Godaco Seafood Joint Stock Co. v. United States

• Decision Date: 01 April 2020
• Docket Number: Consol. Court No. 18-00063,Slip Op. 20-42
• Parties: GODACO SEAFOOD JOINT STOCK COMPANY, Plaintiff, and Can Tho Import-Export Joint Stock Company et al., Consolidated Plaintiffs, v. UNITED STATES, Defendant, and Catfish Farmers of America et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

435 F.Supp.3d 1342

GODACO SEAFOOD JOINT STOCK COMPANY, Plaintiff,

and

Can Tho Import-Export Joint Stock Company et al., Consolidated Plaintiffs,

v.UNITED STATES, Defendant,andCatfish Farmers of America et al., Defendant-Intervenors.

Slip Op. 20-42

Consol. Court No. 18-00063

United States Court of International Trade.

April 1, 2020

Andrew B. Schroth, Jordan C. Kahn, and Ned H. Marshak, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of Washington, D.C., argued for Plaintiff GODACO Seafood Joint Stock Company. With them on the briefs was Dhramendra N. Choudhary. Andrew T. Schutz and Michael S. Holton also appeared.

Kenneth N. Hammer, Trade Pacific, PLLC, of Washington, D.C., argued for Consolidated Plaintiff Can Tho Import-Export Joint Stock Company. With him on the briefs were Robert G. Gosselink and Jonathan M. Freed.

Jordan C. Kahn, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of Washington, D.C., argued for Consolidated Plaintiff Golden Quality Seafood Corporation. With him on the briefs was Andrew B. Schroth. Andrew T. Shutz, Dhramendra N. Choudhary, Michael S. Holton, and Ned H. Marshak also appeared.

Kenneth N. Hammer, Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington, D.C., argued for Consolidated Plaintiffs Vinh Quang Fisheries Corporation, NTSF Seafoods Joint Stock Company, Green Farms Seafood Joint Stock Company, and Hung Vuong Corporation.

John J. Kenkel, deKieffer & Horgan, PLLC, of Washington, D.C., argued for Consolidated Plaintiff Southern Fishery Industries Company, Ltd. With him on the briefs were Alexandra H. Salzman, Judith L. Holdsworth, and J. Kevin Horgan.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant United States. With her on the briefs were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Kara M. Westercamp, Trial Attorney. Of counsel was Ian A. McInerney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce. Kristen E. McCannon also appeared on the briefs.

Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP, of Washington, D.C., argued for Defendant-Intervenors Simmons Farm Raised Catfish, Inc., Magnolia Processing, Inc. (doing business as Pride of the Pond), Heartland Catfish Company, Guidry’s Catfish, Inc., Delta Pride Catfish, Inc., Consolidated Catfish Companies LLC (doing business as Country Select Catfish), Catfish Farmers of America, America’s Catch, and Alabama Catfish Inc. (doing business as Harvest Select Catfish, Inc.). With him on the briefs was James R. Cannon, Jr. Heather K. Pinnock, Jeffrey B. Denning, Nina R. Tandon, and Robert C. Cassidy, Jr. also appeared.

OPINION AND ORDER

Choe-Groves, Judge:

This action arises from the thirteenth administrative review of certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam") by the U.S. Department of Commerce ("Commerce"). Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 83 Fed. Reg. 12,717 (Dep't. Commerce Mar. 23, 2018) (final results, final results of no shipments, and partial rescission of the antidumping duty administrative review) ("Final Results"); see Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Mem. for the Final Results of the Thirteenth Antidumping Duty Administrative Review, P.R. 337 (Mar. 14, 2018) ("IDM"). Before the court are six motions for judgment on the agency record filed by Plaintiff GODACO Seafood Joint Stock Co. ("GODACO"), Consolidated Plaintiff Golden Quality Seafood Corp. ("Golden Quality"), Consolidated Plaintiffs Vinh Quang Fisheries Corporation ("Vinh Quang"), NTSF Seafoods Joint Stock Co. ("NTSF Seafoods"), Green Farms Seafood Joint Stock Co. ("Green Farms"), Hung Vuong Corp. ("Hung Vuong"), Can Tho Import-Export Joint Stock Co. ("CASEAMEX"), and Southern Fishery Industries Co., Ltd. ("South Vina"). For the reasons that follow, the court sustains in part and remands in part the Final Results to Commerce for further consideration.

ISSUES PRESENTED

This case presents the following issues:

1. Whether Commerce’s application of adverse facts available to GODACO is supported by substantial evidence;

2. Whether Commerce acted in accordance with 19 U.S.C. § 1677m ;

3. Whether Commerce’s refusal to verify GODACO’s submissions is in accordance with the law;

4. Whether Commerce’s rejection of GODACO’s rebuttal comments and case brief on the basis of untimely filed new factual information is supported by substantial evidence;

5. Whether Commerce’s rejection of Golden Quality’s review request withdrawal is in accordance with the law;

6. Whether South Vina exhausted administrative remedies; and

7. Whether the rate applied to the separate rate respondents is supported by substantial evidence and in accordance with the law.

