East Sea Seafoods LLC v. United States, Slip Op. 10-42.

• Citation: 703 F.Supp.2d 1336
• Decision Date: 19 April 2010
• Docket Number: Court No. 10-00102.,Slip Op. 10-42.
• Parties: EAST SEA SEAFOODS LLC, Plaintiff,v.UNITED STATES, Defendant,andCatfish Farmers of America, Defendant-Intervenor.
• Court: U.S. Court of International Trade

703 F.Supp.2d 1336

International Trade.

EAST SEA SEAFOODS LLC, Plaintiff,v.UNITED STATES, Defendant,andCatfish Farmers of America, Defendant-Intervenor.

Slip Op. 10-42.

Court No. 10-00102.

United States Court of

April 19, 2010.

COPYRIGHT MATERIAL OMITTED

Arent Fox LLP (John M. Gurley, Diana Dimitriuc-Quaia, Matthew L. Kanna, Nancy Aileen Noonan), for Plaintiff.

Tony West, Assistant Attorney General, Teanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Courtney S. McNamara, Claudia Burke); David W. Richardson, of counsel, Office of the Chief Counsel for Import Administration, Department of Commerce, for Defendant.

Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC (Valerie A. Slater, Jaehong David Park, Jarrod Mark Goldfeder, Natalya Daria Dobrowolsky, Nicole Marie D'Avanzo), for Defendant-Intervenor.

Opinion & Order

CARMAN, Judge:

Plaintiff East Sea Seafoods LLC (“ESS LLC” or “Plaintiff”) is an importer of frozen fish fillets from the Socialist Republic of Vietnam subject to antidumping duty order A-552-801 ( Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed.Reg. 47,909 (Aug. 12, 2003) (“AD Duty Order”)). (Doc. No. 6, Compl.¶ 6.) ESS LLC contests the final results of the fifth administrative review (“5th AR”) of the AD Duty Order. Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of the Antidumping Duty Administrative Review and New Shipper Review, 75 Fed.Reg. 12726 (Mar. 17, 2010) (the “Final Results”).

Plaintiff filed suit on March 19, 2010, concurrently filing an Application for a Temporary Restraining Order (“TRO”) and a Motion for Preliminary Injunction (“PI”). (Doc. No. 8.) The Court denied the TRO application the same day it was filed, and scheduled a hearing on the PI motion for March 25, 2010 (“PI Hearing”). (Doc. No. 15.)

At the PI Hearing, the parties agreed that Plaintiff's motion for preliminary injunction was severable into two components. Defendant and Defendant-Intervenor ¹ consented to the first component, an injunction prohibiting the liquidation of ESS LLC's and East Sea Seafoods Joint Venture Company's [ESS JVC] subject entries during the pendency of this action, including all appeals, and the Court granted that component of the motion by an order entered on March 25, 2010. (Doc. No. 30.) The second component of Plaintiff's motion for preliminary injunction requested that United States Customs and Border Protection (“CBP”) be ordered “to refrain from collecting antidumping duty cash deposits at the Vietnam-wide entity rate of $2.11 per kilogram on imports” of Plaintiff's product, “and instead collect a cash deposit on such imports at the antidumping duty rate of $0.02 per kilogram, determined for [ESS JVC] in this proceeding.” (Doc. No. 16 (“PL's PI Mem.”) at 1-2.) ESS LLC claimed a right to this relief on the grounds that Commerce required ESS LLC to pay cash deposits at the Vietnam-wide entity rate, rather than at ESS JVC's rate, after wrongly determining that Plaintiff was not the successor-in-interest to ESS JVC. (PL's PI Mem. at 6-7.) Defendant and Defendant-Intervenor opposed this component of Plaintiff's PI motion. (Doc. No. 29 (“Def.'s PI Opp.”).) ²

The Court took the second component of Plaintiff's PI Motion under advisement and held its decision in abeyance. Meanwhile, in light of ESS LLC's claim of imminent irreparable harm, the Court entered a scheduling order on March 26, 2010 (Doc. No. 33), and an amended scheduling order on March 29, 2010 (Doc. No. 35), in order to directly reach the merits of the action via an expedited USCIT R. 56.2 Motion for Judgment on the Agency Record. Pursuant to those orders, the United States timely filed an index of the administrative record (Doc. No. 37) and Plaintiff filed its R. 56.2 Motion and accompanying brief (Doc. No. 39 (“Pl's 56.2 Mem.”)) on April 1, 2010. On April 7, 2010, Commerce filed the official administrative record with the Court (Doc. No. 45) and Defendant and Defendant-Intervenor filed opposition briefs (Doc. Nos. 47 (“Def.'s 56.2 Opp.”) and 48 (“Def.-Int.'s 56.2 Opp.”), respectively). On April 9, 2010, the Court granted Plaintiff leave to file a reply (Doc. No. 51 (“PL's 56.2 Reply”)), and Defendant leave to file a sur-reply (Doc. No. 52 (“Def.'s 56.2 Sur-Reply”)).

