343 F.Supp.2d 1242 (CIT. 2004), Court 02-00376, Crawfish Processors Alliance v. United States

Docket Nº:Court 02-00376
Citation:343 F.Supp.2d 1242
Party Name:Crawfish Processors Alliance v. United States
Case Date:May 06, 2004
Court:Court of International Trade
 
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343 F.Supp.2d 1242 (CIT. 2004)

CRAWFISH PROCESSORS ALLIANCE;  Louisiana Department of Agriculture and Forestry;  Bob Odom, Commissioner, Plaintiffs,

v.

UNITED STATES, Defendant,

and

Hontex Enterprises, Inc., d/b/a Louisiana Packing Company;  Qingdao Rirong Foodstuff Co., Ltd. and Yancheng Haiteng Aquatic Products & Foods Co., Ltd;  Bo Asia, Inc., Grand Nova International, Inc., Pacific Coast Fisheries Corp., Fujian Pelagic Fishery Group Co., Qingdao Zhengri Seafood Co., Ltd. and Yangcheng Yaou Seafood Co., Defendant-Intervenors and Plaintiffs. 

Slip Op.  04-47. 

Court No. 02-00376.

United States Court of International Trade.
May 6, 2004
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        Adduci, Mastriani & Schaumberg, L.L.P., Washington, DC (Will E. Leonard

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and John C. Steinberger) for Crawfish Processors Alliance, Louisiana Department of Agriculture and Forestry, and Bob Odom, Commissioner, plaintiffs.

        Coudert Brothers LLP, Washington, DC (John M. Gurley and Matthew J. McConkey) for Hontex Enterprises, Inc., d/b/a Louisiana Packing Company, plaintiff and defendant-intervenor.

        White & Case, Washington, DC (William J. Clinton, Adams C. Lee and Jonathan Seiger) for Qingdao Rirong Foodstuff Co., Ltd. and Yancheng Haiteng Aquatic Products & Foods Co., Ltd., plaintiffs and defendant-intervenors.

        Garvey Schubert Barer, Washington, DC (William E. Perry, Lizabeth R. Levinson and John C. Kalitka) for Bo Asia, Inc., Grand Nova International, Inc., Pacific Coast Fisheries Corp., Fujian Pelagic Fishery Group Co., Qingdao Zhengri Seafood Co., Ltd. and Yangcheng Yaou Seafood Co., plaintiffs and defendant-intervenors.

        Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (David S. Silverbrand); Arthur D. Sidney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for the United States, defendant, of counsel.

        OPINION

        TSOUCALAS, Senior Judge.

        This consolidated action concerns the motion of plaintiffs, Crawfish Processors Alliance, Louisiana Department of Agriculture and Forestry, and Bob Odom, Commissioner (collectively "CPA") and plaintiffs and defendant-intervenors, Hontex Enterprises, Inc., d/b/a Louisiana Packing Company ("Hontex"), Qingdao Rirong Foodstuff Co., Ltd. ("Qingdao"), Yancheng Haiteng Aquatic Products & Foods Co., Ltd. ("Yancheng"), Bo Asia, Inc. ("Bo Asia"), Grand Nova International, Inc. ("Grand Nova"), Pacific Coast Fisheries Corp. ("Pacific Coast"), Fujian Pelagic Fishery Group Co. ("Fujian") and Yangcheng Yaou Seafood Co. ("Yaou") (collectively "Plaintiffs/Defendant-Intervenors"), 1 pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the United States Department of Commerce, International Trade Administration's ("Commerce") final results entitled Notice of Final Results of Antidumping Duty Administrative Review, and Final Partial Recission of Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People's Republic of China ( "Final Results" ), 67 Fed.Reg. 19,546 (Apr. 22, 2002).

        Specifically, Plaintiffs/Defendant-Intervenors contend that Commerce's determination to select Australia as the appropriate surrogate country for valuation of whole live crawfish was not supported by substantial evidence or in accordance with law. CPA argues that Commerce's determination to use the list prices from a single Australian company was not the "best available information" of prices for crawfish used in the production of tail meat exported by Chinese crawfish companies. Additionally, CPA complains that Commerce improperly rejected information submitted regarding a possible affiliation between Qingdao and another Chinese crawfish exporter. Qingdao and Yancheng contend that Commerce erred in its application of a dry-to-wet weight conversion ratio to the crawfish shells by-product factor

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calculation. Hontex complains that Commerce improperly rejected certain Hontex filings as untimely submitted new factual information, and that Commerce erred in assigning a single rate to Ningbo Nanlian ("Nanlian") and Jiangsu Hilong International Trading Company, Ltd. ("Jiangsu"). Bo Asia, Grand Nova, Pacific Coast, Fujian, Yaou and Hontex also complain that Commerce's failure to issue a timely final determination renders the Final Results void ab initio. Bo Asia, Grand Nova, Pacific Coast, Fujian and Yaou contend that: (1) Commerce failed to find that Fujian and Pacific Coast were "affiliated" parties; (2) Commerce erred in assigning Yaou an "adverse facts available" margin; and (3) the statutory provisions for the disbursement of collected antidumping duties to domestic interested parties require Commerce to change its procedures during the administrative review at issue.

