Amanda Foods (Vietnam) Ltd. v. U.S., Slip Op. 09-106. Court no. 08-00301.

• Decision Date: 29 September 2009
• Docket Number: Slip Op. 09-106. Court no. 08-00301.
• Citation: 647 F.Supp.2d 1368
• Parties: AMANDA FOODS (VIETNAM) LTD., et al., Plaintiffs, v. UNITED STATES, et al., Defendants.
• Court: U.S. Court of International Trade

647 F.Supp.2d 1368

AMANDA FOODS (VIETNAM) LTD., et al., Plaintiffs, v. UNITED STATES, et al., Defendants.

Slip Op. 09-106. Court no. 08-00301.

United States Court of International Trade.

September 29, 2009.

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Mayer Brown LLP (Matthew J. McConkey and Jeffery C. Lowe) for Plaintiff Amanda Foods (Vietnam) Ltd.

Picard Kentz & Rowe LLP (Andrew W. Kentz and Nathaniel M. Rickard), Washington, DC, for Consolidated Plaintiff and Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

Thompson Hine LLP (Matthew R. Nicely and Christopher M. Rassi) and Winston & Strawn LLP (Valerie S. Ellis and William H. Barringer), Washington, DC, for Consolidated Plaintiff's Ca Mau Seafood Joint Stock Company; Cadovimex Seafood Import-Export and Processing JointStock Company; Cafatex Fishery Joint Stock Corporation; Can Tho Agricultural and Animal Products Import Export Company; Coastal Fisheries Development Corporation; C.P. Vietnam Livestock Co., Ltd.; Cuulong Seaproducts Company; Danang Seaproducts Import Export Corporation; Investment Commerce Fisheries Corporation; Minh Hai Export Frozen Seafood Processing Joint-Stock Company; Minh Hai Joint-Stock Seafoods Processing Company; Ngoc Sinh Private Enterprise; Nha Trang Fisheries Joint Stock Company; Nha Trang Seaproduct Company; Phu Cuong Seafood Processing & ImportExport Co., Ltd.; Sao Ta Foods Joint Stock Company; Soc Trang Aquatic Products and General Import-Export Company; Thuan Phuoc Seafoods and Trading Corporation; UTXI Aquatic Products Processing Company; Viet Foods Co., Ltd.; Kim Anh Co., Ltd.; Phuong Nam Co., Ltd.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stephen C. Tosini), and, of counsel, Jonathan Zielinski, Office of Chief Counsel for Import Administration, Department of Commerce for Defendant United States.

Thompson Hine LLP (Matthew R. Nicely and Christopher M. Rassi), Washington, DC, for Defendant-Intervenors Camau Frozen Seafood Processing Import Export Corporation; Grobest & I-Mei Industrial (Vietnam) Co., Ltd.; Minh Phu Seafood Corporation; Minh Qui Seafood Co., Ltd.; Minh Phat Seafood Co., Ltd.

OPINION AND ORDER

POGUE, Judge.

In this consolidated action, Plaintiffs seek review of the Final Results issued by the Department of Commerce ("the Department" or "Commerce") in the second administrative review ("Second Review") of the antidumping ("AD") order covering warmwater shrimp from the Socialist Republic of Vietnam. See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 73 Fed.Reg. 52,273 (Dep't Commerce Sept. 9, 2008) (final results and final partial rescission of antidumping duty administrative review) ("Final Results"),¹ and accompanying Issues & Decision Memorandum, A-552-802, 2d AR 02/01/06-01/31/07 (Sept. 2, 2008), Admin. R. Pub. Doc. 231, available at http:// ia.i ta.doc.gov/frn/summary/vietnam/E8-20927-1.pdf (last visited Sept. 23, 2009) ("Issues & Decision Mem.").²

Three questions are before the court. First, whether Commerce's selection of Bangladesh as the surrogate country³ for the Second Review was supported by substantial evidence on the record⁴; second, whether Commerce's decision to value raw shrimp based on the surrogate value data contained in an intergovernmental agency study, Network of Aquaculture Centres in Asia-Pacific, Evaluation of the Impact of the Indian Ocean Tsunami and the U.S. Anti-Dumping Duties on the Shrimp Farming Sector of South and South-East Asia: Case Studies in Vietnam, Indonesia and Bangladesh (2006), http://library.enaca.org/shrimp/publications/NACAStudy.pdf ("NACA Study"), is supported by substantial evidence on the record; and, third, whether Commerce's assignment—as reasonable for Plaintiffs—of a separate or "all others" rate of either 4.30% or 4.57% was supported by substantial evidence on the record.

After specifying the controlling standard of review and summarizing the background of this dispute, the court will discuss each issue in turn.

