make an argument in proceedings below, the argument is [forfeited].”)

(internal citations omitted).

Second, Navneet did preserve its arguments regarding the application of the

Ripe Olives decision and whether that precedent established a policy on which

Navneet reasonably relied. Navneet cites to a specific phrase — that data from

products sold only in third countries was “appropriately excluded” — found in

comment nine of Commerce’s Issues and Decision Memorandum to argue that the

agency’s policy in selecting surrogate data is to exclude third-country product

information. Ripe Olives from Spain 2018–2019, 86 Fed. Reg. 35,068 and

accompanying IDM at cmt. 9. However, comment nine is not applicable. It addresses

petitioner’s claim that the respondent company failed to provide third-country

product information in its cost database, constituting non-cooperation warranting the

application of an adverse inference. Id. Commerce’s discussion of the inclusion or

exclusion of third-country data in Ripe Olives is thus about whether the omission

required drawing an adverse inference, not about whether an agency will ignore

information a party voluntarily submitted. Court No. 1:22-cv-00132 Page 27

Conversely, Commerce’s citation does speak directly to the question at hand.

In Shrimp from Thailand, comment three of the Issues and Decision Memorandum

addresses the respondent’s concern that Commerce used its entire cost database —

including information for third-country products — rather than a separate version of

the database that excluded third-country products. Shrimp from Thailand, 82 Fed.

Reg. 30,836 and accompanying IDM at cmt. 3. The company, like Navneet here,

argued that Commerce “should consider … only the costs for products … sold in the

home market or United States[.]” Commerce declined to do so and instead used the

more comprehensive database, explaining that “it is the Department’s practice in

assigning surrogate costs … to use the most similar product available.” Id. The

weight of past practice cited supports Commerce.

Third, Navneet was not without notice about Commerce’s intentions.

Commerce’s Preliminary Results used the same surrogate selection process as that

ultimately adopted in the Final Results and explained in the Issues and Decision

Memorandum. Navneet was able to lodge any objections it wished to Commerce’s

method of selecting the most similar product for cost comparison. It took advantage

of the opportunity, and Commerce adequately responded to its concerns. See supra §

III. Navneet’s reliance on the publicly available computer programming language

was unreasonable. Next to that language was a disclaimer that explained the

provided language was merely a “starting point” and that “a case analyst will modify

the boilerplate code as required for their case.” Antidumping Margin Calculation

Programs, https://access.trade.gov/resources/sas/programs/amcp.html, last visited Court No. 1:22-cv-00132 Page 28

December 29, 2023. Thus, the only thing Navneet could rely on regarding the

computer programming language was that it was liable to change on a case-by-case

basis.

That leaves the question of whether Commerce should have provided Navneet

with notice of its intention to use third-country data sooner than when it did, i.e.,

before Navneet voluntarily provided the data. Although agencies are empowered to

employ new or altered methods, they must provide adequate notice to interested

parties before doing so. “[P]rinciples of fairness prevent Commerce from changing its

methodology” at too late a stage. Shikoku Chems. Corp. v. United States, 16 CIT 382,

388 (1992). To adjudicate such a claim, the Court would need to review evidence

regarding what information Navneet placed on the record in prior administrative

reviews and compare that to what evidence Commerce used here in its differences-

in-merchandise analysis. Navneet unfortunately did not place any such evidence on

the record, and the one decision it did place on the record — Ripe Olives — does not

support its position. Because the record evidence does not reflect that Commerce

changed its practice of using the best available data to find the closest comparator for

its cost calculations and because the agency notified Plaintiff of what data it intended

to use and considered Plaintiff’s objections to it, the Court must SUSTAIN

Commerce’s determination.

V. DISTORTION

28 U.S.C. § 2637(d) instructs that “in any civil action … the Court of

International Trade shall, where appropriate, require the exhaustion of Court No. 1:22-cv-00132 Page 29

administrative remedies.” In the case of administrative reviews, parties challenging

the final results of an investigation “must” submit case briefs to the agency that

“present all arguments that continue in the submitter’s view to be relevant to

[Commerce’s] final determination or final results.” 19 C.F.R. § 351.309(c)(2). The

purpose of this requirement is threefold. First, the rule “recognizes that an agency

ought to have an opportunity to correct its own mistakes with respect to the programs

it administers before it is haled into federal court.” Ellwood City Forge Co. v. United

States, 582 F. Supp. 3d 1259, 1272 (CIT 2022) (internal quotations omitted). Second,

exhaustion “promotes judicial efficiency because it requires parties to make

arguments first before the agency that the agency may then moot before they reach

court.” Id. Third, where the issue is not resolved at the administrative level,

“exhaustion still produces a useful record for subsequent judicial consideration,

especially in a complex or technical factual context.” Id. (internal quotations

omitted).

