Godaco Seafood Joint Stock Co. v. United States

• Decision Date: 06 January 2021
• Docket Number: Consol. Court No. 18-00063,Slip Op. 21-3
• Citation: 494 F.Supp.3d 1294
• 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

494 F.Supp.3d 1294

GODACO SEAFOOD JOINT STOCK COMPANY, Plaintiff,andCan Tho Import-Export Joint Stock Company, et al., Consolidated Plaintiffs,

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

Slip Op. 21-3

Consol. Court No. 18-00063

United States Court of International Trade.

January 6, 2021

Andrew B. Schroth, Jordan C. Kahn, and Ned H. Marshak, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of Washington, D.C., for Plaintiff GODACO Seafood Joint Stock Company.

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

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

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

Kara M. Westercamp, Trial Attorney, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With her on the briefs were Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Ian A. McInerney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Jonathan M. Zielinski and James R. Cannon, Jr., Cassidy Levy Kent (USA) LLP, of Washington, D.C., for Defendant-Intervenors Catfish Farmers of America, Simmons Farm Raised Catfish, Inc., Magnolia Processing, Inc. (d/b/a Pride of the Pond), Heartland Catfish Company, Guidry's Catfish, Inc., Delta Pride Catfish, Inc., Consolidated Catfish Companies LLC (d/b/a Country Select Catfish), America's Catch, and Alabama Catfish Inc. (d/b/a Harvest Select Catfish, Inc.).

OPINION AND ORDER

Choe-Groves, Judge:

This case involves frozen fish fillets, including regular, shank, and strip fillets and portions thereof, of the species Pangasius Bocourti , Pangasius Hypophthalmus (also known as Pangasius Pangasius ), and Pangasius Micronemus from the Socialist Republic of Vietnam ("Vietnam"). This action arises from the thirteenth administrative review initiated in October 2016 by the U.S. Department of Commerce ("Commerce"). Certain Frozen Fish Fillets from the Socialist Republic of Vietnam ("Final Results"), 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; 2015–2016); see Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Mem. for the Final Results of the Thirteenth Antidumping Duty Admin. Review: 2015–2016, PD 337 (Mar. 14, 2018) ("IDM"); see also Certain Frozen Fish Fillets from the Socialist Republic of Vietnam ("Prelim. Results"), 82 Fed. Reg. 42,785 (Dep't Commerce Sept. 12, 2017) (preliminary results, preliminary determination of no shipments, and partial rescission of the antidumping duty administrative review; 2015–2016). Before the court are the Final Results of Redetermination Pursuant to Court Remand, ECF No. 77-1 ("Remand Results"), pursuant to the court's decision in GODACO Seafood Joint Stock Co. v. United States ("GODACO I"), 44 CIT ––––, 435 F. Supp. 3d 1342 (2020). For the reasons set forth in this opinion, the court sustains in part and remands in part the Remand Results.

BACKGROUND

The court presumes familiarity with the facts of this case. See GODACO I, 44 CIT at ––––, 435 F. Supp. 3d at 1346–50. In GODACO I, the court considered several Rule 56.2 motions for judgment on the agency record filed by the Parties. See id. at ––––, 435 F. Supp. 3d at 1347. The court sustained in part and remanded in part Commerce's Final Results. Id.

Commerce filed the Remand Results on July 21, 2020. Plaintiff GODACO Seafood Joint Stock Co. ("GODACO" or "Plaintiff") filed comments. Pl.'s Comments in Opp'n Remand Redetermination, ECF No. 79 ("GODACO Cmts."). Consolidated Plaintiffs Can Tho Import-Export Joint Stock Co., Green Farms Seafood Joint Stock Co., Hung Vuong Corp., NTSF Seafoods Joint Stock Co., and Vinh Quang Fisheries Corp. (collectively, "Consolidated Plaintiffs") filed comments jointly. Comments of Consol. Pls. [ ] on Final Results of Redetermination Pursuant to Court Remand, ECF No. 80 ("Consol. Pls. Cmts." or "Consolidated Plaintiffs' Comments"). Consolidated Plaintiffs' Comments incorporated by reference arguments made previously in the Memorandum in Support of Motion for Judgment Upon the Agency Record of Consolidated Plaintiffs Vinh Quang Fisheries Corp. et al. Mem. in Supp. of Mot. for J. Upon the Agency R. of Consol. Pls. Vinh Quang Fisheries Corp. et al., ECF No. 28-1 ("Consol. Pls. Mot. for J."). Consolidated Plaintiff Southern Fishery Industries Co. ("South Vina") filed a Rule 56.2 motion for judgment upon the agency record and a reply brief, which included arguments opposing the rate imposed by Commerce on South Vina. Consol. Pl. [South Vina]'s Rule 56.2 Mot. for J. Upon the Agency R., ECF No. 33 ("South Vina Mot. for J."); [Consol. Pl.] [South Vina] Reply Br., ECF No. 52.

