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

• Decision Date: 07 June 2016
• Docket Number: Slip Op. 16-55,Consol. Court No. 14-00109
• Citation: 179 F.Supp.3d 1256
• Parties: An Giang Fisheries Import and Export Joint Stock Company et al., Plaintiffs and Consolidated Plaintiffs, and Vietnam Association of Seafood Exporters and Producers et al., Plaintiff-Intervenor and Consolidated Plaintiff-Intervenors, v. United States, Defendant, Catfish Farmers of America et al., Defendant-Intervenor and Consolidated Defendant Intervenors.
• Court: U.S. Court of International Trade

179 F.Supp.3d 1256

An Giang Fisheries Import and Export Joint Stock Company et al., Plaintiffs and Consolidated Plaintiffs,

and

Vietnam Association of Seafood Exporters and Producers et al., Plaintiff-Intervenor and Consolidated Plaintiff-Intervenors,

v.United States, Defendant,Catfish Farmers of America et al., Defendant-Intervenor and Consolidated Defendant Intervenors.

Slip Op. 16-55

Consol. Court No. 14-00109

United States Court of International Trade.

June 7, 2016

Matthew Jon McConkey , Mayer Brown LLP, of Washington, DC, argued for plaintiffs An Giang Fisheries Import and Export Joint Stock Company et al.

Ned Herman Marshak , Andrew Thomas Schutz , and Dharmendra Narain Choudhary , Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY and Washington, DC, argued for consolidated plaintiff and plaintiff-intervenor Vietnam Association of Seafood Exporters and Producers. With them on the brief was Andrew Brehm Schroth .

John Joseph Kenkel , deKieffer & Horgan PLLC, of Washington, DC, argued for consolidated plaintiff Binh An Seafood Joint Stock Company. With him on the brief was J. Kevin Horgan .

Nazakhtar Nikakhtar and Jonathan Mario Zielinski , Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for consolidated plaintiffs and defendant-intervenors Catfish Farmers of America et al. With them on the brief was Nathaniel James Halvorson .

Ryan Michael Majerus , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Franklin E. White, Jr. , Assistant Director. Of Counsel on the brief was David W. Richardson , Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Kelly, Judge

This consolidated action comes before the court on USCIT Rule 56.2motions for judgment on the agency record, challenging the U.S. Department of Commerce's ("Department" or "Commerce") determination in the ninth administrative review of the antidumping duty order covering certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam"). See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 79 Fed. Reg. 19,053 (Dep't Commerce Apr. 7, 2014)(final results of antidumping duty administrative review and new shipper review; 2011–2012) ("Final Results"), as amended, 79 Fed. Reg. 37,714 (Dep't Commerce July 2, 2014)("Amended Final Results"); see also Certain Frozen Fish Fillets from the Socialist Republic of Vietnam:Issues and Decision Memorandum for the Final Results of the Ninth Administrative Review and Aligned Shipper Review, A-552-801, (Mar. 28, 2014), available at http://ia.ita.doc.gov/frn/summary/vietnam/2014-07714-1.pdf (last visited May 26, 2016) ("Final Decision Memo").

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, QVD Food Company Ltd., Southern Fishery Industries Company, Ltd., and Vinh Hoan Corporation (collectively "Agifish") commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2012).¹ See Summons, May 5, 2014, ECF No. 1. The court consolidated Agifish's challenge with actions filed by: (1) Catfish Farmers of America, an association of U.S. catfish processors and growers, and individual U.S. catfish processors, America's Catch, Alabama Catfish Inc., Heartland Catfish Company, Magnolia Processing, Inc., and Simmons Farm Raised Catfish, Inc. (collectively "CFA"); (2) Binh An Seafood Joint Stock Company ("Binh An"); and (3) Vietnam Association of Seafood Exporters and Producers, a trade association comprised of Vietnamese seafood producers and/or exporters ("VASEP"). See Order, Aug. 26, 2014, ECF No. 32. Each of the above named parties filed Rule 56.2motions challenging Commerce's final determination. See 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, QVD Food Company, Ltd., Southern Fishery Industries Company Ltd., and Vinh Hoan Corporation's Rule 56.2Mot. J. Upon Agency R., Jan. 27, 2015, ECF No. 48; Pls. Catfish Farmers of America, et al.'s Rule 56.2 Mot. J. Upon Agency R., Jan. 27, 2015, ECF No. 49; Consolidated Pl. Binh An Seafood Joint Stock Co. Ltd.'s Mot. J. Agency R., Jan. 27, 2015, ECF No. 47; Pl.'s Rule 56.2Mot. J. Upon Agency R., Jan. 27, 2015, ECF No. 46. In addition, CFA filed a response, as a defendant-intervenor, in opposition to motions by Agifish, VASEP, and Binh An. See Def.-Intervenors' Resp. Opp'n Pls.' Rule 56.2Mots. J. Agency R., July 29, 2015, ECF No. 79.

