East Sea Seafoods Llc. v. United States, Slip Op. 10-62.

Citation714 F.Supp.2d 1243
Decision Date27 May 2010
Docket NumberCourt No. 10-001020.,Slip Op. 10-62.
PartiesEAST SEA SEAFOODS LLC, Plaintiff, v. UNITED STATES, Defendant, and Catfish Farmers of America, Defendant-Intervenor.
CourtU.S. Court of International Trade

OPINION TEXT STARTS HERE

Arent Fox LLP (John M. Gurley, Nancy Aileen Noonan, Diana Dimitriuc Quaia, Matthew L. Kanna), for Plaintiff.

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 (Claudia Burke, Courtney S. McNamara); David W. Richardson, of counsel, Office of the Chief Counsel for Import Administration, Department of Commerce, for Defendant.

Akin Gump Strauss Hauer & Feld LLP, Washington, DC (Valerie A. Slater, Jarrod Mark Goldfeder, Nicole Marie D'Avanzo, Natalya Daria Dobrowolsky, Jaehong David Park), for Defendant-Intervenor.

Opinion & Order

CARMAN, Judge.

In this case, Plaintiff East Sea Seafoods LLC (“ESS LLC” or Plaintiff) challenged the final results of the fifth administrative review of an antidumping duty order on certain frozen fish fillets from Vietnam. Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of the Antidumping Duty Administrative Review and New Shipper Reviews, 75 Fed.Reg. 12,728 (Mar. 17, 2010) (the “Final Results”). In an opinion dated April 19, 2010, this Court affirmed the U.S. Department of Commerce's (“Commerce” or Defendant) determination that ESS LLC was not the successor-in-interest to East Sea Seafoods JVC (ESS JVC). 1 East Sea Seafoods LLC v. United States, 34 CIT ----, 703 F.Supp.2d 1336, 1351-52 (2010) (“ East Sea 1 ”). The Court also found that it was unlawful for Commerce to treat ESS LLC as if it was a part of the Vietnam-wide entity without first considering abundant record evidence pertaining to Plaintiff's independence from the Vietnamese government. Before the Court are the Final Results of Redetermination (“ Remand Results ”) filed by Commerce on April 27, 2010. For the reasons set forth below, the Remand Results are held unlawful in part and affirmed in part. Because the legal error set aside by the Court does not require correction through remand to the agency, judgment shall be entered for Defendant.

Background

The background of this case, set out fully in East Sea 1, is summarized briefly here for convenience. ESS JVC was named in the Notice of Initiation of the 5th Administrative Review (“5th AR”) of an antidumping duty order on Certain Fish Fillets from Vietnam because it had exported subject merchandise to the United States during the period of review (“5th POR”). Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 73 Fed.Reg. 56,795, 56,796 (Sep. 30, 2008) (“Notice of Initiation”). Approximately six weeks prior to the end of the 5th POR, on June 17, 2008, ESS JVC changed its name to ESS LLC pursuant to a requirement of Vietnamese law. The administrative review was not initiated as to ESS LLC because Commerce received no request to review that entity, and ESS LLC was not identified as the exporter on any entries of subject merchandise imported during the 5th POR. 2 Nevertheless, ESS LLC was permitted to participate extensively in the administrative proceeding, and ultimately succeeded in obtaining a successor-in-interest analysis from Commerce. Commerce found that ESS LLC was not the successor-in-interest to ESS JVC as it had existed the last time it was reviewed, during the 3rd administrative review. As a result, ESS LLC did not qualify for the antidumping cash deposit rate previously assigned to ESS JVC, and was instead assigned the cash deposit rate of the Vietnam-wide entity, of $2.11/kg. Additionally, in the Final Results, Commerce determined that all entries made after the date of the name change would be treated as entries of ESS LLC, and would be liquidated at $2.11/kg.

In East Sea 1, this Court affirmed the results of the successor-in-interest analysis, but held unlawful the assignment of a cash deposit rate to ESS LLC equal to the Vietnam-wide entity rate. The Court found that for Commerce to presume that ESS LLC was an exporter under the control of the Vietnamese government without first considering record evidence to the contrary was not in accordance with law. On remand, the Court required Commerce to consider the evidence submitted by ESS LLC pertaining to its independence from the Vietnamese government, and to determine whether ESS LLC had established de jure and de facto independence, entitling it to a separate rate. The Court also required Commerce to reconsider its decision to liquidate all entries that had been exported by ESS JVC after the date of the name change at the rate assigned to ESS LLC. The Court has jurisdiction over this case pursuant to 28 U.S.C. 1581(c).

