Soc Trang Seafood Joint Stock Co. v. United States, 062118 USCIT, 16-00205

Docket Nº:16-00205, Slip Op. 18-75
Opinion Judge:Claire R. Kelly, Judge.
Party Name:SOC TRANG SEAFOOD JOINT STOCK COMPANY ET AL., Plaintiffs and Consolidated Plaintiff, v. UNITED STATES, Defendant, and CA MAU SEAFOOD JOINT STOCK COMPANY, Plaintiff-Intervenor, and AD HOC SHRIMP TRADE ACTION COMMITTEE, Defendant-Intervenor and Consolidated Defendant-Intervenor.
Attorney:Matthew Robert Nicely, Daniel Martin Witkowski, and Julia K. Eppard, Hughes Hubbard & Reed LLP, of Washington, DC, argued for plaintiffs, Soc Trang Seafood Joint Stock Company a/k/a Stapimex; Trong Nhan Seafood Company Limited; Sao Ta Foods Joint Stock Company a/k/a Fimex VN a/k/a Saota Seafood F...
Judge Panel:Before: Claire R. Kelly, Judge.
Case Date:June 21, 2018
Court:Court of International Trade
 
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SOC TRANG SEAFOOD JOINT STOCK COMPANY ET AL., Plaintiffs and Consolidated Plaintiff,

and

CA MAU SEAFOOD JOINT STOCK COMPANY, Plaintiff-Intervenor,

v.

UNITED STATES, Defendant,

and

AD HOC SHRIMP TRADE ACTION COMMITTEE, Defendant-Intervenor and Consolidated Defendant-Intervenor.

No. 16-00205

Slip Op. 18-75

Court of Appeals of International Trade

June 21, 2018

Sustaining in part and remanding in part the U.S. Department of Commerce's final determination in the tenth administrative review of certain frozen warmwater shrimp from the Socialist Republic of Vietnam.

Matthew Robert Nicely, Daniel Martin Witkowski, and Julia K. Eppard, Hughes Hubbard & Reed LLP, of Washington, DC, argued for plaintiffs, Soc Trang Seafood Joint Stock Company a/k/a Stapimex; Trong Nhan Seafood Company Limited; Sao Ta Foods Joint Stock Company a/k/a Fimex VN a/k/a Saota Seafood Factory; Nha Trang Seafoods Group: Nha Trang Seaproduct Company a/k/a NT Seafoods Corporation a/k/a Nha Trang Seafoods - F.89 Joint Stock Company a/k/a NTSF Seafoods Joint Stock Company; Viet Foods Co., Ltd.; UTXI Aquatic Products Processing Corporation a/k/a Hoang Phuong Seafood Factory a/k/a Hoang Phong Seafood Factory; Camau Frozen Seafood Processing Import Export Corporation a/k/a Camau Seafood Factory No. 4; Ngoc Tri Seafood Joint Stock Company; Investment Commerce Fisheries Corporation; Quang Minh Seafood Co., Ltd.; Phuong Nam Foodstuff Corp.; Minh Cuong Seafood Import Export Frozen Processing Joint Stock Company; Minh Hai Joint-Stock Seafoods Processing Company; Cadovimex Seafood Import-Export and Processing Joint Stock Company; Can Tho Import Export Fishery Limited Company; Danang Seaproducts Import Export Corporation a/k/a Danang Seaproducts Import-Export Corporation a/k/a Seaprodex Danang a/k/a Tho Quang Co. a/k/a Tho Quang Seafood Processing and Export Company a/k/a Frozen Seafoods Factory No. 32; Vietnam Clean Seafood Corporation; Viet I-Mei Frozen Foods Co., Ltd.; Kim Anh Company Limited a/k/a Kim Anh Co., Ltd.; Viet Hai Seafood Co., Ltd. a/k/a Vietnam Fish One Co., Ltd.; Thuan Phuoc Seafoods and Trading Corporation; Bac Lieu Fisheries Joint Stock Company; Nha Trang Fisheries Joint Stock Company; Thong Thuan Company Limited a/k/a T&T Co., Ltd.; Cuulong Seaproducts Company; Camau Seafood Processing and Service Joint Stock Company; Quoc Viet Seaproducts Processing Trading and Import-Export Co., Ltd.; C.P. Vietnam Corporation; and Minh Hai Export Frozen Seafood Processing Joint-Stock Company, and for plaintiff-intervenor Ca Mau Seafood Joint Stock Company a/k/a Seaprimexco Vietnam.