In its case brief before the agency, Navneet claimed that the method by which

the agency calculated the company’s dumping margin had a distortive effect. Pl.’s

Case Br. at 25–26, J.A. at 12,440–441, ECF No. 44. In support of that allegation,

Navneet offered only a single paragraph consisting of three sentences with no

mention of the specific factors it believed were at the root of the alleged distortion.

Id. Navneet’s distortion argument before the agency is reproduced in full below:

As discussed above, Navneet’s margin is de minimis when the cost database used in assigning surrogate costs to sold- not-produced products is limited to those control numbers also found in the U.S. or Comparison Market sales Court No. 1:22-cv-00132 Page 30

database. Because the Department did not limit the cost database in this review, the entire cost database was used for these purposes, which resulted in a significant margin for Navneet (18.3 percent). Very clearly, the Department’s inadvertent methodology led to distorted results.

Id. The Issues and Decision Memorandum considered whether Commerce’s choice of

a third-country product as the appropriate cost comparator had a distortive effect.

IDM at 5–9, J.A. at 12,533–37, ECF No. 44. Commerce explained its decision to

continue to include the third-country product data, as it:

was not distortive because the cost components of these third-country CONNUMs (direct materials, labor, fixed and variable overhead, packing, etc.) are within the range of the cost components of the CONNUMS that were sold in the U.S. and home markets, which indicates that the third- country CONNUMs have a similar cost structure as the CONNUMs sold in the U.S. and home markets.

Id. at 9, J.A. at 12,537. Commerce’s explanation reflects the position it voiced later

at oral argument that whether a method is distortive is a question of how similar a

surrogate product is in commercially significant ways. Oral Arg. Tr. at 70:9, 71:1–5,

ECF No. 48.

In its brief to this Court, Navneet again raised the issue of distortion — this

time with tremendous specificity, spanning several pages, and describing precisely

what it believed caused the distortion. Pl.’s Br. at 28–30, ECF No. 23 (listing

“different physical characteristics … the length of time matching and number of U.S.

sales matching to the home market … the eligibility of the matching home market-

CONNUM … the monthly margins for the same U.S. CONNUM in other months of

the POR, the volume of U.S. sales affected relative to total U.S. sales” as some of the Court No. 1:22-cv-00132 Page 31

causes of the alleged distortion). None of the information contained in Navneet’s

court brief was unknown at the time it submitted its case brief to the agency. Oral

Arg. Tr. at 73:6–9, ECF No. 48.

The Government asserts that the “unspecific and vague arguments” that

appeared in Navneet’s case brief were not enough to preserve the claim, which now

appears with “highly technical and specific” arguments raised for the first time before

the Court. Def.’s Br. at 27, ECF No. 28. According to Commerce, Navneet’s omission

deprived the agency of the “opportunity to address those arguments on the record”

and “impeded judicial review because this Court has no record of the agency’s

consideration and resolution of these issues.” Id. at 28. Although Commerce provides

a lengthy discussion of why it believes Navneet forfeited its distortion claim, it fails

to offer any substantive response in the alternative. At oral argument, Commerce

conceded that it focused its brief exclusively on its forfeiture argument but

maintained that, should the Court find that the issue has not been forfeited, the Court

could still deny Navneet’s claim as a matter of law. Oral Arg. Tr. at 74:3–16, ECF

No. 48.

As noted above, there is no statutory or regulatory test for “distortion.” The

concept rests on the thirty-year-old Policy Bulletin, which is itself lacking in specifics

regarding the analysis to be undertaken. Int. Trade Admin., Policy Bull. 92.2,

Differences in Merchandise; 20% Rule (Jul. 29, 1992). At oral argument, it became

clear that the parties disagree about what questions the agency must ask in its

assessment of whether its methodology has been “distortive” and at what stage those Court No. 1:22-cv-00132 Page 32

questions should be asked. Navneet argues that Commerce is required to consider

whether its methodology has been distortive both “before and then after” it conducts

its calculations, considering both the data it puts into the equation and the resulting

figure to see if it “looks very aberrational.” Oral Arg. Tr. at 63:16–64:6, ECF No. 48.

Meanwhile, Commerce posits that the differences-in-merchandise test is its tool for

determining whether its choice of comparators has been distortive. For support,

Commerce referred the Court to its Policy Bulletin 92.2, which discuses “distortion”

in the context of the DIFMER test. Id. at 70:6–19; 3 see also Int. Trade Admin., Policy

Bull. 92.2, Differences in Merchandise; 20% Rule (Jul. 29, 1992). This, according to

Commerce, illustrates that its mandate to select a methodology that is not distortive

and the DIFMER test are “one and the same.” Oral Arg. Tr. at 70:9, 71:1–5, ECF No.

