Amanda Foods Ltd. v. United States

• Citation: 714 F.Supp.2d 1282
• Decision Date: 17 June 2010
• Docket Number: Court No. 08-00301.,Slip Op. 10-69.
• Parties: AMANDA FOODS (VIETNAM) LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, and Ad Hoc Shrimp Trade Action Committee, Defendant-Intervenor.
• Court: U.S. Court of International Trade

714 F.Supp.2d 1282

AMANDA FOODS (VIETNAM) LTD., et al., Plaintiffs,

v.UNITED STATES, Defendant,andAd Hoc Shrimp Trade Action Committee, Defendant-Intervenor.

Slip Op. 10-69.

Court No. 08-00301.

United States Court ofInternational Trade.

June 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Mayer Brown LLP, (Matthew J. McConkey and Jeffery C. Lowe), for Plaintiff, Amanda Foods (Vietnam) Ltd. Thompson Hine LLP, (Matthew R. Nicely and Christopher M. Rassi), and Winston & Strawn LLP, (William H. Barringer and Valerie S. Ellis), for Consolidated Plaintiffs, Ca Mau Seafood Joint Stock Company; Cadovimex Seafood Import-Export and Processing Joint-Stock 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 & Import-Export 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 M. Zielinski, Senior Attorney, Office of the Chief Counsel for Import Administration, Department of Commerce, for Defendant, United States.

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

OPINION AND ORDER

POGUE, Judge.

This consolidated action is again before the court following the initial remand of the final results of the second administrative review of the antidumping duty order covering frozen warmwater shrimp from the Socialist Republic of Vietnam. ¹ Plaintiffs are cooperative non-investigated respondents in the administrative review who have established their entitlement to a separate rate. In the review, the United States Department of Commerce (“Commerce” or “the Department”) determined Plaintiffs' dumping margins to be equal to the nonzero rates assigned to Plaintiffs in the investigation underlying this order, rather than to the weighted average of margins calculated for the individually-investigated respondents. All individually-investigated respondents' margins were zero or de minimis. In Amanda I, the court remanded Commerce's decision, directing the Department to assign to Plaintiffs the weighted average of the mandatory respondents' rates, or to provide justification, based on substantial evidence on the record, for using another rate. ² Amanda I, --- CIT at ----, 647 F.Supp.2d at 1382.

As explained more fully below, by imputing to cooperative respondents the behavior of uncooperative respondents, Commerce has failed to comply with the court's remand order in Amanda I. The Department has again failed to provide a rational connection between the facts found and the rates applied. Accordingly, the court again remands to Commerce the question of appropriate antidumping duty rates for Plaintiffs.

BACKGROUND

A. Amanda I

Commerce's choice of assessment rate for cooperative non-investigated respondents in the second review of this antidumping duty order is fully chronicled in the court's opinion in Amanda I, 647 F.Supp.2d at 1374-75. Briefly:

[R]ather than averaging the two mandatory respondents' [zero and de minimis ] 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 Department applied the rate that the separate rate companies had received in the original investigation, based on sales made prior to the imposition of the dumping order....

Id. at 1374 (citing Final Results, 73 Fed.Reg. at 52,275-76). ³

In Amanda I, the court noted that “[t]he sole reasoning that the Department provided for this decision was that thirty-five companies received margins based on [adverse facts available (‘AFA’)] and that ‘the circumstances of this review are similar to those of the preceding review.’ ” Id. at 1381 (quoting Final Results, 73 Fed.Reg. at 52,275 and citing Issues & Decision Mem., A-552-802, 2d AR 02/01/06-01/31/07 (Sept. 2, 2008), Admin. R. Pub. Doc. 231 (“ I & D Mem.”)).

