Amanda Foods (vietnam) Ltd. v. United States

• Decision Date: 14 April 2011
• Docket Number: Court No. 08–00301,Slip Op. 11–39.
• Citation: 774 F.Supp.2d 1286
• Parties: AMANDA FOODS (VIETNAM) LTD., et al., Plaintiffs,v.UNITED STATES, Defendant,andAd Hoc Shrimp Trade Action Committee, Defendant–Intervenor.
• Court: U.S. Court of International Trade

774 F.Supp.2d 1286

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

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

Court No. 08–00301,Slip Op. 11–39.

United States Court of International Trade.

Consol.1 Court No. 08–00301,Slip Op. 11–39.

April 14, 2011.

April 14, 2011.

Mayer Brown LLP (Matthew J. McConkey and Jeffery C. Lowe), Washington, DC, for Plaintiff Amanda Foods (Vietnam) Ltd.Thompson Hine LLP (Matthew R. Nicely and David S. Christy) and Winston & Strawn LLP (William H. Barringer), Washington, DC, 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.; and Phuong Nam Co., Ltd.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Washington, DC; 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, Attorney, Office of the Chief Counsel for Import Administration, Department of Commerce, for Defendant United States.Picard Kentz & Rowe LLP (Andrew W. Kentz, Jordan C. Kahn, and Nathaniel M. Rickard), for Defendant–Intervenor Ad Hoc Shrimp Trade Action Committee.

OPINION

POGUE, Chief Judge:

This consolidated action is again before the court following a second remand of the final results of the second administrative review of the antidumping (“AD”) duty order covering frozen warmwater shrimp from the Socialist Republic of Vietnam.²

At issue is the Department of Commerce's assignment, to Plaintiffs,³ of a dumping rate higher than the average of the zero and de minimis rates assigned to the individually investigated respondents in the review. ⁴

In its Second Remand Results, Commerce changed course and, after corroborating the reasonableness of doing so, assigned to the Plaintiffs the average of the zero and de minimis rates received by the individually investigated respondents. This decision comports with the court's remand order in Amanda II, relies on a reasonable interpretation of the AD statute, and is supported by substantial evidence. Therefore, as explained more fully below, the Second Remand Results are affirmed.

BACKGROUND⁵

A. Amanda I

In its original Final Results, rather than averaging the two mandatory respondents' zero and de minimis margins to calculate dumping margins for cooperative non-individually investigated respondents entitled to a separate rate (“Plaintiffs” or “the separate rate companies”), the Department of Commerce (“Commerce” or the “Department”) assigned to Plaintiffs the same rates assigned to them previously in the original investigation leading to the AD order. Final Results, 73 Fed.Reg. at 52,275. Those rates, of course, were based on sales made prior to the AD order.⁶ To Commerce, these rates were appropriate, as the most recent rate that Plaintiffs had received in a prior proceeding, because they were “reflective of the range of commercial behavior demonstrated by exporters of subject merchandise during a very recent period in time.” Id.

In Amanda I, the court found Commerce's decision unsupported by the record, as the factors cited—that thirty-five uncooperative companies received margins based on adverse facts available in the second review, and that Commerce found the circumstances of the second review to be similar to those of the preceding review ⁷—are unrelated to the pricing behavior of cooperative separate rate companies during the second POR. Amanda I, ––– CIT at ––––, 647 F.Supp.2d at 1381. The court therefore 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. Id. at 1382.

B. Amanda II

In its first remand redetermination, the Department continued to defend the rates assigned to Plaintiffs in the Final Results of the second review. First Remand Results 13. Specifically, the Department argued that the AD statute articulates a preference against the use of zero or de minimis margins when calculating rates for non-individually investigated respondents. Id. at 14. In addition to this statutory interpretation, the Department pointed to the presence of non-cooperative respondents in the first and second reviews, as well as the calculation of transaction-specific above- de minimis dumping margins for at least one mandatory respondent in the second review. To Commerce, these factors constituted evidence that continued dumping under the AD duty order made assigning to Plaintiffs the average of the mandatory respondents' zero and de minimis rates inappropriate in this case. Id. at 14–18.

