NTSF Seafoods Joint Stock Co. v. United States

• Decision Date: 21 December 2020
• Docket Number: Court No. 19-00063,Slip Op. 20-180
• Parties: NTSF SEAFOODS JOINT STOCK COMPANY and Vinh Quang Fisheries Corporation, Plaintiffs, v. UNITED STATES, Defendant, and Catfish Farmers of America, Alabama Catfish Inc., America's Catch, Consolidated Catfish Companies LLC, Delta Pride Catfish, Inc., Guidry's Catfish, Inc., Heartland Catfish Company, Magnolia Processing, Inc., and Simmons Farm Raised Catfish, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

487 F.Supp.3d 1310

NTSF SEAFOODS JOINT STOCK COMPANY and Vinh Quang Fisheries Corporation, Plaintiffs,

v.UNITED STATES, Defendant,andCatfish Farmers of America, Alabama Catfish Inc., America's Catch, Consolidated Catfish Companies LLC, Delta Pride Catfish, Inc., Guidry's Catfish, Inc., Heartland Catfish Company, Magnolia Processing, Inc., and Simmons Farm Raised Catfish, Inc., Defendant-Intervenors.

Slip Op. 20-180

Court No. 19-00063

United States Court of International Trade.

December 21, 2020

Kenneth N. Hammer and Jonathan M. Freed, Trade Pacific, PLLC, of Washington, D.C., argued for Plaintiffs NTSF Seafoods Joint Stock Company and Vinh Quang Fisheries Corporation. With them on the brief was Robert G. Gosselink.

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

Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP, of Washington, D.C., argued for Defendant-Intervenors Catfish Farmers of America, Alabama Catfish Inc., America's Catch, Consolidated Catfish Companies LLC, Delta Pride Catfish, Inc., Guidry's Catfish, Inc., Heartland Catfish Company, Magnolia Processing, Inc., and Simmons Farm Raised Catfish, Inc. With him on the brief was James R. Cannon.

OPINION AND ORDER

Choe-Groves, Judge:

Choe-Groves, Judge: This case involves frozen fish fillets, including regular, shank, and strip fillets and portions thereof, of the species Pangasius Bocourti , Panganius Hypophthalmus (also known as Pangasius Pangasius ) and Pangasius Micronemus. Plaintiffs NTSF Seafoods Joint Stock Company ("NTSF") and Vinh Quang Fisheries Corporation ("Vinh Quang") (collectively, "Plaintiffs") bring this action challenging the final results of the U.S. Department of Commerce ("Commerce") in the 2016–2017 administrative review of the antidumping duty order covering certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam"). See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam ("Final Results"), 84 Fed. Reg. 18,007 (Dep't Commerce Apr. 29, 2019) (final results of antidumping duty administrative review; 2016–2017); see also Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Mem. for the Final Results of the Fourteenth Antidumping Duty Admin. Review: 2016–2017 (Dep't Commerce Apr. 19, 2019), ECF No. 24-3, PD 547 ("Final IDM").¹ Before the court are Plaintiffs’ Motion for Judgment on the Agency Record Pursuant to Rules 56.1 and 56.2, ECF Nos. 35, 36, and Response to Plaintiffs’ Motion for Judgment on the Agency Record and Motion to Partially Dismiss, ECF Nos. 44, 45 ("Def. Resp."), filed by Defendant United States ("Defendant"). For the following reasons, the court sustains in part and remands in part the Final Results and denies the Motion to Partially Dismiss.

ISSUES PRESENTED

The court reviews the following issues:

1. Whether Commerce's selection of financial statements in its calculation of surrogate financial ratios is supported by substantial evidence;

2. Whether Commerce's calculation of surrogate values for NTSF's fingerlings is supported by substantial evidence; and

3. Whether Commerce's denial of byproduct offsets for fish oil and fish meal is supported by substantial evidence.

BACKGROUND

Commerce initiated the fourteenth administrative review of the antidumping duty order of frozen fish fillets from Vietnam for the period covering August 1, 2016 through July 31, 2017. Initiation of Antidumping and Countervailing Duty Admin. Reviews, 82 Fed. Reg. 48,051, 48,053 (Dep't Commerce Oct. 16, 2017) (initiation notice). Commerce selected Hung Vuong Group and NTSF as mandatory respondents for individual examination.² See Fourteenth Admin. Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Second Selection of Resp't for Individual Review at 4, PD 163 (Jan. 5, 2018); Fourteenth Admin. Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 2nd Replacement Selection of Resp't for Individual Review at 4, PD 209 (Feb. 7, 2018). Commerce selected Indonesia as the primary surrogate country. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Decision Mem. for the Prelim. Results, Prelim. Determination of No Shipments, and Partial Rescission of the 2016–2017 Antidumping Duty Admin. Review at 12, PD 478 (Dep't Commerce Sept. 13, 2018) ("Prelim. DM").

