NTSF Seafoods Joint Stock Co. v. United States
| Decision Date | 25 April 2022 |
| Docket Number | Slip Op. 22-38,20-00104,20-00105 |
| Parties | NTSF SEAFOODS JOINT STOCK CO., Plaintiff, v. UNITED STATES, Defendant, And CATFISH FARMERS OF AMERICA, et al., Defendant-Intervenor. CATFISH FARMERS OF AMERICA, et al., Plaintiffs, v. UNITED STATES, Defendant, And NTSF SEAFOODS JOINT STOCK CO., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Jonathan M. Freed and Kenneth N. Hammer, Trade Pacific PLLC of Washington, DC, for NTSF Seafoods Joint Stock Co. plaintiff in Case 20-104 and defendant-intervenor in Case 20-105. With them on the briefs was Robert G. Gosselink.
Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP of Washington, DC, for Catfish Farmers of America et al plaintiffs in Case 20-105 and defendant-intervenors in Case 20-104. With him on the briefs was James R. Cannon, Jr.
Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, U.S. Department of Justice of Washington, DC, for Defendant. With her on the brief were Brian Boynton, Acting Assistant Attorney General; Jeanne E. Davidson, Director; and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Kirrin Hough, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce of Washington, DC.
Before M. Miller Baker, Judge
In litigation, as in war, the enemy of my enemy is usually my friend. But in these two sprawling cases that arise out of the Department of Commerce's 15th administrative review of its antidumping order applicable to certain imported fish from Vietnam, the enemy of my enemy turns out to also be my enemy.
In one case, the plaintiff-a Vietnamese fish producer and exporter-contends that Commerce was too harsh. The plaintiffs in the other case-domestic catfish producers-contend that the Department was not harsh enough. The government, caught in the middle, finds itself defending a two-front war against both the Vietnamese producer and the domestic producers.
In Case 20-104, where the Vietnamese producer claims that Commerce was too harsh, the court denies the producer's motion for judgment on the agency record and instead enters judgment for the government and domestic producers. In Case 20-105, where domestic producers claim that the Department was not harsh enough, the court grants their motion for judgment on the agency record in part and denies it in part, and remands for further administrative proceedings.
A 2003 antidumping order for frozen fish imported from Vietnam provides the backdrop to this litigation. See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed.Reg. 47, 909 (Dep't Commerce Aug. 12, 2003). There, Commerce found that certain frozen fish from Vietnam were being sold in the U.S. at less than normal value and imposed duties to make up the difference. The order imposed specific rates for certain exporters and a "Vietnam-wide" rate for all others. See 68 Fed.Reg. at 47, 909-10. In the intervening years, that order has undergone multiple administrative re-views.[1]
Both cases here present issues arising out of the 15th such review, which Commerce initiated in 2018 at the request of a domestic trade association, Catfish Farmers of America, and several of its constituent members (collectively, Catfish Farmers). See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 Fed.Reg. 50, 077, 50, 080-81 (Dep't Commerce Oct. 4, 2018). The period of review was August 1, 2017, to July 31, 2018. See id. at 50, 080.
Because the fish in question are produced in Vietnam, a country with a non-market economy, the statute requires Commerce to calculate the production costs-in the statutory vernacular, the "factors of production"-"based on the best available information" as to such costs "in a market economy country or countries considered to be appropriate by [the Department]." 19 U.S.C. § 1677b(c)(1); see also Hung Vuong, 483 F.Supp.3d at 1339-41 ().
The "market economy country or countries" referred to in the statute are known as "surrogate countries." See, e.g., 19 C.F.R. § 351.408(c)(2) ("[The Department] normally will value all factors in a single surrogate country."). To select surrogate country candidates, the statute directs Commerce to use, "to the extent possible," market economy countries that "are-(A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of comparable merchandise." 19 U.S.C. § 1677b(c)(4).