BACKGROUND

On September 26, 2012, Commerce initiated this ninth antidumping duty ("AD") administrative review covering subject imports entered during the period of review ("POR"), August 1, 2011 through July 31, 2012. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 59,168, 56,169 (Dep't Commerce Sept. 26, 2012).

In its preliminary determination, Commerce selected Indonesia as the primary surrogate country for obtaining surrogate values ("SV") for respondents' factors of production ("FOP") used to produce the subject merchandise. See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 78 Fed. Reg. 55,676 (Dep't Commerce Sept. 11, 2013)(preliminary results of the antidumping duty administrative review and new shipper review; 2011–2012) ("Prelim. Results"); see also Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Decision Memorandum for the Preliminary Results of the 2011–2012 Antidumping Duty Administrative Review and New Shipper Review at 18, A-552-801, (Sept. 3, 2013), available at http://ia.ita.doc.gov/frn/summary/vietnam/2013-22123-1.pdf (last visited May 26, 2016) ("Prelim. Decision Memo"). Commerce selected Vinh Hoan Corporation ("Vinh Hoan") and Hung Vuong Group ("HVG") as mandatory respondents, Prelim. Results, 78 Fed. Reg. at 55,676, initially assigning them weighted-average dumping margins of $0.42 per kilogram and $2.15 per kilogram, respectively. Id. at 55,677. Commerce assigned the average of these rates, $0.99 per kilogram, to the separate rate respondents that were not individually examined. Id. Commerce also assigned a weighted-average dumping margin of $2.11 per kilogram to those exporters subject to the order who did not rebut the presumption of government control (the "Vietnam-Wide Rate"). Id.

In its final determination, Commerce continued to select Indonesia as the primary surrogate country for valuing respondents' FOPs. Final Decision Memo at 7, 16. Commerce calculated final weighted-average dumping margins of $0.03 per kilogram for Vinh Hoan and $1.20 for HVG, from which Commerce assigned a rate of $0.42 per kilogram to the separate rate respondents. Final Results, 79 Fed. Reg. at 19,055. Commerce published amended final results on July 2, 2014, which altered the weighted-average dumping margin assigned to mandatory respondent Vinh Hoan to $0.00 per kilogram. Amended Final Results, 79 Fed. Reg. at 37,714. Commerce also changed the weighted-average dumping margin assigned to separate rate respondents to $1.20 per kilogram.² Id. The Vietnam-Wide Rate remained unaltered. Id.

Agifish, VASEP, and Binh An challenge Commerce's selection of Indonesia as the primary surrogate country. See Mem. Law Supp. Pls.' Rule 56.2Mot. J. Upon Agency R. 10–15, Jan. 27, 2015, ECF No. 48 ("Agifish Br."); Mem. Law Supp. Pl.'s Rule 56.2Mot. J. Upon Agency R. 7–35, Jan. 27, 2015, ECF No. 46 ("VASEP Br."); Mem. Law Supp. Consolidated Pl.'s Binh An Seafood Joint Stock Co., Ltd.'s Mot. J. Upon Agency R. 12–18, Jan. 27, 2015, ECF No. 47-1 ("Binh An Br."). Agifish also challenges Commerce's selection of SV data sources to value various FOPs used to produce the subject merchandise, including whole live fish, fingerlings, various fish farming FOPs, various byproducts, labor, and various expenses related to shipping, brokerage and handling. See Agifish Br. 16–45. Agifish challenges Commerce's decision to apply a "cap" or constructed value ("CV"), to obtain a SV for Vinh Hoan's fish oil byproduct rather than using Indonesian import data as is. See Agifish Br. 45–49. Agifish also challenges Commerce's consideration of arguments raised by CFA in its rebuttal case brief relating to SV data sources for certain FOPs. See Agifish Br. 49–51. CFA challenges Commerce's SV data selection to value respondents' pangasius feed FOP. See Am. Mem. Supp. Pls. Catfish Farmers of America, et al.'s Rule 56.2 Mot. J. Upon Agency R. 26–38, Jan. 29, 2015, ECF No. 54 ("CFA Br."). Finally, CFA challenges Commerce's determination to decline to adjust Vinh Hoan's margin calculation to exclude glazing weight.³ Defendant United States ("Defendant"), responds that the court should sustain Commerce's surrogate country selection and SV data selections. See Def.'s Resp. Consolidated Pls.' Rule 56.2Mot. J. Upon Agency R., July 29, 2015, ECF No. 75 ("Def.'s Resp. Br."). However, Defendant requests a voluntary remand to revisit its normal value ("NV") calculation with respect to glazing for Vinh Hoan. Id. at 92.

The court sustains Commerce's selection of Indonesia as the primary surrogate country. The court also sustains Commerce's determination to consider arguments relating to SV data selection raised by CFA in its rebuttal brief before the agency. The court sustains Commerce's SV data selections for the following FOPs: (1) whole live fish; (2) fingerlings; (3) fish feed; (4) sawdust; (5) ...