Standard of Review

When it reviews the agency's final determinations in an administrative review of an AD duty order, the court will uphold all agency determinations, findings, or conclusions, except those not supported by substantial evidence on the record or otherwise not in accordance with law. Tariff Act of 1930 § 516A(b)(1)(B)(i), as amended, 19 U.S.C. § 1516a (b)(1)(B)(i) (2006).⁵

In reviewing whether Commerce's decisions 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, 1351 (Fed.Cir.2006). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). While "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence," Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (citation omitted), the "substantiality of evidence must [also] take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Gerald Metals, Inc. v. United States, 132 F.3d 716, 720 (Fed.Cir. 1997) (explaining that the substantial evidence standard requires that contradictory record evidence be taken into account).

Background

At the request of Plaintiff Ad Hoc Shrimp Trade Action Committee ("AHSTAC") and twenty-two individual exporters, Commerce, in April 2007, initiated the Second Review. See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam and the People's Republic of China, 72 Fed.Reg. 17,095, 17,096 (Dep't Commerce Apr. 6, 2007) (notice of initiation of administrative reviews of antidumping orders).

For this POR, eighteen of the twenty-three respondent Plaintiffs now before us requested review, while representatives of the domestic industry requested review for all twenty-three respondent Plaintiffs plus several other respondents. Rather than reviewing all respondents, Commerce limited the "mandatory respondents" for the Second Review to two companies—Camimex and Minh Phu Group.⁶ Selection of Respondents Memorandum, A-552-802, 2d AR 02/01/06-01/31/07 (July 18, 2007), Admin. R. Pub. Doc. 102, at 7. These two companies were both mandatory respondents in the original investigation, but neither had been reviewed in the first administrative review.

As part of its review, because Vietnam is an NME, Commerce sent interested parties a letter asking for comments on surrogate country selection and information relating to the valuation of factors of production. Letter to Interested Parties, A-552-802, 2d AR 02/01/06-01/31/07 (Aug. 3, 2007), Admin. R. Pub. Doc. 110 ("Letter to Interested Parties"). This memorandum identified five countries from a surrogate country list that Commerce deemed to be equally economically comparable to Vietnam for administrative review purposes: Bangladesh, Pakistan, India, Sri Lanka, and Indonesia. Id. Attach. I at 2. Because Commerce's regulations specify that it will normally value all factors of production, except for labor, by using data from a single surrogate country, 19 C.F.R. § 351.408(c)(2),⁷ Commerce's letter was preliminary to its choice from the list of five.

Responding to Commerce's letter, Camimex and Minh Phu Group submitted comments in favor of selecting Bangladesh and offered certain surrogate value data, including the NACA Study data from Bangladesh.⁸ Minh Phu & Camimex's Surrogate Country & Value Submission, A-552-802, 2d AR 02/01/06-01/31/07 (Oct. 26, 2007), Admin. R. Pub. Doc. 147. Petitioners, in turn, requested that India serve as the surrogate country, and also offered certain publicly available surrogate value data from India. Letter from Pet'rs, A-552-802, 2d AR 02/01/06-01/31/07 (Oct. 26, 2007), Admin. R. Pub. Doc. 149.

In the Preliminary Results of the review, Commerce chose Bangladesh as the surrogate country, and used data from the NACA Study to value Bangladeshi raw shrimp. See Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 73 Fed.Reg. 12,127, 12,133-34 (Dep't Commerce Mar. 6, 2008) (preliminary results, preliminary partial rescission and final partial rescission of the second antidumping duty administrative review) ("Preliminary Results").

To respond to the Preliminary Results, Plaintiff AHSTAC filed a case brief addressing, among other issues, the use of Bangladesh as a surrogate country and the use of the NACA Study data to value Bangladeshi raw shrimp. Pet'rs' Br., A-552-802, 2d AR 02/01/06-01/31/07 (May 7, 2008), Admin. R. Pub. Doc. 215, at 3, 6-8. Rejecting AHSTAC's claim, Commerce continued with its decision to use Bangladesh as the surrogate country and to use data from the NACA Study to provide surrogate values. Issues & Decision Mem. at 4-5; see also Final Results, 73 Fed.Reg. at 52,273 (listing no change from Preliminary Results in this regard).

Also in its Preliminary Results, Commerce calculated de minimis dumping margins for mandatory respondents Camimex and Minh Phu Group and granted all Plaintiffs separate rate status.⁹ Preliminary Results, 73 Fed.Reg. at 12,135. At this time, Commerce assigned all separate rate companies the average of Camimex and Minh Phu Group's margins—a de minimis rate. Id.

In its Final Results, Commerce maintained de minimis rates for Camimex and Min Phu Group, but, rather than averaging the two mandatory respondents' rates and using the resulting average for the separate rate companies, Commerce assigned to the separate rate companies the most recent rate that each had received in a prior proceeding. Specifically, the...