An Giang Fisheries Import & Export Joint Stock Co. v. United States

• Decision Date: 19 January 2018
• Docket Number: Slip Op. 18–4,Consol. Court No. 15–00044
• Citation: 284 F.Supp.3d 1350
• Parties: AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY, et al., Plaintiffs and Consolidated Plaintiffs, and Anvifish Joint Stock Company, et al., Plaintiff–Intervenors and Consolidated Plaintiff–Intervenors, v. UNITED STATES, Defendant, and Catfish Farmers of America, et al., Defendant–Intervenors and Consolidated Defendant–Intervenors.
• Court: U.S. Court of International Trade

284 F.Supp.3d 1350

AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY, et al., Plaintiffs and Consolidated Plaintiffs,

and

Anvifish Joint Stock Company, et al., Plaintiff–Intervenors and Consolidated Plaintiff–Intervenors,

v.UNITED STATES, Defendant,andCatfish Farmers of America, et al., Defendant–Intervenors and Consolidated Defendant–Intervenors.

Slip Op. 18–4

Consol. Court No. 15–00044

United States Court of International Trade.

January 19, 2018

Matthew Jon McConkey, Mayer Brown LLP, of Washington, DC, for plaintiffs and consolidated plaintiff-intervenors An Giang Fisheries Import and Export Joint Stock Company; Asia Commerce Fisheries Joint Stock Company; Cuu Long Fish Joint Stock Company; Hiep Thanh Seafood Joint Stock Company; International Development and Investment Corporation; NTSF Seafoods Joint Stock Company; Thuan An Production Trading and Services Co., Ltd.; and Vinh Quang Fisheries Joint Stock Company.

Andrew Brehm Schroth, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Hong Kong, S.A.R., and Ned Herman Marshak, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, and Andrew Thomas Schutz and Dharmendra Narain Choudhary, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington, DC, for plaintiff-intervenors and consolidated plaintiffs Anvifish Joint Stock Company; Asia Commerce Fisheries Joint Stock Company; Cadovimex II Seafood Import–Export and Processing Joint Stock Company; Dai Thanh Seafoods Company Limited; Fatifish Company Limited; Hoang Long Seafood Processing Company Limited; Nam Viet Corporation; East Sea Seafoods Limited Liability Company a/k/a East Sea Seafoods LLC; QVD Food Company Ltd.; Saigon–Mekong Fishery Co., Ltd.; and Can Tho Import–Export Joint Stock Company.

Kara Marie Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel on the brief was Nanda Srikantaiah, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Nazakhtar Nikakhtar, Heather Kay Pinnock, and Nina Ritu Tandon, Cassidy Levy Kent (USA) LLP, of Washington, DC, for defendant-intervenors and consolidated defendant-intervenors Catfish Farmers of America; America's Catch; Alabama Catfish Inc. d/b/a Harvest Select Catfish, Inc.; Heartland Catfish Company; Pride of the Pond; and Simmons Farm Raised Catfish, Inc.

OPINION AND ORDER

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Department" or "Commerce") remand redetermination filed pursuant to the court's decision in An Giang Fisheries Import and Export Joint Stock Company v. United States, 41 CIT ––––, 203 F.Supp.3d 1256 (2017) (" An Giang"). See Final Results of Redetermination Pursuant to An Giang Fisheries Import and Export Joint Stock Company et al. v. United States, 203 F.Supp.3d 1256 (2017), (June 21, 2017), ECF No. 133 ("Remand Results"); see also An Giang, 41 CIT ––––, 203 F.Supp.3d at 1294–95.

In An Giang, the court remanded Commerce's final determination in the tenth administrative review of the antidumping duty ("ADD") order on certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam") to further explain or reconsider Commerce's surrogate value data selection for fish feed and Commerce's decision not to grant Can Tho Import–Export Joint Stock Company ("CASEAMEX") separate rate status. See An Giang, 41 CIT at ––––, 203 F.Supp.3d at 1294–95 ; see generally Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 80 Fed. Reg. 2,394 (Dep't Commerce Jan. 16, 2015) (final results of [ADD] administrative review; 2012–2013) ("Final Results") and accompanying Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Memorandum for the Final Results of the Tenth [ADD] Administrative Review; 2012–2013, A–552–801, (Jan. 7, 2015), ECF No. 20 ("Final Decision Memo"); Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed. Reg. 47,909 (Dep't Commerce Aug. 12, 2003) (notice of [ADD] order). The period of review ("POR") for the tenth administrative review was August 1, 2012 through July 31, 2013. Final Results, 80 Fed. Reg. at 2,394.