After initiating its review here, Commerce identified six potential surrogate countries it found to be at a comparable level of economic development to Vietnam based on 2017 gross national income data from the World Bank: Bolivia, Egypt, Honduras, Nicaragua, Nigeria, and India. Appx16539. Commerce further found that India was a significant producer of comparable merchandise because "[i]nformation on the record" so established and because no interested party had submitted any information about the other five potential surrogate countries identified by the Department. Appx16540. Finally, the Department determined that Indian factors of production data submitted by NTSF Seafoods Joint Stock Co. were superior to competing Indonesian data submitted by Catfish Farmers. Appx16540-41. As a result, Commerce selected India as the primary surrogate country for valuing the factors of production. Appx16542.
Commerce selected NTSF as the sole mandatory respondent and issued questionnaires to the company seeking information about its factors of production. Appx16542. NTSF responded by providing Commerce a database that the company said included factors of production data for it and its affiliated fish farming operation, NTSF Vinh Long (Vinh Long). Appx89843- 89844.
Commerce preliminarily calculated a $0.00-per-kilogram dumping margin based on NTSF's responses, subject to various adjustments. Appx16542, Appx16548. As relevant here, one of the adjustments to NTSF's data involved deducting certain "movement expenses" from NTSF's reported gross unit price per 19 U.S.C. § 1677a(c)(2)(A).
After issuing its preliminary determination, the Department conducted verification of NTSF's questionnaire responses in Vietnam. During verification, NTSF informed the Department that it had not reported Vinh Long's farming factors in the database despite having previously said it had done so. Appx102468-102469, Appx1026. NTSF stated it discovered the error while preparing for verification and therefore sought to provide corrected data on the first day of verification, characterizing it as a "minor correction." Case 20-104, ECF 40-1, at 16-17. Commerce refused to accept the corrected data because it "represented significant new factual information."
Appx1026; Appx102454 n.1 ("[T]he verification team informed company officials that the correction would not be accepted as 'minor.' ").
After verification, Commerce received briefing from the parties. The Department then issued its final determination, which assigned NTSF an antidumping rate of 15¢ per kilogram instead of the zero rate from the preliminary determination. Appx1002. As relevant here, the Department (1) declined Catfish Farmers' request to reject all NTSF's data and apply total facts otherwise available with an adverse inference in determining NTSF's dumping margin, Appx1008, Appx1011-1015; (2) reaffirmed (over Catfish Farmers' objection) its decision to use India rather than Indonesia as the relevant surrogate country for determining normal value, Appx1015-1025; (3) applied partial facts otherwise available with an adverse inference to calculate the portion of NTSF's normal value based on farming factors of production relating to Vinh Long, Appx1025-1027; and (4) reaffirmed its calculation of international movement expenses.[2] Appx1024-1025.
NTSF and Catfish Farmers brought these two cases challenging Commerce's final determination. See Case 20-104, ECF 7 (NTSF complaint); Case 20-105, ECF 7 (Catfish Farmers complaint). Each then intervened in the other's case to defend the final determination from the other's challenge.
The court consolidated these cases for briefing and argument. Case 20-104, ECF 25; Case 20-105, ECF 26. The plaintiffs then filed their pending Rule 56.2 motions for judgment on the agency record. Case 20-104, ECF 38 (confidential) and 40 (public); Case 20-105, ECF 31 (confidential) and 32 (public); see also USCIT R. 56.2. The government (Case 20-104, ECF 48 (public) and 49 (confidential); Case 20-105, ECF 42 (public) and 43 (confidential)) and the intervenors (Case 20-104, ECF 50 (public) and 51 (confidential); Case 20-105, ECF 44 (confidential) and 45 (public)) oppose. The court then heard oral argument.
The court has subject-matter jurisdiction under 28 U.S.C. § 1581(c).
In actions such as this brought under 19 U.S.C. § 1516a(a)(2)(A)(i)(II), "[t]he court shall 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).
As to evidentiary issues, the question is whether the administrative record, taken as a whole,...
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