Marine Harvest (Chile) S.A. v. U.S.

• Decision Date: 31 October 2002
• Docket Number: No. 01-00808.,SLIP.OP. 02-134.,01-00808.
• Citation: 244 F.Supp.2d 1364
• Parties: MARINE HARVEST (CHILE) S.A., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

244 F.Supp.2d 1364

MARINE HARVEST (CHILE) S.A., Plaintiff, v. UNITED STATES, Defendant.

SLIP.OP. 02-134.

No. 01-00808.

United States Court of International Trade.

October 31, 2002.

Arnold & Porter, Washington, DC (Michael T. Shor), for Plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director; (Lucius B. Lau), Assistant Director; Commercial Litigation Branch, Civil Division, Department of Justice; Glenn R, Butterton, Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel.

OPINION

BARZILAY, Judge.

I. INTRODUCTION

This case challenges an agency action taken within the purview of the United States antidumping laws and presents the court with a clear example of a case in which the facts compel the result. Two entities, now merged into one company, exported fresh Atlantic salmon from Chile to the United States. Despite the fact that only one of the companies was ever found to be selling its goods at less than fair value ¹ and even so at almost de minimis margins² and, further, for only one of the three examined periods, the merged company now has been forced to deposit millions of dollars with the United States government and compelled to undergo administrative reviews on its past and future entries. It seeks relief from this Court.

Plaintiff Marine Harvest (Chile) S.A. ("Marine Harvest") has filed a USCIT R. 56.2 Motion for Judgment Upon the Agency Record, challenging certain aspects of the Department of Commerce's ("Commerce" or "government") preliminary and final determinations of the changed circumstances review that it conducted concerning Marine Harvest. See Notice of Final Results of Changed Circumstances Antidumping Duty Review: Fresh Atlantic Salmon From Chile, 66 Fed Reg. 42,506 (Aug. 13, 2001) ("Changed Circumstances Final"); Notice of Initiation and Preliminary Results of Changed Circumstances Antidumping Duty Review: Fresh Atlantic Salmon From Chile, 65 Fed.Reg. 52,065 (Aug. 28, 2000) ("Changed Circumstances Preliminary"). The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c).

II. BACKGROUND

On June 12, 1997, the Coalition for Fan-Atlantic Salmon Trade ("FAST" or "domestic industry") petitioned Commerce to initiate a less-than-fair-value ("LTFV") investigation, alleging that imports of fresh Atlantic salmon from Chile³ were being, or were likely to be, sold in the United States at less than their fair value, and that such imports were materially injuring, or threatening material injury to, a U.S. industry. On July 10, 1997, Commerce began the LTFV investigation of fresh Atlantic salmon from Chile. See Initiation of Antidumping Duty Investigation: Fresh Atlantic Salmon from Chile, 62 Fed.Reg. 37,027 (July 10, 1997). After determining that it could not examine all Chilean producers and exporters, Commerce specifically investigated five leading Chilean producers including Marine Harvest and Pesquera Mares Australes Ltda. ("Mares Australes"). See id. On June 9, 1998, Commerce announced its final determination that "fresh Atlantic salmon from Chile [was] being sold, or [was] likely to be sold, in the United States at less than fair value." See Notice of Final Determination of Sales at Less Than Fair Value: Fresh Atlantic Salmon from. Chile, 63 Fed.Reg. 31,411, 31,412 (June 9, 1998). The weighted-average dumping margin percentages of Marine Harvest and Mares Australes were found to be 1.36 (de minimis ) and 2.24, respectively. See id. at 31,437. The dumping margin for Mares Australes was later corrected to 2.23 percent.

⁴

See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Fresh Atlantic Salmon from Chile, 63 Fed.Reg. 40,699, 40,700 (July 30, 1998) ("Amended Final"). Accordingly, Commerce excluded Marine Harvest from its final determination because its de minimis rate in the investigative stage meant that it was not dumping and, therefore, did not suspend liquidation on Marine Harvest's entries into the United States. See 19 U.S.C. § 1673d(a)(4) (1999). On July 28, 1998, the International Trade Commission ("ITC") issued an affirmative determination that "an industry in the United States [was] materially injured or threatened with material injury by reason of imports" of fresh Atlantic salmon from Chile.⁵

Fresh Atlantic Salmon from Chile, 63 Fed.Reg. 40,315 (July 28, 1998). On July 30, 1998, Commerce issued an antidumping duty order, announcing its intention to direct the United States Customs Service ("Customs") to "assess . . . antidumping duties on all unliquidated entries of fresh Atlantic salmon from Chile" at par with the estimated dumping margin percentages, starting on the date of the ITC injury determination. Amended Final at 40,700. Marine Harvest was excluded from the antidumping duty order. See 19 C.F.R. § 351.204(e)(1) (2002). Consequently, Customs was instructed not to collect antidumping duty cash deposits on Marine Harvest's entries into the United States.