48. If the cost differences do not breach the twenty percent threshold, there is no

distortion. Int. Trade Admin., Policy Bull. 92.2, Differences in Merchandise; 20% Rule

(Jul. 29, 1992).

Before the Court can answer this question, it must first ask if Navneet has

properly preserved its objection. There is a fine line between a situation in which

“plaintiff’s brief statement of the argument is sufficient … [to] alert the agency to the

argument with reasonable clarity and avails the agency with an opportunity to

address it” and one in which plaintiff attempts to “circumvent the requirements of

the doctrine of exhaustion by merely mentioning a broad issue without raising a

3 In the cited portion of the transcript, counsel for the Government mistakenly referred to

Policy Bulletin 19.2 but later, at Oral Arg. Tr. at 71:10–14, ECF No. 48, corrected her error, explaining that she meant Policy Bulletin 92.2. Court No. 1:22-cv-00132 Page 33

particular argument[.]” Luoyang Bearing, 28 CIT at 761. Navneet falls on the wrong

side of the line.

Though Navneet is correct that a Plaintiff need not have presented its

argument “in exactly the same words before the Agency” in order to preserve its claim,

the standard for exhaustion requires more than vague, conclusory statements. Oral

Arg. Tr. at 68:23–69:2, ECF No. 48. Three sentences of vague allegations of distortion

represent a far different claim from two full pages of argument laying out with

specificity multiple alleged failures. As the Federal Circuit has explained, when a

party fails to raise a particular argument before the agency, that argument is

forfeited. It would be “unjust to the [agency] and wasteful of public resources to allow

[Plaintiff] to belatedly raise the argument” for the first time before the Court. Rhone

Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990) (rejecting a party’s

attempt to raise an argument for the first time because “it is simply another angle to

an issue which it did raise”) (emphasis in original).

What Navneet put Commerce on notice of was its belief that the choice of a

third-country product as a cost comparator had some unspecified distortive effect on

the final calculation of Navneet’s dumping margin. Pl.’s Case Br. at 25–26, J.A. at

12,440–441, ECF No. 44. Commerce adequately addressed that concern in its

decision and provided sufficient support for its continued use of the selected

comparator product — including an express finding that the choice was not distortive.

IDM at 5–9, J.A. at 12,533–37, ECF No. 44. Whether intentional or not, Navneet

launched a surprise attack against the agency by turning a three-sentence argument Court No. 1:22-cv-00132 Page 34

before Commerce into a multi-page attack in court. Given the lack of statutory or

regulatory standards, it would be vital to have Commerce’s explanation of its policy,

past practice, and response to Navneet’s now very specific objections. See Ellwood

City, 582 F. Supp. 3d at 1282 (noting the exhaustion doctrine promotes the creation

of a record before the agency suitable for judicial review). No explanation of

Commerce’s position exists in the record because there was no such argument to

which to respond. Congress does not “hide elephants in mouseholes.” Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Litigants should not either. An

undeveloped claim made before an agency — or a court — is forfeited. Qingdao Sea-

Line Trading, 36 CIT at 470–71. Commerce responded to Navneet’s three sentence

argument with an appropriate answer supported by substantial evidence. Because

vague, unsupported allegations do not serve to preserve a later hyper-specific,

technical claim, Navneet has forfeited its remaining arguments by failing to exhaust

its administrative remedies.

CONCLUSION

Navneet’s objections have morphed between the agency and the Court. Before

the agency, Navneet focused on whether Commerce correctly programed its computer

language and the application of certain discrete prior administrative reviews to the

facts of Navneet’s case. Though still pressing those claims, Navneet now wishes to

pivot and aggressively press claims that Commerce violated settled expectations

created in Navneet’s past administrative reviews and that Commerce’s choice of

comparator was distortive. The problem is that Navneet did not enter those prior Court No. 1:22-cv-00132 Page 35

reviews onto the record so that the Court may not weigh the validity of its invocation

of past practice. Nor may the Court allow Navneet to take an undeveloped, three-

sentence argument before the agency and turn it into the main event before the Court.

Against the objections Navneet did raise, the Court SUSTAINS Commerce’s decision

as supported by substantial evidence. Plaintiff’s Motion for Judgment on the Agency

Record is therefore DENIED.

/s/ Stephen Alexander Vaden Stephen Alexander Vaden, Judge

Dated: December 29, 2023 New York, New York