The court found this analysis insufficient, concluding that “there is no basis in the [antidumping] statute for penalizing cooperative uninvestigated respondents due solely to the presence of non-cooperative uninvestigated respondents who receive a margin based on AFA,” id. (citing Yantai Oriental Juice Co. v. United States, 27 CIT 477, 487 (2003)), and that “nowhere in the record [did] Commerce provide sufficient reasoning linking the evidence to its conclusion that margins ... established during the period of investigation, prior to the imposition of the antidumping duty order, are ‘based on the best available information and establish[ ] [the relevant] antidumping margins as accurately as possible,’ ” id. at 1382 (quoting Shakeproof Assembly Components, Div. of Ill. Tool Works, Inc. v. United States, 268 F.3d 1376, 1382 (Fed.Cir.2001)). ⁴

B. Remand Results

In its remand redetermination, the Department continues to defend as reasonable its decision “to assign the margin of 4.57 percent, the margin calculated for cooperative separate rate respondents in the underlying investigation, to the separate rate respondents in the instant review with no history of a calculated margin,” Final Results of Redetermination Pursuant to Court Remand (Mar. 3, 2010)(“ Remand Results ”) at 13, as well as its decision to assign to Minh Hai Joint-Stock Seafoods Processing Company a margin of 4.30 percent, the rate received by this company in the original investigation, based on its own data. See id. at 4, 22.

The Department argues that Section 735(c)(5) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673d(c)(5)(2006) ⁵ (the “all-others rate” provision for investigations)-the statutory provision upon which the Department usually relies in establishing dumping margins for cooperative respondents not selected for individual examination in an administrative review ⁶ -“articulates a preference that the Department avoid zero, de minimis rates or rates based entirely on facts available” when it determines the appropriate dumping margins for cooperative uninvestigated respondents. Id. at 14. Further, Commerce contends that the existence in the record of “evidence of dumped sales in the prior [period of review (‘POR’)] and instant POR,” id. at 15, renders reasonable the agency's choice of dumping margins for Plaintiffs, see id. at 15-18, because “selecting rates from prior segments ... reasonably reflects the existence of dumping under the order[.]” Id. at 18.

The Department points to four particulars in the record as evidence supporting the dumping margins assigned to Plaintiffs for the POR in question-the fact that two mandatory respondents received rates based on AFA in the first review; transaction-specific above- de minimis dumping margins for at least one mandatory respondent in the second review; the existence of uncooperative respondents in the second review; and the fact that some of the subject merchandise entered during the POR came from producers/exporters who were assessed cash deposit rates based on AFA but who nevertheless did not request to be reviewed. Id. at 16-18.

Plaintiffs contend that the Department has failed to comply with the court's order in Amanda I because the margins assigned are not supported by substantial evidence on the record. ( See generally Comments on Final Results of Redetermination Pursuant to Ct. Remand on Behalf of [Pls.] (“Pls.' Comments”).) Specifically, Plaintiffs argue that Commerce continues to offer as evidence the imputation of dumping to Plaintiffs based on the presence of uncooperative respondents in the first and second reviews, despite the court's holding in Amanda I that this fact alone cannot constitute substantial evidence supporting the reasonableness of margins assigned to cooperative Plaintiffs. ( See Pls.' Comments at 2-4, 6-8.) With regard to Commerce's reliance on transaction-specific dumping margins found for one of the mandatory respondents, Plaintiffs argue that “Commerce cannot have it both ways; it cannot assign an overall de minimis margin to mandatory respondents, yet use individual comparisons from those respondents' margin calculations to justify application of an above- de minimis margin to non-mandatory respondents.” ( Id. at 5.)

STANDARD OF REVIEW

“The court will sustain the Department's determination upon remand if it complies with the court's remand order, is supported by substantial evidence on the record, and is otherwise in accordance with law.” Jinan Yipin Corp. v. United States, --- CIT ----, 637 F.Supp.2d 1183, 1185 (2009) (citing 19 U.S.C. § 1516a(b)(1)(B)(i)).

“Substantial evidence” is “such evidence as a reasonable mind might accept to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quotation marks and citations omitted). “The specific determination [the court] make[s] is whether the evidence and reasonable inferences from the record support [Commerce's] finding.” Daewoo Elecs. Co. v. Int'l Union of Elec., Elec., Technical, Salaried & Mach. Workers, AFL-CIO, 6 F.3d 1511, 1520 (Fed.Cir.1993) (internal quotation marks and citation omitted). That is, “[a] factual finding is supported by...