The Court has considered the administrative record, the positions expressed by the parties, and all relevant provisions of law. The Court affirms the decision of Commerce that ESS LLC is not a successor-in-interest to ESS JVC because that determination was based upon substantial evidence and made in accordance with law. Plaintiff's 56.2 motion is therefore denied as to the successor-in-interest issue.

The Court, however, finds unlawful Commerce's decision to assign ESS LLC the Vietnam-wide entity rate without first considering evidence on the record that specifically addresses the extent to which ESS LLC is de facto and de jure independent from the control of the government of Vietnam. The Court also finds that the decision of Commerce to order liquidation of entries by ESS JVC at the rate assigned to ESS LLC for all entries made after the effective date of the name change is not supported by substantial evidence in the record or otherwise in accordance with law.

The Court therefore remands this case to Commerce. On remand, Commerce must consider all of the evidence in the administrative record pertaining to ESS LLC's de jure and de facto independence from the Vietnamese government and make a finding as to whether ESS LLC has rebutted the presumption of government control. Upon a finding that ESS LLC is independent of the control of the Vietnamese government, Commerce must assign a separate cash deposit rate to ESS LLC that is supported by substantial evidence and is otherwise in accordance with law, and shall immediately issue liquidation instructions to CBP adjusting the cash deposit rate for ESS LLC accordingly. Any finding by Commerce that ESS LLC is not independent of the control of the Vietnamese government must explain why the presumption has not been rebutted, and why the evidence found sufficient in the Preliminary Results to establish ESS JVC's independence from the Vietnamese government is insufficient to establish the same for ESS LLC.

Commerce must also provide a reasoned explanation, supported by evidence in the record, for why entries shipped by ESS JVC but entered after the effective date of the name change should be treated as entries made by ESS LLC. If Commerce determines on remand that all entries shipped by ESS JVC should be given the rate assigned to ESS JVC of $0.02 per kilogram, it shall amend the liquidation instructions accordingly.

The results of Commerce's remand determination shall be filed with the Court no later than April 27, 2010.

As the Court has ruled on the merits of Plaintiff's claim, the remaining component of Plaintiff's Motion for Preliminary Injunction is denied as moot.

Background

I Antidumping Duty Order

The AD Duty Order at issue in this case established a Vietnam-wide entity rate of 63.88%. See 68 Fed.Reg. at 47,910. The 63.88% dumping margin was based on Commerce's findings that Vietnam was a non-market economy (“NME”) and the application of adverse facts available “consistent with ... previous cases in which the respondent is considered uncooperative.” Notice of Final Antidumping Duty Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed.Reg. 37,116, 37,119-20 (June 23, 2003). Neither ESS JVC nor ESS LLC were parties to the investigation. See AD Duty Order. ESS JVC first began exporting subject merchandise during the period of review (“POR”) covered by the third annual review of the AD Duty Order, at which time Commerce granted ESS JVC's separate rate application and calculated ESS JVC's individual dumping margin and cash deposit rate as 0.0%. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of Antidumping Duty Administrative Review and Partial Rescission, 73 Fed.Reg. 15,479 (Mar. 24, 2008). The fourth annual review was rescinded as to ESS JVC because it made no entries of the subject merchandise during that POR. See Frozen Fish Fillets from Vietnam: Notice of Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Administrative Review, 73 Fed.Reg. 11,391 (Mar. 3, 2008).

II. Fifth Administrative Review

At the heart of this case is a great deal of confusion about which East Sea Seafoods company (ESS JVC or ESS LLC) was filing documents with the agency, at what time, and on whose behalf. This portion of the background describes all the relevant filings of ESS JVC and ESS LLC in the 5th AR, with particular attention to those details.

A. Notices of Opportunity to Request and Initiation

On August 1, 2008, Commerce published a notice of the opportunity to request a fifth administrative review of AD Duty Order for the POR covering August 1, 2007 through July 31, 2008. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 73 Fed.Reg. 44,966 (Aug. 1, 2008) (“5th AR Request Notice”). (PR ³ 1.) Commerce received seven letters requesting administrative review (PR 2-8), including one submitted on August 28, 2008 by counsel for Plaintiff in the current action (PR 3), which requested administrative review “on behalf of East Sea Seafoods Joint Venture Co., Ltd.” The August 28, 2008 letter made no mention of or reference to ESS LLC. (PR 3.)

On September 30, 2008, Commerce published a notice of the initiation of the 5th AR of the AD Duty Order. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 73 Fed.Reg. 56,795,...