Huaiyin Foreign Trade v. U.S. Dept. of Commerce

• Decision Date: 30 April 2002
• Docket Number: Slip Op. 02-42.,Court No. 00-05-00240.
• Citation: 201 F.Supp.2d 1351
• Parties: HUAIYIN FOREIGN TRADE CORPORATION (30); Worldwide Link, Inc.; Captain Charlie Seafood Wholesale Co., USA; Boston Seafood Processors, Inc.; GMRI, Inc.; Ocean Duke Corporation, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant, and Crawfish Processors Alliance; Louisiana Department of Agriculture & Forestry and Bob Odom, Commissioner Defendant-Intervenors.
• Court: U.S. Court of International Trade

Page 1351

201 F.Supp.2d 1351

HUAIYIN FOREIGN TRADE CORPORATION (30); Worldwide Link, Inc.; Captain Charlie Seafood Wholesale Co., USA; Boston Seafood Processors, Inc.; GMRI, Inc.; Ocean Duke Corporation, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant, and Crawfish Processors Alliance; Louisiana Department of Agriculture & Forestry and Bob Odom, Commissioner Defendant-Intervenors.

Slip Op. 02-42.

Court No. 00-05-00240.

United States Court of International Trade.

April 30, 2002.

Garvey, Schubert & Barer (William E. Perry and John C. Kalitka) Washington, DC, for Plaintiffs Huaiyin Foreign Trade Corporation (30), Worldwide Link, Inc., Captain Charlie Seafood Wholesale Co., USA, Boston Seafood Processors, Inc., GMRI, Inc., and Ocean Duke Corporation.

Robert D. McCallum, Jr., Deputy Assistant Attorney General, Atlanta, GA; David M. Cohen, Director, United States Department of Justice; Velta A. Melnbrencis, Assistant Director, United States Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for United States Dept. of Commerce.

Adduci, Mastriani & Schaumberg, L.L.P. (James Taylor, Jr. and John C. Steinberger) for Defendant-Intervenors Crawfish Processors Alliance, Louisiana Department of Agriculture & Forestry and Bob Odom, Commissioner.

OPINION

EATON, Judge.

This matter is before the court on the motion of Huaiyin Foreign Trade Corporation 30 ("Huaiyin 30"), Worldwide Link, Inc., Captain Charlie Seafood Wholesale Co., USA, Boston Seafood Processors, Inc., GMRI, Inc., ("GMRI/Red Lobster") and Ocean Duke Corporation¹ (collectively "Plaintiffs") for judgment upon the agency record pursuant to USCIT R. 56.2. Plaintiffs challenge certain aspects of the first administrative review of the antidumping duty order covering imports of freshwater crawfish tail meat from the People's Republic of China ("PRC") for the period of March 26, 1997, through August 31, 1998. See Freshwater Crawfish Tail Meat From the P.R.C.: Final Results of Administrative Antidumping Duty and New Shipper Reviews, and Final Rescission of New Shipper Review, 65 Fed.Reg. 20,948 (Apr. 19, 2000) ("Final Results"). The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(i)(I). Where a party challenges the findings of an antidumping review, the court will hold unlawful "any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law ...." 19 U.S.C. § 1516a(b)(1)(B)(i). For the reasons set forth below, the court denies Plaintiffs' motion and the final determination of the United States Department of Commerce is sustained.

BACKGROUND

On September 20, 1996, the Crawfish Processors Alliance ("Petitioner"), on behalf of the domestic industry, filed a petition with the United States Department of Commerce ("Commerce") alleging that imports of freshwater crawfish tail meat from the PRC were being sold, or were likely to be sold, in the United States at less than fair value. See Freshwater Crawfish Tail Meat From the P.R.C.; Initiation of Antidumping Investigation, 61 Fed.Reg. 54,154 (Oct. 17, 1996).² Following receipt of the petition, Commerce initiated an investigation and sent antidumping questionnaires to various PRC freshwater crawfish tail meat exporters and producers. See Notice of Prelim. Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat From the P.R.C., 62 Fed.Reg. 14,392, 14,393 (Mar. 26, 1997) ("Investigation Prelim. Determination"). Questionnaire responses were received from numerous companies,³ including Huaiyin Foreign Trade Corporation ("HFTC").⁴ Plaintiff Huaiyin 30, an entity unrelated to HFTC, took no part in the proceedings.⁵ As it had done previously, Commerce treated the PRC as a nonmarket economy country⁶ and, thus, companies wishing to receive a company-specific antidumping duty margin were required to demonstrate an absence of state control. Id. at 14,394. In its questionnaire response, HFTC indicated that it was applying for a separate company-specific margin. Id.