BACKGROUND

Commerce initiated the thirteenth administrative review of the antidumping duty order on certain frozen fish fillets from Vietnam covering shipments for the period of August 1, 2015 through July 31, 2016. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 71,061, 71,063 –64 (Dep't. Commerce Oct. 14, 2016). Commerce selected GODACO and Golden Quality as mandatory respondents. Commerce’s Selection of Respondents for Individual Review Mem., P.R. 73 (Feb. 22, 2017).

Parties seeking to withdraw from the administrative review were required to request withdrawal within ninety days of publication of the notice of initiation, by January 12, 2017. 81 Fed. Reg. at 71,062. On January 12, 2017, the petitioners in the administrative action below withdrew their review request for forty-eight companies, including Golden Quality. Petitioner’s Withdrawal Request, P.R. 69 (Jan. 12, 2017). Golden Quality sought to withdraw its request for review on January 23, 2017. Golden Quality Withdrawal Request, P.R. 71 (Jan. 23, 2017). Commerce issued nonmarket economy ("NME") antidumping duty questionnaires to GODACO and Golden Quality on February 24, 2017. Commerce’s Antidumping Duty Questionnaire and Accompanying Appendices to GODACO, P.R. 79–82 (Feb. 23, 2017); Commerce’s Antidumping Duty Questionnaire and Accompanying Appendices to Golden Quality, P.R. 75–78 (Feb. 23, 2017). Golden Quality’s Section A Questionnaire was due on March 17, 2017. Letter from U.S. Dep't. of Commerce to Golden Quality Seafood Corp., P.R. 75–78 (Feb. 24, 2017). In March, prior to the Section A Questionnaire due date, Golden Quality reiterated its intention not to participate in the thirteenth administrative review. Letter from Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP to U.S. Dep't. of Commerce, P.R. 85 (Mar. 4, 2017). GODACO’s Section A Questionnaire Response was due on March 17, 2017, and the Section C and D responses were due on April 2, 2017. Commerce’s Antidumping Duty Questionnaire and Accompanying Appendices to Golden Quality, P.R. 79–82 (Feb. 23, 2017). Commerce granted GODACO an extension to submit its Section A Questionnaire Response until March 24, 2017. U.S. Dep't. of Commerce Mem. to File from P. Walker, P.R. 89 (Mar. 14, 2017).

Commerce issued a supplemental questionnaire to GODACO on June 13, 2017. Supplemental Questionnaire for GODACO, P.R. 176, C.R. 142 (June 13, 2017) ("GODACO’s Suppl. Questionnaire"). On June 20, 2017, GODACO asked Commerce to limit the scope of its reporting requirements for certain questions in GODACO’s Suppl. Questionnaire. Letter from Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP to U.S. Dep't. of Commerce, P.R. 184 (June 20, 2017). Commerce issued revisions to its supplemental questionnaire. Letter from U.S. Dep't. of Commerce to GODACO Seafood Joint Stock Co., P.R. 193, C.R. 156 (July 5, 2017). GODACO responded to the revised supplemental questionnaire. GODACO Seafood Joint Stock Company Supplemental Questionnaire Response, P.R. 197–98, C.R. 158–59, C.R. 160–186 (July 17, 2017) ("GODACO’s SQR").

The eventual Defendant-Intervenors in this action filed comments on GODACO’s SQR. Letter from Cassidy Levy Kent (USA) LLP to U.S. Dep't. of Commerce, P.R. 233–37, C.R. 189–93 (Aug. 1, 2017). GODACO requested an extension to submit rebuttal comments, which Commerce granted, and GODACO submitted timely rebuttal comments. GODACO Seafood Joint Stock Co. Rejected Rebuttal Comments, P.R. 265, C.R. 202–04 (Aug. 14, 2017) ("GODACO’s Rejected Rebuttal"); U.S. Dep't. of Commerce Mem., P.R. 262 (Aug. 9, 2017). Commerce rejected GODACO’s rebuttal comments. Letter from U.S. Dep't. of Commerce to GODACO Seafood Joint Stock Co., P.R. 274 (Aug. 15, 2017) ("Commerce’s Rejection of GODACO’s Rebuttal"). GODACO submitted revised rebuttal comments. GODACO Seafood Joint Stock Co. Revised Rebuttal Comments, P.R. 275, C.R. 225–27 (Aug. 16, 2017).

Commerce issued its Preliminary Results on September 12, 2017. Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Preliminary Results, Preliminary Determination of No Shipments, and Partial Rescission of the Antidumping Duty Administrative Review; 2015–2016, 82 Fed. Reg. 42,785 (Sept. 12, 2017) ("PDM"). Commerce noted GODACO’s failure to respond to Commerce’s request for CONNUM-specific factors of production.¹ PDM at 15–18. In the Preliminary Results, Commerce assigned: (1) GODACO a rate of $2.39/kg as facts available with an adverse inference, (2) Golden Quality the Vietnam-wide entity rate of $2.39/kg because it did not demonstrate eligibility for a separate rate, and (3) GODACO’s rate to the separate rate respondents. Id. Commerce omitted South Vina from the Preliminary Results’ separate rate analysis and omitted South Vina in its list of separate rate companies. Id.

Commerce rejected GODACO’s administrative case brief as containing untimely filed new factual information. GODACO’s Rejected Admin. Case Br., P.R. 317 (Feb. 5, 2018) ("GODACO’s Rejected Br."); Rejection of GODACO’s Admin. Case Br., P.R. 327 (Feb. 14, 2018) ...