Discussion

I. The Treatment of Entries Made after June 17, 2008 Identifying ESS JVC as the Exporter

A. Remand Results

In East Sea 1, this Court found that “the decision of Commerce to order liquidation of entries by ESS JVC at the rate assigned to ESS LLC for all entries after the effective date of the name change” was unsupported by substantial evidence in the record, and not in accordance with law. East Sea 1 at 1357-58. On remand, Commerce changed its position and decided to liquidate all entries made between the June 17, 2008 name change and the end of the POR, that identified ESS JVC as the exporter (the “Post Name Change Entries”) at the rate assigned to ESS JVC in this review: $0.02/kg. Remand Results at 14. Although Commerce maintains its position that as of June 17, 2008, ESS JVC ceased to exist, it appears to have accepted Plaintiff's contention that “subject merchandise exported by East Sea JVC up to June 17, 2008 would not enter the United States for a number of weeks after exportation.” (Pl.'s Rule 56.2 Mot. at 20; see also Remand Results at 14.) Commerce determined that the most reliable source for determining which East Sea entity exported the Post Name Change Entries was the import data provided by U.S. Customs and Border Protection (“CBP”), which clearly shows “that all entries [made by an East Sea entity] during these last 45 days of the POR were made by ESS JVC.” Remand Results at 14.

B. Parties' Contentions

Although it now stands to receive significantly more favorable antidumping duty treatment of the Post Name Change Entries, Plaintiff denies ever claiming that all of these entries were entries of ESS JVC. (Plaintiff's Comments on Defendant's Redetermination on Remand (“Pl.'s Comments”) at 9.) Instead, it offers the carefully nuanced claim that it had only argued that “the product shipped from Vietnam by ESS JVC before the name change might arrive in the U.S. several weeks after the name change.” ( Id.) On May 7, 2010, Plaintiff requested leave to file a reply to Defendant's Response. In its reply, Plaintiff suggests for the first time its “belie[f] that four shipments from Vietnam with invoices dated after June 17, 2008 entered U.S. commerce prior to July 31, 2008,” and argues that by Commerce's “own reasoning ... [these entries] must be attributed to ESS LLC.” (Pl.'s Reply to Def.'s Comments (“Pl.'s Reply”) at 2.) The four entries Plaintiff refers to apparently identify ESS JVC as the exporter.

Defendant takes the position that ESS LLC has conceded that it made no entries during the period of review. (Def.'s Resp. to Pl.'s Comments (“Def.'s Resp.”) at 2, 5, 10.) On May 12, 2010, Defendant requested leave to file a surreply to Plaintiff's reply, in large part to argue that ESS LLC should be “judicially estopped” from now claiming that any Post Name Change Entries actually belong to ESS LLC. (Def.'s Surreply to Pl.'s Reply (“Def.'s Surreply”) at 1-4.)

C. Analysis

Commerce's determination that the Post Name Change Entries should be liquidated at the rate assigned to ESS JVC is supported by substantial evidence in the record and otherwise in accordance with law, and is therefore sustained. Specifically, Commerce's reliance on the official CBP import data in determining which East Sea entity exported the Post Name Change Entries is eminently reasonable. See id. This decision was supported by ESS LLC's assertion in its USCIT R. 56.2 Motion that exports from ESS JVC immediately prior to the name change would take “a number of weeks” to enter the country. Without any evidence in the record explicitly linking entries with sales, it was reasonable for Commerce to conclude that the Post Name Change Entries correctly identified ESS JVC as the exporter.

The Court finds no evidence in the record to support Plaintiff's eleventh hour claim that as many as four of the Post Name Change Entries identified the wrong exporter, and disregards this argument as not probative here. The Court also notes the abnormality and possible consequences stemming from Plaintiff's claim that its affiliated importer inaccurately identified the exporter on entries of subject merchandise.

II. ESS LLC's Entitlement to a Separate Rate DeterminationA. Remand Results

In its Remand Results, Commerce determined that because ESS LLC had no entries during the 5th POR, it is “not entitled to a review on any issues, including separate rates.” Remand Results at 3-5. Commerce states that it “is not required to conduct administrative reviews and change cash deposit rates of companies which have no entries during the period of review.” Id. at 3 (citing Allegheny Ludlum Corp., et. al. v. United States, 346 F.3d 1368 (Fed.Cir.2003)). Commerce also disagrees with this Court's reliance on Transcom, Inc. v. United States, 182 F.3d 876 (Fed.Cir.1999), claiming that Transcom does not require Commerce to provide “any interested party with the opportunity to rebut the presumption that they are not [sic] part of the nonmarket economy (‘NME’) government.” Id. at 4. Additionally, in Commerce's view, being required “to resolve issues in a review for companies with...

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