On remand, Commerce provided further explanation of its determination to value respondents' fish feed using prices contained in the affidavit of Dr. Djumbuh Rukmono, an official from the Indonesian Ministry of Marine Affairs and Fisheries ("Rukmono Affidavit"). See Remand Results at 16–25; see also Petitioners' Surrogate Country Comments and Submission of Proposed Factor Values at Ex. 16–B, PD 182, bar code 3200753–04 (May 12, 2014) (containing the Rukmono Affidavit).¹

Commerce also provided further explanation of its determination to deny CASEAMEX separate rate status. Remand Results at 2–16. For the reasons that follow, Commerce's determinations in the Remand Results to value fish feed using the Rukmono Affidavit data and to deny CASEAMEX separate rate status are sustained.

BACKGROUND

The court presumes familiarity with the facts of this case as discussed in the previous opinion, see An Giang, 41 CIT at ––––, 203 F.Supp.3d at 1260–62, and here recounts the facts relevant to the court's present review of the Remand Results. In the tenth ADD administrative review, Commerce examined Hung Vuong Group ("HVG"), which includes An Giang Fisheries Import & Export Joint Stock Company and other exporters of subject merchandise, as the sole mandatory respondent. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Decision Memorandum for the Preliminary Results of the 2012–2013 [ADD] Administrative Review at 1 n.2, 2–3,8–9, PD 236, bar code 3213671–01 (July 2, 2014). Commerce also reviewed separate rate applications from 23 companies, including one from CASEAMEX. Id. at 6, 8. Pertinent here, in the final determination, Commerce did not rely on the prices contained in an article from the Indonesian magazine, Trobos Aqua ("Trobos Aqua Article"), and instead relied on the Rukmono Affidavit to value respondents' reported fish feed as a farming factor of production. See Final Decision Memo 35–40; see generally Rukmono Affidavit; An Giang Fisheries Import and Export Joint Stock Company—Direct Surrogate Values at Ex. 1.A, PD 159, bar code 3201162–02 (May 12, 2014) (containing the Trobos Aqua Article). Further, Commerce reconsidered its separate rate determination with respect to CASEAMEX and concluded that CASEAMEX failed to demonstrate independence in the selection of management. See Final Decision Memo at 5, 87; see also Memorandum re: Proprietary Analysis of Comment XXI: CASEAMEX—Separate Rate Status at 1, 4–7, CD 184, bar code 3251356–01 (Jan. 7, 2015) (providing Commerce's reasoning for denying CASEAMEX separate rate status in a separate confidential memorandum because Commerce's decision is based on business proprietary information).

In An Giang, the court sustained in part and remanded in part Commerce's determination in the tenth administrative review of the subject merchandise.² An Giang, 41 CIT at ––––, 203 F.Supp.3d at 1261–62, 1294–95. The court remanded the agency's selection of the Rukmono Affidavit to value fish feed. Id., 41 CIT at ––––, 203 F.Supp.3d at 1285–86, 1294–95. The court determined that Commerce did not reasonably explain why the Rukmono Affidavit "was representative of a broad-market average in this review," but not in the ninth administrative review. Id., 41 CIT at ––––, 203 F.Supp.3d at 1285. The court also determined that Commerce's decision to deny CASEAMEX separate rate status in the tenth administrative review was not supported by substantial evidence, id., 41 CIT at ––––, 203 F.Supp.3d at 1288–94, and remanded the issue accordingly. Id., 41 CIT at ––––, 203 F.Supp.3d at 1294–95. The court noted that Commerce failed to explain how the government of Vietnam, through [ [ ] ], referred to here as Mr. X, was able to influence, either directly or indirectly, "the actual selection of CASEAMEX's management [.]" Id., 41 CIT at ––––, 203 F.Supp.3d at 1290 (footnotes omitted) (citing Can Tho Import–Export Joint Stock Company (CASEAMEX) Separate Rate Application at Ex. 10 at Art. 25 ¶ 2, CD 46–51, bar codes 3168607–01–06 (Dec. 17, 2013) ("CASEAMEX SRA") ). The court also emphasized that Commerce did not, with sufficient clarity, explain why it deviated from its practice of "requiring that the government either actually appoint management or be directly or indirectly involved in the management of the company," relying instead "solely upon the government's potential to nominate a manager or a board member with control over day-to-day company operations." An Giang, 41 CIT at ––––, 203 F.Supp.3d at 1291–92 (citations omitted). In light of CASEAMEX's ability to point to record evidence demonstrating that the government was not able to, either directly or indirectly, exercise actual control over the selection of CASEAMEX's management, and Commerce's failure to explain its reliance on "potential control" when its practice has been to look for actual control, the court determined that CASEAMEX was able to rebut the presumption of de facto government control. See id., 41 CIT at ––––, 203 F.Supp.3d at 1291–94.

JURISDICTION AND STANDARD OF REVIEW

The court continues to have jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),³ and 28 U.S.C. § 1581(c) (2012), which grant the court authority to review actions contesting the final determination in an administrative review of an ADD order. Commerce's antidumping determinations must be in accordance with law and supported by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i). "The results of a redetermination pursuant to court remand are also...