Amanda Foods (Vietnam) Ltd. v. United States

• Decision Date: 30 May 2012
• Citation: 837 F.Supp.2d 1338,34 ITRD 1577
• Parties: AMANDA FOODS (VIETNAM) LIMITED, et al., Plaintiffs, v. UNITED STATES, Defendant, and Ad Hoc Shrimp Trade Action Committee and The Domestic Processors, Defendant–Intervenors.
• Court: U.S. Court of International Trade

837 F.Supp.2d 1338

34 ITRD 1577

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

v.UNITED STATES, Defendant,andAd Hoc Shrimp Trade Action Committee and The Domestic Processors, Defendant–Intervenors.

United States Court of

International Trade.

Slip Op. 12–68.

Court No. 09–00431.¹

May 30, 2012.

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

John J. Kenkel and J. Kevin Horgan, DeKieffer & Horgan, of Washington, DC, for Consolidated Plaintiff Viet Hai Seafood Co., Ltd.

Matthew R. Nicely and David S. Christy, Jr., Thompson Hine LLP, of Washington, DC, for Consolidated Plaintiffs Bac Lieu Fisheries Joint Stock Co.; Ca Mau Seafood Joint Stock Co.; Cadovimex Seafood Import–Export and Processing Joint–Stock Co.; Cafatex Fishery Joint Stock Corp.; Cuulong Seaproducts Co.; Danang Seaproducts Import Export Corp.; Minh Hai Export Frozen Seafood Processing Joint–Stock Co.; Minh Hai Joint–Stock Seafoods Processing Co.; Ngoc Sinh Private Enter.; Nha Trang Seaproduct Co.; Phu Cuong Seafood Processing and Import–Export Co., Ltd.; Sao Ta Foods Joint Stock Co.; Soc Trang Seafood Joint Stock Co.; UTXI Aquatic Products Processing Corp.

Robert G. Gosselink and Jonathan M. Freed, Trade Pacific PLLC, of Washington, DC, for Consolidated Plaintiff Cam Ranh Seafoods Processing Enter. Co.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With him on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the briefs was Jonathan M. Zielinski, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Andrew W. Kentz, Jordan C. Kahn, and Nathaniel M. Rickard, Picard Kentz & Rowe LLP, of Washington, DC, for Defendant–Intervenor Ad Hoc Shrimp Trade Action Committee.

Elizabeth J. Drake, Geert M. De Prest, and Wesley K. Caine, Stewart and Stewart, of Washington, DC, and Edward T. Hayes, Leake & Andersson, LLP, of New Orleans, LA, for Defendant–Intervenor the Domestic Processors.

OPINION

POGUE, Chief Judge:

This case ² is again before the court following a voluntary remand ordered by Amanda Foods (Vietnam) Ltd. v. United States, 35 CIT ––––, 807 F.Supp.2d 1332, 1350 (2011) (“ Amanda Foods IV ”). Amanda Foods IV directed the Department of Commerce (“Commerce” or “the Department”) to reconsider the calculation of the all-others rate for the sixteen ³ remaining cooperative, non-individually investigated respondents (“all-others rate”). Upon remand, Commerce reopened the record to obtain, from these cooperative respondents, count-size specific Quantity and Value Questionnaire (“Q & V Questionnaire”) data. After determining that the record, supplemented by this Q & V data, contained no indication of dumping by these cooperative, non-individually investigated respondents, Commerce assigned these respondents a rate equal to an average of the weighted-average dumping margins for the individually investigated respondents. Final Results of Redetermination Pursuant to Court Remand, A–552–802, ARP 07–08 (Mar. 29, 2012), at 6–9, Remand R. Pub. Doc. 18, available at http:// ia. ita. doc. gov/ remands/ 11– 155. pdf (last visited May 21, 2012) (“ Remand Results ”).⁴

Two Defendant–Intervenors, the Ad Hoc Shrimp Trade Action Committee (“AHSTAC”) and a group of Domestic Processors, challenge the Remand Results.

The court has jurisdiction over this action pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006)⁵ and 28 U.S.C. § 1581(c) (2006).

For the reasons explained below, the court affirms the Remand Results.

