An Giang Fisheries Import & Export Joint Stock Co. v. United States

203 F.Supp.3d 1256

AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY, et al., Plaintiffs and Consolidated Plaintiffs,andAnvifish Joint Stock Company, et al., Plaintiff–Intervenors and Consolidated Plaintiff–Intervenors,

v. UNITED STATES, Defendant,andCatfish Farmers of America, et al., Defendant–Intervenors and Consolidated Defendant–Intervenors.

Slip Op. 17–4

Consol. Court No. 15–00044

United States Court of International Trade.

Dated: January 23, 2017

Matthew Jon McConkey , Mayer Brown LLP, of Washington, DC, argued for plaintiffs An Giang Fisheries Import and Export Joint Stock Company et al.

Ned Herman Marshak and Andrew Thomas Schutz , Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY and Washington, DC, argued for consolidated plaintiffs, plaintiff-intervenors and consolidated plaintiff-intervenors Anvifish Joint Stock Company et al. and Can Tho Import–Export Joint Stock Company. With them on the briefs were Andrew Brehm Schroth and Dharmendra Narain Choudhary .

Kara Marie Westercamp , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Ryan Michael Majerus , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Franklin E. White, Jr. , Assistant Director. Of Counsel on the brief were Nanda Srikantaiah and Mercedes C. Morno , Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Nazakhtar Nikakhtar and Jonathan Mario Zielinski , Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for defendant-intervenors and consolidated defendant-intervenors Catfish Farmers of America et al.

OPINION AND ORDER

Kelly, Judge:

This consolidated action is before the court on USCIT Rule 56.2 motions for judgment on the agency record challenging various aspects of the U.S. Department of Commerce's ("Department" or "Commerce") final determination in the tenth administrative review of the antidumping duty order covering certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam"). See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam , 80 Fed. Reg. 2,394 (Dep't Commerce Jan. 16, 2015) (final results of antidumping duty administrative review; 2012–2013) ("Final Results "), and accompanying Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Memorandum for the Final Results of the Tenth Antidumping Duty Administrative Review; 2012–2013, Apr. 6, 2015, ECF No. 20 ("Final Decision Memo"); see also Certain Frozen Fish Fillets from the Socialist Republic of Vietnam , 68 Fed. Reg. 47,909 (Dep't Commerce Aug. 12, 2003) (notice of antidumping duty order).

Plaintiffs An Giang Fisheries Import and Export Joint Stock Company, Asia Commerce Fisheries Joint Stock Company, Cuu Long Fish Joint Stock Company, Hiep Thanh Seafood Joint Stock Company, International Development and Investment Corporation, NTSF Seafoods Joint Stock Company, Thuan An Production Trading and Services Co., Ltd., and Vinh Quang Fisheries Joint Stock Company (collectively "Agifish") commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2012).¹ See Summons, Feb. 13, 2015, ECF No. 1. The court consolidated Agifish's case with actions filed by: (1) Anvifish Joint Stock Company, Asia Commerce Fisheries Joint Stock Company, Cadovimex II Seafood Import–Export and Processing Joint Stock Company, Dai Thanh Seafoods Company Limited, Fatifish Company Limited, Hoang Long Seafood Processing Company Limited, Nam Viet Corporation, East Sea Seafoods Limited Liability Company, QVD Food Company Ltd., Saigon–Mekong Fishery Co., Ltd., and Can Tho Import–Export Joint Stock Company (collectively "Anvifish"); and (2) Can Tho Import–Export Joint Stock Company ("CASEAMEX"). See Scheduling Order and Order on Consolidation, May 6, 2015, ECF No. 29.

Agifish and Anvifish challenge Commerce's selection of Indonesia as the primary surrogate country to obtain surrogate values ("SV") for respondents' factors of production ("FOP") in this administrative review. Mem. Law Supp. Pls.' Rule 56.2 Mot. J. Upon Agency R. 8–11, Oct. 2, 2015, ECF No. 46 ("Agifish Br."); Mem. Law Supp. Pl.'s Rule 56.2 Mot. J. Upon Agency R. 8–40, Oct. 2, 2015, ECF No. 47 ("Anvifish Br."). Agifish challenges Commerce's selection of SV data sources to value various FOPs used to produce the subject merchandise, including medicines and antibiotics, nutrition, fish feed, packing tape, and packing strap, various fish waste byproducts, truck freight, and brokerage and handling. Agifish Br. 11–16; 25–50, 52–55. In addition, Agifish challenges Commerce's use of a conversion ratio to obtain size-specific values for respondent's fingerlings as well as Commerce's rejection of fingerling length data submitted on the record as untimely new factual information. Agifish Br. 16–25; 50–52. CASEAMEX challenges Commerce's determination that it is not entitled to a separate rate. See Mem. Law Supp. Consolidated Plaintiff CASEAMEX's Rule 56.1 Mot. J. Agency R. 11–41, Oct. 2, 2015, ECF No. 44 ("CASEAMEX Br."). Finally, Anvifish argues that, if Commerce revises HVG's rate as a result of any of the challenges raised in this action, Commerce must revise the dumping margin assigned to the separate rate respondents. Anvifish Br. 38–40.