        BACKGROUND

        The administrative review at issue involves the period of review ("POR") covering September 1, 1999, through August 31, 2000. 2 See Final Results, 67 Fed.Reg. at 19,546. Commerce published the preliminary results of the subject review on October 12, 2001. See Notice of Preliminary Results of Antidumping Duty Administrative Review and Preliminary Partial Recission of Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat From the People's Republic of China ( "Preliminary Results" ), 66 Fed.Reg. 52,100.

        JURISDICTION

        The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a (2000) and 28 U.S.C. § 1581(c) (2000).

        STANDARD OF REVIEW

        The Court will uphold Commerce's final determination in an antidumping administrative review unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law...." 19 U.S.C. § 1516a(b)(1)(B)(I) (1994); see NTN Bearing Corp. of Am. v. United States, 24 CIT 385, 389-90, 104 F.Supp.2d 110, 115-16 (2000) (detailing Court's standard of review in antidumping proceedings).

        DISCUSSION

        I. Commerce Properly Determined to Select Australia as the Surrogate Country for Valuation of Whole Live Freshwater Crawfish

        A. Contentions of the Parties

        1. Plaintiff/Defendant-Intervenors' Contentions

        Plaintiff/Defendant-Intervenors generally contend that Commerce erred in rejecting Spain and choosing Australia as the source of surrogate values for live crawfish. See Pls. Qingdao Yancheng R. 56.2 Mot. J. Upon Agency R. ("Qingdao & Yancheng's Mem.") at 8-25; Br. Supp. Pls.' Mot. J. Agency R. ("Bo Asia's Br.") at 27-30; Mem. Supp. Mot. J. Upon Agency R. ("Hontex's Mem.") at 4-15. Bo Asia, Grand Nova, Fujian and Yaou (collectively "Bo Asia et al.") add that Commerce ignored the best available information on the record by choosing Australian data rather than data from Mexico, a country with an economy more comparable to China. See Bo Asia's Br. at 29-30.

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        Specifically, Qingdao, Yancheng and Hontex first assert that Commerce abandoned its prior practice of using Spanish import data to establish the surrogate value for live crawfish. See Qingdao & Yancheng's Mem. at 9-10; Hontex's Mem. at 10. Qingdao and Yancheng further contend that Commerce must meet a high evidentiary standard and thoroughly explain its reasons for departing from its prior practice. See Qingdao & Yancheng's Mem. at 15. Commerce's rejection of Spanish data was based upon the observation that import data used in previous reviews indicated a drastic decline in the amount of imports of live crawfish into Spain from Portugal. See Qingdao & Yancheng's Mem. at 10. Commerce failed to articulate its reasons for discontinuing the use of Spanish import data and why it rejected all forms of data on Spanish prices for live crawfish. See id. at 10-11. Moreover, Qingdao and Yancheng maintain that Commerce should have considered other sources of Spanish data that could be substituted for the Spanish import data used in previous reviews. See id. at 11.

        Second, Qingdao, Yancheng and Hontex take issue with Commerce's reasons for rejecting alternative Spanish crawfish data submitted by interested parties. See id. at 15-17; Hontex's Mem. at 6-9. Contrary to Commerce's determination, the data entitled Estudio Sobre el Impacto Económico del Sector de Congrejo de Rio en Andalucia (the "Spanish Study" ) was an official government report sanctioned by the regional government of Andalusia, which "approved the study, developed and issued the questionnaire that was used to collect data used in the study, and financed the printing of both the questionnaire and the eventual study." Qingdao & Yancheng's Mem. at 16; see also Hontex's Mem. at 6. Hontex asserts that "[n]owhere in the record is it apparent that the [ Spanish Study ] was not a 'government product at all.' " Hontex's Mem. at 7. In addition, Commerce has traditionally relied on similar broad, industry-wide averages and estimates as surrogate values. See Qingdao & Yancheng's Mem. at 17-19. The data contained in the Spanish Study demonstrates that Spain was an important market for live crawfish during the POR, "so that prices of that input could reasonably be used as surrogate values in this proceeding." Id. at 17. Accordingly, Qingdao, Yancheng and Hontex complain that Commerce improperly determined that the Spanish Study was unreliable and rejected the use of Spanish prices to establish the surrogate value for live crawfish.

        Third, Qingdao and Yancheng argue that Commerce "erred in failing to ensure that the [ Spanish Study ] really was unacceptable as a source of surrogate data before moving on to use the Australian yabby surrogate value data." Id. at 25. Qingdao and Yancheng further complain that Commerce failed to collect the same type of information regarding...

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