In Amanda II, the court concluded that the Department's statutory interpretation was unreasonable and therefore not entitled to deference. As the court explained, the statute specifically contemplates, as potentially reasonable, the assignment to non-individually investigated companies of the average of the zero and de minimis rates received by individually investigated companies. Amanda II, ––– CIT at ––––, 714 F.Supp.2d at 1291–92. Consequently, Commerce's contrary prohibition on the use of these rates could not be reasonable. Furthermore, as a factual matter, the court concluded that neither the minimal transaction-specific positive dumping margins of one mandatory respondent nor the presumption of dumping imputed to non-cooperating respondents constituted substantial evidence in support of the rates assigned to the separate rate companies. Amanda II, 714 F.Supp.2d at 1292–96. The Department's first redetermination on remand therefore failed to comply with the court's remand order in Amanda I. Accordingly, the court again remanded, instructing the Department to “employ a reasonable method [for calculating Plaintiffs' rates], which may ‘includ[e] averaging the estimated weighted average dumping margins determined for the exporter and producers individually investigated.’ ” Id. at 1296 (quoting 19 U.S.C. § 1673d(c)(5)(B)). Moreover, the court instructed the Department to “assign to Plaintiffs dumping margins for the second POR which are reasonable considering the evidence on the record as a whole.” Id. The court also ordered that Commerce could reopen the evidentiary record to the extent necessary. Id. (noting that neither Petitioner nor the Plaintiffs objected to reopening the evidentiary record of this review).

C. Second Remand Results

In its second redetermination pursuant to court remand, in order to provide supplementary evidence sufficient to properly support the assignment of a rate to the separate rate companies, the Department reopened the record. Second Remand Results 4. Specifically, Commerce requested Plaintiffs to provide quantity and value (“Q & V”) data for all POR sales on a shrimp count-size specific basis. Id. at 5. The Department then compared the count-size specific data for each Plaintiff to the count-size specific weighted-average normal value of the mandatory respondents in the second administrative review. Id.⁸

“After having conducted these analyses, the Department determined that the record, with the additional count-size specific Q & V data, does not show evidence of dumping by the 23 Plaintiffs during this POR.” Id. Having thus corroborated the reasonableness of assigning to Plaintiffs the average of the mandatory respondents' zero and de minimis rates as their dumping rates for this POR, Commerce applied this methodology. Id. at 6.

While Plaintiffs “fully support” the Second Remand Results, Comments on the [ Second Remand Results ] on Behalf of [Pls.] 2, Defendant–Intervenor Ad Hoc Shrimp Trade Action Committee (“AHSTAC”), the Petitioner, argues that the Second Remand Results are contrary to law because Commerce's explanation for its determination of Plaintiffs' rates in this review does not comport with a reasonable reading of the statute.⁹

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.” Amanda II, ––– CIT at ––––, 714 F.Supp.2d at 1288 (quoting Jinan Yipin Corp. v. United States, ––– CIT ––––, 637 F.Supp.2d 1183, 1185 (2009) (citing 19 U.S.C. § 1516a(b)(1)(B)(i))).

DISCUSSION

Commerce's methodology for calculating separate rates for Plaintiffs in the Second Remand Results is a reasonable interpretation of the agency's authority under the AD statute, and was reasonably applied and supported by substantial evidence on the record.

As the court has previously observed, the statute does not address the methodology that Commerce must use when, as in this case, assigning dumping margins to companies that were not individually investigated in an administrative review. See Amanda II, ––– CIT at ––––, 714 F.Supp.2d at 1289 (explaining that Commerce generally relies in such situations on 19 U.S.C. § 1673d(c)(5) (the “all others rate” provision), which applies to investigations of sales at less than fair value prior to the imposition of an AD duty order).

In ...