Commerce assigned weighted-average dumping margins of $3.87 per kilogram to Hung Vuong Group, $1.37 per kilogram to NTSF, and the all-others rate of $1.37 per kilogram to Vinh Quang in the Final Results published on April 29, 2019. Final Results, 84 Fed. Reg. at 18,008. Commerce applied the all-others rate to the separate rate-eligible respondents not selected for individual examination based on NTSF's calculated margin, including Vinh Quang. See id.; Final IDM at 49. In accordance with Commerce's policy, the Final Results included a statement of Commerce's "inten[t] to issue appropriate assessment instructions" to U.S. Customs and Border Protection ("Customs") fifteen days after the date of publication. Final Results, 84 Fed. Reg. at 18,008.

Plaintiffs commenced this action on May 14, 2019. See Summons, ECF No. 1. The next day, Commerce issued liquidation instructions to Customs, sixteen days after publication of the Final Results. See Antidumping Duty Admin. Review of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Official R. Addendum Docs. – NTSF Liquidation Instrs., CD 561 (Dec. 11, 2019) ("Liquidation Instructions"). Customs issued three Notices of Action (Form CF-29): on May 29, 2019 as to one entry; on June 5, 2019 as to nineteen entries; and on June 5, 2019 as to forty-nine entries. See Mem. in Supp. of Mot. for J. Upon the Agency R. of Pls. NTSF Seafood Joint Stock Co. & Vinh Quang Fisheries Corp. Attachs. 1–3, ECF Nos. 35-2, 36-2 ("Pls. Br."). All sixty-nine NTSF entries were liquidated on May 31, 2019, thirty-two days after publication of the Final Results. Id. Attach. 4. Commerce did not issue liquidation instructions for Vinh Quang's entries. Defendant consented to Vinh Quang's proposed order for a statutory injunction to enjoin liquidation of Vinh Quang's entries. Form 24 Am. Order for Statutory Inj. Upon Consent, ECF No. 12. The court entered a statutory injunction enjoining liquidation of Vinh Quang's entries pending resolution of this matter. Order for Statutory Inj. Upon Consent, ECF No. 13. The court issued a letter on August 26, 2020 requesting that Defendant consider restoring NTSF's subject entries to unliquidated status. Letter, ECF No. 62. Defendant consented. Def.’s Resp. to the Court's Letter, ECF No. 63. The court ordered that NTSF's subject entries be restored to unliquidated status. Confidential Order, ECF No. 65; Order, ECF No. 66.

In the final results of administrative reviews, Commerce publishes a statement of intent to issue liquidation instructions to Customs fifteen days after publication. Announcement Concerning Issuance of Liquidation Instrs. Reflecting Results of Admin. Reviews, International Trade Administration (Nov. 9, 2010), https://enforcement.trade.gov/download/liquidation-announcement-20101109.html (last visited Dec. 21, 2020); see Def. Resp. at 28. Parties are afforded thirty days after publication of final results to file a summons and thirty days thereafter to file a complaint to trigger the jurisdiction of this Court. 19 U.S.C. § 1516a(a)(2). Because liquidation of entries is final and renders the administrative determination unreviewable by the Court, Commerce's liquidation instruction policy has the potential to cut the time that parties have to file suit unreasonably short. The problem is not Commerce's issuance of liquidation instructions, it is the timing of the resulting liquidations.

If Commerce were to act so quickly as to foreclose interested parties from obtaining judicial review, Commerce's actions would be unreasonable, as would have occurred in this case absent the court's intervention requesting Defendant's consent to restoring unliquidated status. The Court determines whether Commerce acted unreasonably on a case-by-case basis. Commerce issued liquidation instructions for NTSF's entries sixteen days after publication of the Final Results. See Liquidation Instructions. NTSF's entries were liquidated thirty-two days after publication of the Final Results, before expiration of the statutory period for filing a complaint. See Pls. Br. Attach. 4. NTSF could potentially have been deprived of its right to obtain judicial review. Defendant consented, however, to restoring NTSF's entries to unliquidated status, and Plaintiffs were able to obtain judicial review of the antidumping determination. For these reasons, the court dismisses Defendant's Motion to Partially Dismiss as moot.

Because Commerce is best situated to consider the interests of all parties and avoid unreasonably quick liquidations, the court advises Commerce to consider adopting changes to the liquidation instruction policy to ensure that parties are not deprived of their right to judicial review.

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 shall hold unlawful any determination 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).

DISCUSSION

I. Selection of Financial Statements in Calculation of Surrogate Financial Ratios

The court first addresses the issue of whether Commerce's selection of financial statements in its calculation of surrogate financial ratios is supported...