675 F.Supp.2d 1287 (CIT 2009), 08-00283, Ad Hoc Shrimp Trade Action Committee v. United States

Docket Nº:Court 08-00283.
Citation:675 F.Supp.2d 1287
Opinion Judge:WALLACH, Judge.
Party Name:AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant and Pakfood Public Company Limited et al., Defendant-Intervenors. Slip Op. 09-151.
Attorney:Pickard, Kentz and Rowe, LLP (Andrew W. Kentz and Nathaniel Maandig Rickard) for Plaintiff and Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee. White & Case LLP, Washington, DC (Walter J. Spak, Christopher F. Corr, and Jay C. Campbell) for Plaintiffs and Defendant-Intervenors Andaman Se...
Judge Panel:Before: WALLACH, Judge.
Case Date:December 29, 2009
Court:Court of International Trade
 
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675 F.Supp.2d 1287 (CIT 2009)

AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff,

v.

UNITED STATES, Defendant

and

Pakfood Public Company Limited et al., Defendant-Intervenors.

Slip Op. 09-151.

Court No. 08-00283.

United States Court of International Trade.

December 29, 2009

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Pickard, Kentz and Rowe, LLP (Andrew W. Kentz and Nathaniel Maandig Rickard) for Plaintiff and Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

White & Case LLP, Washington, DC (Walter J. Spak, Christopher F. Corr, and Jay C. Campbell) for Plaintiffs and Defendant-Intervenors Andaman Seafood Co., Ltd., Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., Phatthana Seafood Co., Ltd., Phatthana Frozen Food Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai International Seafoods Co., Ltd., and Rubicon Resources, LLC.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini and Joshua E. Kurland), for Defendant United States.

Trade Pacific PLLC (Robert G. Gosselink and Jonathan M. Freed) for Defendant-Intervenors Pakfood Public Company Limited, Asia Pacific (Thailand) Company Limited, Chaophraya Cold Storage Company Limited, Okeanos Company Limited, Takzin Samut Company Limited, and Yeenin Frozen Foods Company Limited.

Akin, Gump, Strauss, Hauer & Feld, LLP (Warren E. Connelly and Jarrod M. Goldfeder) for Defendant-Intervenors Thai Union Seafood Co., Ltd. and Thai Union Frozen Products Public Co., Ltd.

Before: WALLACH, Judge.

OPINION

WALLACH, Judge.

I

INTRODUCTION

This action arises out of the administrative review of an antidumping duty order covering certain warmwater shrimp from Thailand conducted by the U.S. Department of Commerce (" Commerce" or the " Department" ). Plaintiff/Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee (" Ad Hoc" or the " Committee" ) 1 and Plaintiffs/Defendant-Intervenors Andaman Seafood Co., Ltd., Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., Phatthana Seafood Co., Ltd., Phatthana Frozen Food Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai International Seafoods Co., Ltd., and Rubicon Resources, LLC (collectively, the " Rubicon Group" ) 2 challenge

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Commerce's determinations in Certain Frozen Warmwater Shrimp From Thailand: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 73 Fed.Reg. 50,933 (August 29, 2008), Public Record (" P.R." ) 522 (" Final Results " ). This court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Each Commerce action challenged by Ad Hoc is sustained as being supported by substantial evidence and in accordance with law. The lone aspect of the Final Results challenged by the Rubicon Group is remanded to Commerce, as requested by Defendant United States (" Defendant" ).

II

BACKGROUND

A

Initiation Of The Subject Antidumping Review And Respondent Selection

Ad Hoc is an association comprised primarily of domestic producers, processors, and wholesalers of warmwater shrimp. Ad Hoc Complaint ¶ 7. In February 2007, Ad Hoc requested an antidumping review of sales in the United States of certain frozen warmwater shrimp by numerous Thai shrimp producers. Notice of Initiation of Administrative Reviews of the Antidumping Orders on Certain Frozen Warmwater Shrimp from Brazil, Ecuador, India and Thailand, 72 Fed.Reg. 17,100, 17,101 (April 6, 2007) (" Initiation Notice " ). Commerce in April 2007 initiated the review of an antidumping order covering 142 companies for the period of review (" POR" ) from February 1, 2006, through January 31, 2007. Id. at 17,100-10. The Initiation Notice set forth Commerce's intent with respect to the selection of respondents as follows:

Due to the large number of firms requested for these administrative reviews and the resulting administrative burden to review each company for which a request has been made, the Department is exercising its authority to limit the number of respondents selected for review.... In selecting the respondents for individual review, the Department intends to select the largest exporters/producers by U.S. sales/export volume.

Initiation Notice, 72 Fed.Reg. at 17,110 (citation omitted).