On July 15, 1999, Nutreco B.V. ("Nutreco"), the Dutch parent company of Mares Australes, purchased all of the outstanding shares of Marine Harvest. See Pl's Mem. in Supp. of its Rule 56.2 Mot. For J. Upon the Agency R. ("Pl's Br.") at 3. On July 1, 2000, Mares Australes was merged into Marine Harvest and no longer existed as a legal entity.⁶ Id. at 4. In a June 22, 2000 letter, Mares Australes and Marine Harvest informed Commerce of the upcoming merger, urging it to treat the post-merger Marine Harvest as a continuation of the pre-merger Marine Harvest and thus to continue Marine Harvest's exclusion from the antidumping duty order. See Letter from Shor to Daley of June 22, 2000, at 8, in App. to Pl's Br.

After the initial LTFV investigation, Commerce continued to review entries of Mares Australes and later, Marine Harvest using its authority under two distinct statutory provisions. First, as to Mares Australes, Commerce started the normal administrative review process of the antidumping duty order on fresh Atlantic salmon from Chile. On August 30, 1999, Commerce initiated the first administrative review for the period covering United States sales between July 28, 1998 and June 30, 1999. See Initiation of Antidumping and Countervailing Duty Administrative Revieivs and Requests for Revocation in Part, 64 Fed.Reg. 47,167 (Aug. 30, 1999). On August 8, 2000, Commerce published the preliminary results of the first administrative review, where it determined, inter alia, a zero dumping margin for Mares Australes. See Notice of Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review: Fresh Atlantic Salmon From Chile, 65 Fed.Reg. 48,457, 48,463 (Aug. 8, 2000) ("First Administrative Preliminary"). On December 15, 2000, Commerce published the final results of the first administrative review, again determining Mares Australes' dumping margin to be zero. See Notice of Final Results of Antidumping Duty Administrative Review: Fresh Atlantic Salmon from Chile, 65 Fed.Reg. 78,472, 78,473 (Dec. 15, 2000) ("First Administrative Final"). On September 6, 2000, Commerce initiated the second review for the period covering sales between July 1, 1999 and June 30, 2000. See Initiation of Antidumping and Countervailing Duty Administrative Review and Requests for Revocation in Part, 65 Fed.Reg. 53,980 (Sept. 6, 2000). On April 9, 2001, Commerce published the preliminary results of the second administrative review. See Notice of Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review: Fresh Atlantic Salmon from Chile, 66 Fed.Reg. 18,431 (Apr. 9, 2001) ("Second Administrative Preliminary"). These announced Commerce's contention that "the record established] that Mares Australes and Marine Harvest were under common ownership by another company [and, therefore,] the two companies [were] affiliated under" 19 U.S.C. § 1677(33)(F).⁷ Id. at 18,433. This finding allowed Commerce to "collapse" the two companies, i.e. treat them as a single entity under Commerce's regulations.⁸ Id. In the final results of the second review period, Commerce again determined a dumping margin percentage of zero for Mares Australes. See Notice of Final Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review: Fresh Atlantic Salmon From Chile, 66 Fed.Reg. 42,505 (Aug. 13, 2001) {"Second Administrative Final"). On August 20, 2001, Commerce initiated the third administrative review for the period covering sales between July 1, 2000 and June 30, 2001. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 66 Fed.Reg. 43,570 (Aug. 20, 2001). In the preliminary results for the third administrative review period, Commerce determined a de minimis, 0.11 dumping margin for the post-merger Marine Harvest. See Notice of Preliminary Results of Antidumping Duty Administrative Review, Preliminary Determination to Revoke the Order in Part, and PaHial Rescission of Antidumping Duty Administrative Review: Fresh Atlantic Salmon from Chile, 67 Fed.Reg. 51,182, 51,191 (Aug. 7, 2002) ("Third Administrative Preliminary"). The final results for the third administrative review period are due December 5, 2002.

On August 27, 2002, Commerce initiated the fourth administrative review for the period covering sales between July 1, 2001 and June 30, 2002, and intends to issue the final results "not later than July 31, 2003." Initiation of Antidumping and Countervailing Duty Administrative Review and Requests for Revocation in Part, 67 Fed. Reg. 55,000 (Aug. 27, 2002).

In addition to conducting administrative reviews of the antidumping duty order that included Mares Australes, Commerce also began a "changed circumstances" review of the post-merger Marine Harvest under section 1675(b) of Title 19 to determine whether...