In August of 1997, Commerce completed its investigation and established antidumping duty margins for individual producers and for the PRC as a whole. HFTC demonstrated the requisite absence of state control and, thus, its company-specific antidumping duty margin was set at 91.5 percent. See Notice of Final Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat From the P.R.C., 62 Fed.Reg. 41,347, 41,349 (Aug. 1, 1997), amended by, Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish Tail Meat From the P.R.C., 62 Fed.Reg. 48,219 (Sept. 15, 1997) ("The ad valorem weighted-average dumping margins are as follows ... Huaiyin Foreign Trading Corporation ... 91.50" percent.) ("LTFV Final Determination"). As Plaintiff Huaiyin 30 took no part in the proceedings, it was assigned the PRC-wide antidumping duty margin of 201.63 percent, as were all other exporters of crawfish tail meat that did not establish their independence from government control. See id. at 41,349 ("We are applying a single antidumping [PRC] rate ... to all exporters in the PRC other than those firms that were fully responsive to our requests for information."). Commerce based this "determination ... on [the] presumption that the export activities of the companies that failed to" demonstrate the absence of state control "are controlled by the PRC government." Id. (citation omitted). Therefore, because it did not qualify for a separate rate in the investigation, Plaintiff Huaiyin 30 was assigned the PRC-wide antidumping duty margin of 201.63 percent. (See Issue and Decision Mem., 04/07/2000, Pub. R. Doc. 214 at 124 ("[Plaintiff Huaiyin 30] has never qualified for a separate rate, either in this review or the LTFV investigation ....").)

According to Plaintiffs, following the issuance of the LTFV Final Determination, events transpired outside of the context of any Commerce proceeding that affected the subsequent course of events. First, upon learning that HFTC had received a lower rate than Plaintiff Huaiyin 30, the local PRC government concluded that Plaintiff Huaiyin 30 should take advantage of HFTC's lower rate:

After the 1996 crawfish investigation, HFTC[] got a relatively low antidumping duty rate while [Plaintiff] Huaiyin 30 got a much higher rate. [Plaintiff] Huaiyin 30 and other local crawfish exporters wanted to use HFTC['s] low rate. HFTC[] was unhappy about this and asked the Committee for assistance.... [T]he Committee and other local companies felt that HFTC[] should share its rate with other local exporters.

(Pls.' Mem. Supp. Mot. J. Agency R. at 8 (citing Committee Verification Report, Pub R. Doc. 185 at 3) (emphasis in Pls.' Mem.).) Thus, despite having been assigned the PRC-wide antidumping duty margin of 201.63 percent, Plaintiff Huaiyin 30 took advantage of HFTC's separate company-specific antidumping duty margin of 91.5 percent when exporting its product to the United States. This decision on the part of the local PRC government appears to have raised questions in the minds of Plaintiff Huaiyin 30's customers who consequently made inquiries. On this point, Plaintiffs state that GMRI/Red Lobster:

[M]et with the Vice Director of the China Commodities Inspection Bureau ... and the Vice General Manager of [Plaintiff Huaiyin] 30 .... These gentleman assured [GMRI/Red Lobster that Plaintiff Huaiyin] 30 was entitled to the 91.5% tariff. When asked ... for documentation they produced a circular from their industry association which clearly stated Huaiyin Foreign Trade Corporation was entitled to the 91.5% tariff. They also produced a letter from the U.S. Embassy in Beijing which stated Huaiyin Foreign Trade Corp., without specifying numbers, had the benefit of the 91.5% tariff. The officials with whom [GMRI/Red Lobster] were meeting proffered those documents as substantiation for their representation [that] any crawfish purchased from [Plaintiff Huaiyin] 30 could be imported into the U.S. under the 91.5% rate.

(Response of Worldwide Link, Inc., et al., Supplemental Questionnaire of 02/17/00, Pub. R. Doc. 172 at 7; see also Pls.' Mem Supp. Mot. J. Agency R. at 6). In addition, Plaintiffs assert that,

GMRI/Red Lobster, made numerous attempts to contact the U.S. government, including [Commerce] to determine whether the 91.5% cash deposit rate for Huaiyin Foreign Trade Corp. applied to [Plaintiff] Huaiyin 30 before importing crawfish from [Plaintiff] Huaiyin 30. Red Lobster contacted [Plaintiff] Huaiyin 30 and [HFTC], the U.S. Embassy and [Commerce] itself seeking clarification in the summer of 1998. After seeking such clarification and receiving only a copy of the antidumping order with the 91.5% cash deposit rate for Huaiyin Foreign Trade Corp., in the summer of 1998, Red Lobster imported the crawfish from [Plaintiff] Huaiyin 30 relying on the language in the antidumping order.

(Pls.' Mem. to Commerce of 11/14/99, Pub. R. Doc. 125 at 15-16; see also Pls.' Mem. Supp. Mot. J. Agency R. at 37-38.)

The antidumping order remained unchallenged until September 1998. At that time, Commerce "received a request from [Petitioner] to conduct an administrative review of the antidumping order on freshwater crawfish tail meat from the PRC." See Notice of Preliminary Results of Antidumping Duty Administrative Review and New Shipper Reviews, Partial Rescission of the Antidumping Duty Administrative Review, and Rescission of the New Shipper Review for Yancheng Baolong Biochemical Products, Co. Ltd.: Freshwater Crawfish Tail Meat From the P.R.C., 64 Fed.Reg. 55,236, 55,237 (Oct. 12, 1999) ("Prelim.Results"). In its request, Petitioner identified certain exporters of crawfish tail meat, including "Huaiyin Foreign Trade Corp." for review. (See letter from Ablondi & Foster to Commerce of 9/30/98, Pub. R. Doc. 3 at 2)...