Ad Hoc in May 2007 objected to Commerce's intent to select respondents by the largest volume, contending that it was " unprecedented and a deviation, without notice or viable explanation, from prior Department practice." Letter from Bradford L. Ward, Dewey Ballantine LLP, to the Honorable Carlos M. Gutierrez, Secretary of Commerce, U.S. Department of Commerce, Re: Second Antidumping Duty Administrative Review of Certain Warmwater Shrimp from Brazil, China, Ecuador, India, Thailand, and Vietnam (2006-2007): Respondent Selection and Request for Verification, P.R. 149 (" May 22, 2007 Letter " ), at 2.

Commerce thereafter set a June 13 deadline for what it called " a final opportunity to comment on the Department's intended respondent selection methodology." Letter from James P. Maeder, Director, AD/CVD Operations, Office 2, U.S. Department of Commerce, to All Interested Parties (June 6, 2007), P.R. 180 (" June 6, 2007 Letter " ), at 1. Ad Hoc timely filed a submission encouraging Commerce to select respondents through sampling and again objecting to the announcement of intent to select by volume in the Initiation Notice. Letter from Bradford L. Ward, Dewey Ballantine LLP, to the Honorable Carlos M. Gutierrez, Secretary of Commerce, U.S. Department of Commerce, Re:

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Second Antidumping Duty Administrative Review of Certain Warmwater Shrimp from Thailand (2006-2007): Respondent Selection and Requests for Verification (June 13, 2007), P.R. 187 (" June 13, 2007 Letter " ).

After receiving comments, Commerce in July 2007 announced that due to " resource constraints" it would " limit examination to four" of the producers/exporters subject to the review. Memorandum from James P. Maeder, Director, AD/CVD Operations, Office 2, U.S. Department of Commerce, to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, Re: 2006-2007 Antidumping Duty Administrative Review on Certain Frozen Warmwater Shrimp from Thailand (July 19, 2007), P.R. 219 (" Respondent Selection Memo " ).

Commerce selected:

• the Rubicon Group;

• Defendant-Intervenors Pakfood Public Company Limited, Asia Pacific (Thailand) Company Limited, Chaophraya Cold Storage Company Limited, Okeanos Company Limited, Takzin Samut Company Limited, and Yeenin Frozen Foods Company Limited (collectively, " Pakfood" ); 3

• Thai I-Mei Frozen Foods Co., Ltd. (" Thai I-Mei" ); and

• Defendant-Intervenors Thai Union Seafood Co., Ltd. and Thai Union Frozen Products Public Co., Ltd. (collectively, " Thai Union" ).

Certain Frozen Warmwater Shrimp From Thailand: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 73 Fed.Reg. 12,088, 12,088-89 (March 6, 2008), P.R. 422 (" Preliminary Results " ).

Commerce sent questionnaires to the four selected mandatory respondents on the day that it issued the Respondent Selection Memo. Id. at 12,089. Ad Hoc subsequently objected to the selection of four respondents. Letter from Bradford L. Ward, Dewey Ballantine LLP, to the Honorable Carlos M. Gutierrez, Secretary of Commerce, U.S. Department of Commerce, Re: Second Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Thailand (2006-2007): Respondent Selection (July 30, 2007), P.R. 228 (" July 30, 2007 Letter " ), at 1-6. Ad Hoc asked Commerce to " revisit its mandatory respondent selection in this review and make that decision consistent with its respondent selection decisions in the other five concurrent certain frozen warmwater shrimp reviews by selecting no more than two mandatory respondents here." Id. at 6; see Letter from Bradford L. Ward, Dewey Ballantine LLP, to the Honorable Carlos M. Gutierrez, Secretary of Commerce, U.S. Department of Commerce, Re: Second Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Thailand (2006-2007): Respondent Selection (August 10, 2007), P.R. 245 (" August 10, 2007 Letter " ), at 9.

Commerce in August 2007 addressed Ad Hoc's objection to the Respondent Selection Memo. Letter from Gary Taverman, Acting Deputy Assistant Secretary for Import Administration, U.S. Department of Commerce, to Bradford Ward, Dewey Ballantine LLP, Re: 2006-2007 Administrative Review of the Antidumping Duty Order on Certain Frozen Warmwater Shrimp from Thailand (August 17, 2007), P.R. 249. Commerce informed Ad Hoc " that it is not appropriate to reconsider the number of companies required to respond to the full questionnaire." Id. at 1. Commerce explained as follows:

[W]e evaluated our existing administrative resources and concluded that we

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have sufficient resources to examine four Thai exporters. The Department afforded all parties an opportunity to comment on the issue of respondent selection prior to issuing a decision on his topic.... With regard to your request that the Department disclose its rationale for selecting four respondents in this proceeding and only two companies in four of the five companion proceedings, we note that ... we did not make our respondent selection decisions in isolation.

Id. at 1-2.

Commerce received questionnaire responses from the mandatory respondents in August, September, and October 2007. Preliminary Results, 73 Fed.Reg. at 12,089. Commerce...

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