The court refers collectively to Consolidated Plaintiffs and South Vina as "Separate Rate Plaintiffs." The court also refers collectively to parties not individually examined and assigned the all-others separate rate as "separate rate respondents." See generally Prelim. Results, 82 Fed. Reg. at 42,786 (listing additional companies, including Consolidated Plaintiffs, as separate rate respondents not individually examined.).

Defendant United States ("Defendant") responded. Def.'s Resp. Supp. Remand Redetermination, ECF No. 83 ("Def. Cmts."). Defendant-Intervenors Catfish Farmers of America, Simmons Farm Raised Catfish, Inc., Magnolia Processing, Inc. (d/b/a Pride of the Pond), Heartland Catfish Co., Guidry's Catfish, Inc., Delta Pride Catfish, Inc., Consolidated Catfish Cos. LLC (d/b/a Country Select Catfish), America's Catch, and Alabama Catfish, Inc. (d/b/a Harvest Select Catfish, Inc.) (collectively, "Defendant-Intervenors" or "Catfish Farmers of America") responded. [Catfish Farmers of America's] Comments Supp. of Remand Results, ECF No. 84 ("Catfish Farmers of America Cmts."). GODACO and Consolidated Plaintiff Golden Quality Seafood Corp. filed the joint appendix. J.A., ECF Nos. 85, 86 ("Joint Appendix"). GODACO filed two notices of supplemental authority. Notice of Suppl. Authority, Dec. 8, 2020, ECF No. 87 ("First Suppl. Authority"); Notice of Suppl. Authority, Dec. 28, 2020, ECF No. 89 ("Second Suppl. Authority").

ISSUES PRESENTED

This case presents the following issues:

1. Whether Commerce's application of adverse facts available ("AFA") to GODACO is supported by substantial evidence;

2. Whether Commerce's application of the AFA rate to GODACO is in accordance with the law; and

3. Whether Commerce's application of GODACO's rate to Separate Rate Plaintiffs is in accordance with the law.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). The court will hold unlawful any determination found to be unsupported by substantial evidence on the record or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Commerce's Application of AFA to GODACO

The first issue addressed by the court is whether Commerce's application of AFA to GODACO is supported by substantial evidence. Plaintiff challenges Commerce's application of total AFA to GODACO, contending that 1) GODACO provided all requested information to Commerce, and 2) GODACO cooperated to the best of its ability. GODACO Cmts. at 3–23. Defendant argues that Commerce's determinations that GODACO failed to provide necessary information and did not cooperate to the best of its ability in the administrative proceeding are supported by substantial evidence and asks the court to sustain Commerce's application of total AFA to GODACO. Def. Cmts. at 13–28.

If necessary information is not available on the record, or an interested party: (1) withholds information that has been requested, (2) fails to provide such information by the deadlines for submission of the information or in the form and manner requested, (3) significantly impedes a proceeding, or (4) provides such information but the information cannot be verified, then Commerce may rely on facts otherwise available. 19 U.S.C. § 1677e(a)(1), (2)(A)–(D). If a party fails to cooperate to the best of its ability, Commerce may use an inference adverse to the interests of that party in selecting from among the facts otherwise available. Id. § 1677e(b).

The U.S. Court of Appeals for the Federal Circuit has interpreted 19 U.S.C. § 1677e subsections (a) and (b) to have different purposes. See Mueller Comercial de Mexico, S. de R.L. De C.V. v. United States ("Mueller"), 753 F.3d 1227, 1232 (Fed. Cir. 2014) (discussing 19 U.S.C. § 1677e(a) – (b) ). Subsection (a) applies whether or not any party has failed to cooperate fully with the agency in its inquiry. Id. A respondent's mere failure to furnish requested information—for any reason —requires Commerce to resort to other sources of information to complete the factual record. Id. Subsection (b) applies only when Commerce makes a separate, additional determination that the respondent failed to cooperate by not acting to the best of its ability. 19 U.S.C. § 1677e(b) ; see also Canadian Solar Int'l Ltd. v. United States, 43 CIT ––––, ––––, 378 F. Supp. 3d 1292, 1320 (2019) (noting that "Commerce must invoke subsection (a) to reach subsection (b)"). A party fails to...