BACKGROUND

Plaintiffs are cooperative, non-individually investigated respondents in the third administrative review of the AD order covering certain frozen warmwater shrimp from Vietnam. In the proceedings leading to the AR3 Final Results, Commerce, pursuant to 19 U.S.C. § 1677f–1(c)(2), limited the number of individually investigated respondents to the three respondents accounting for the largest volume of subject merchandise, and each such respondent received a de minimis rate.⁶AR3 Final Results, 74 Fed.Reg. at 47,194–95. When the Department limits the number of individually investigated respondents, it must establish an all-others rate for those respondents who were not individually investigated. In doing so, the Department takes guidance from 19 U.S.C. § 1673d(c)(5).⁷See id. at 47,195. When setting the all-others rate for the third administrative review, Commerce interpreted 19 U.S.C. § 1673d(c)(5) to discourage the use of de minimis rates in calculating the all-others rate. Consequently, because the only rates on the record of the third administrative review were the individually investigated respondents' de minimis rates, Commerce assigned the cooperative, non-individually investigated respondents a rate based on the “most recent rate calculated for the non-selected companies in question, unless we calculated in a more recent segment a rate for any company that was not zero, de minimis, or based entirely on [facts available].” Id. at 47,195.⁸

However, after the release of the AR3 Final Results, in response to a challenge to the AR2 Final Results, the court issued a series of opinions rejecting Commerce's methodology for calculating the all-others rate when all individually investigated respondents receive zero or de minimis rates. See Amanda Foods (Vietnam) Ltd. v. United States, 33 CIT ––––, 647 F.Supp.2d 1368 (2009) (remanding the AR2 Final Results to Commerce) (“Amanda Foods I ”); Amanda Foods (Vietnam) Ltd. v. United States, 34 CIT ––––, 714 F.Supp.2d 1282 (2010) (reviewing the remand redetermination conducted pursuant to Amanda Foods I and ordering a second remand) (“Amanda Foods II ”); Amanda Foods (Vietnam) Ltd. v. United States, 35 CIT ––––, 774 F.Supp.2d 1286 (2011) (reviewing the remand redetermination conducted pursuant to Amanda Foods II and affirming the AR2 Final Results ) (“Amanda Foods III ”).

The facts of the action challenging the AR2 Final Results were similar to those now before the court: Plaintiffs were cooperative, non-individually investigated respondents challenging Commerce's assignment of an all-others rate derived from prior reviews when all individually investigated respondents received a zero or de minimis rate. In Amanda Foods I, the court observed that the individually investigated respondents' zero or de minimis rates, when considered in the light of other recent investigations of shrimp producers and exporters from Vietnam, constituted “evidence indicating that the responding separate rate Plaintiffs may also no longer be engaged in dumping.” Amanda Foods I, 33 CIT at ––––, 647 F.Supp.2d at 1380. Therefore, because there was not “sufficient evidence on the record which could justify ignoring the evidence in favor of assigning a de minimis rate to Plaintiffs and which would support as reasonable the alternative rate chosen,” id. at 1381, the court remanded the case to Commerce to “either assign the Plaintiffs the weighted average rate of the mandatory respondents, or else ... provide justification ... for using another rate,” id. at 1382.

In its remand redetermination following Amanda Foods I, Commerce continued to defend its methodology, arguing that 19 U.S.C. § 1673d(c)(5) “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.” Amanda Foods II, 34 CIT at ––––, 714 F.Supp.2d at 1287 (internal quotation marks omitted). While the court in Amanda Foods II agreed with Commerce that § 1673d(c)(5)(A) expresses such a preference, id. at 1291, the court found unreasonable Commerce's reading of that preference into § 1673d(c)(5)(B), id. at 1291–92. The court found Commerce's reading unreasonable because it contravened the explicit statutory language that listed averaging of zero and de minimis rates as the sole example of a reasonable methodology for calculating the all-others rate when all individually investigated respondents receive such rates. Id. at 1292 (“By categorically excluding the mandatory respondents' zero and de minimis margins in calculating the separate rate, the methodology used on remand was unreasonable”). On these grounds, the court again remanded this issue to Commerce.

In its remand redetermination following Amanda Foods II, Commerce changed its methodology and chose to average the de minimis rates of the individually investigated respondents to arrive at the all-others rate. Amanda Foods III, 35 CIT at ––––, 774 F.Supp.2d at 1289–90. Commerce confirmed the accuracy of this rate by reopening the record to obtain, from the cooperative, non-individually investigated respondents, responses to supplementary Q & V Questionnaires detailing all sales during the period of review on a shrimp count-size specific basis. Id. Using the Q & V Questionnaire data, Commerce compared the count-size specific sales to the count-size specific weighted-average normal value of the mandatory respondents and concluded that the record did not show any evidence of dumping. Id. Satisfied that the rate determined by averaging the zero and de minimis margins of the individually investigated respondents was corroborated by the supplementary evidence, Commerce assigned that average rate as the all-others rate. Id. at 1290. In affirming Commerce's methodology, the court held that

[Commerce] has applied a methodology specifically contemplated in the AD statute as a reasonable approach under similar circumstances and has reasonably corroborated the resulting rates with supplemental record evidence that a reasonable mind could accept as sufficient to support its conclusion—that the average...