The court sustains Commerce's selection of Indonesia as the primary surrogate country in this review. The court also sustains Commerce's SV data selections for medicines and antibiotics, nutrition, packing tape, packing strap, various fish waste byproducts, truck freight, brokerage and handling, and the SV for fingerlings. However, the court remands Commerce's SV data selection for fish feed. Since Anvifish's claim that Commerce must revise the dumping margin assigned to the separate rate respondents depends on whether Commerce's SV data selection for fish feed is revised, the court defers consideration on this issue. The court remands Commerce's decision not to grant CASEAMEX's separate rate status in this administrative review for further consideration and explanation.

BACKGROUND

Commerce initiated this tenth antidumping duty ("AD") administrative review covering subject imports entered during the period of review ("POR"), August 1, 2012 through July 31, 2013. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam , 78 Fed. Reg. 60,834, 60,836 (Dep't Commerce Oct. 2, 2013) (initiation of antidumping and countervailing duty administrative reviews and request for revocation in part). In this review, Commerce examined Hung Vuong Group ("HVG"), which includes An Giang Fisheries Import & Export Joint Stock Company and other exporters of subject merchandise, as the sole mandatory respondent. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Decision Memorandum for the Preliminary Results of the 2012–2013 Antidumping Duty Administrative Review at 1 n.2, 2–3, PD 236, bar code 3213671–01 (July 2, 2014) ("Prelim. Decision Memo"). Commerce preliminarily assigned HVG as well as all of the separate rate respondents not individually examined a weighted-average dumping margin of $0.58 per kilogram. Certain Frozen Fish Fillets from the Socialist Republic of Vietnam , 79 Fed. Reg. 40,059, 40,061 (Dep't Commerce July 11, 2014) (preliminary results of the antidumping duty administrative review; 2012–2013). Commerce preliminarily assigned a weighted-average dumping margin of $2.39 per kilogram to those exporters subject to the order who did not rebut the presumption of government control. Id. Commerce also preliminarily determined that CASEAMEX is entitled to a separate rate because it demonstrated the absence of both a de jure and de facto government control. Prelim. Decision Memo at 8.

In its final determination, Commerce calculated final weighted-average dumping margins of $0.97 per kilogram for HVG and the separate rate respondents. Final Results , 80 Fed. Reg at 2,395. The rate assigned to exporters who did not rebut the presumption of government control remained unchanged. Id. Commerce reconsidered its separate rate determination with respect to CASEAMEX and concluded that CASEAMEX failed to demonstrate independence in the selection of management. See Final Decision Memo at 5; Memorandum re: Proprietary Analysis of Comment XXI: CASEAMEX—Separate Rate Status at 6, CD 184, bar code 3251356–01 (Jan. 7, 2015) ("Separate Rate Memo").

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012), which grant the Court authority to review actions contesting the final determination in an administrative review of an antidumping duty order. "The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Primary Surrogate Country Selection

Agifish and Anvifish challenge Commerce's selection of Indonesia as the primary surrogate country for valuing respondent's FOPs on the grounds that Indonesia is not economically comparable to Vietnam. Anvifish Br. 13–24; Agifish Br. 8–11. Additionally, Anvifish argues that Commerce acted contrary to law in failing to weigh the relative economic comparability of the potential surrogate countries, see Anvifish Br. 21–24, and that Commerce's reasons for rejecting Bangladeshi data sources as the best available information for valuing respondent's FOPs were unsupported by the record. Anvifish Br. 28–38. Lastly, Agifish argues Commerce did not provide sufficiently compelling reasons to justify relying upon data considerations to select Indonesia over Bangladesh. Agifish Br. 10–11.

In antidumping proceedings involving...