Jonathan Michael Freed, Trade Pacific, PLLC, of Washington, DC, argued for consolidated plaintiff, Mazzetta Company LLC. With him on the brief were Robert George Gosselink and Jarrod Mark Goldfeder.

Kara Marie Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Patricia M. McCarthy, Assistant Director, Jeanne E. Davidson, Director, and Chad A. Readler, Principal Deputy Assistant Attorney General. Of Counsel on the brief was James Henry Ahrens II, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington, DC, argued for defendant-intervenor and consolidated defendant-intervenor, Ad Hoc Shrimp Trade Action Committee. With him on the brief was Meixuan (Michelle) Li.

Before: Claire R. Kelly, Judge.

OPINION AND ORDER

Claire R. Kelly, Judge.

This consolidated action is before the court on two motions for judgment on the agency record challenging various aspects of the U.S. Department of Commerce's ("Department" or "Commerce") final determination in the tenth administrative review of the antidumping duty ("ADD") order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam ("Vietnam"). See Pls. & Pl.-Intervenor's Rule 56.2 Mot. J. Agency R., June 5, 2017, ECF No. 38; Consol.-Pl.'s Rule 56.2 Mot. J. Agency R., June 5, 2017, ECF No. 39; see also Certain Frozen Warmwater Shrimp From [Vietnam], 81 Fed. Reg. 62, 717 (Dep't Commerce Sept. 12, 2016) (final results of [ADD] administrative review, 2014-2015) ("Final Results") and accompanying Certain Frozen Warmwater Shrimp from [Vietnam]: Issues and Decision Mem. for the Final Results, A-552-802, (Sept. 6, 2016), ECF No. 19-2 ("Final Decision Memo"); Certain Frozen Warmwater Shrimp From [Vietnam], 70 Fed. Reg. 5, 152 (Dep't Commerce Feb. 1, 2005) (notice of amended final determination of sales at less than fair value and [ADD] order) ("ADD Order").

Plaintiffs Soc Trang Seafood Joint Stock Company a/k/a Stapimex et al., foreign producers and exporters of the subject merchandise, commenced this action pursuant to section 516A(a)(2)(B)(iii) and 516A(d) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) and 1516a(d) (2012).[1] See Summons, Oct. 7, 2016, ECF No. 1; Compl., Oct. 28, 2016, ECF No. 8.2 Plaintiff-Intervenor, Ca Mau Seafood Joint Stock Company a/k/a Seaprimexco Vietnam, intervened as of right, see Order, Mar. 1, 2017, ECF No. 27, and, together with the above named Plaintiffs, the court refers to these parties as "Respondents."

The Respondents challenge four aspects of Commerce's final determination. See Pls. & Pl.-Intervenor's Mem. Supp. Rule 56.2 Mot. J. Agency R., June 5, 2017, ECF No. 38-2 ("Respondents' Br."). First, the Respondents challenge as not in accordance with law and unsupported by substantial evidence Commerce's differential pricing analysis. Id. at 7-35. Second, the Respondents challenge Commerce's selection of surrogate value data sources to value head and shell byproducts, frozen shrimp, and ice. Id. at 35- 43. Third, the Respondents challenge Commerce's decision to deny a byproduct offset for revenue from excess or scrap packaging. Id. at 43-45. Fourth, the Respondents challenge as not in accordance with law and unsupported by substantial evidence Commerce's calculation of the all-others separate rate. Id. at 45-46.

Mazzetta Company, LLC ("Mazzetta"), an importer of subject merchandise, challenges two aspects of Commerce's final determination. See Mem. Consol.-Pl. [Mazzetta] in Supp. Mot. J. Agency R. Pursuant Rule 56.2, June 5, 2017, ECF No. 39-1 ("Mazzetta Br."). First, Mazzetta argues that Commerce improperly omitted from the record documentation and memoranda memorializing the events that it claims led to the rescission of Commerce's review of Minh Phu Seafood Corporation, Minh Qui Seafood Co., Ltd., Minh Phat Seafood Co., Ltd., and Minh Phu Hau Giang Seafood Joint Stock Company (collectively, "Minh Phu Group" or "MPG"). See id. at 22-25; see also [ADD] Administrative Review of Certain Frozen Warmwater Shrimp from [Vietnam]: Selection of Respondents for Individual Examination at 7, PD 71, bar code 3273103-01 (Apr. 29, 2015) ("Resp't Selection Memo").3 Second, Mazzetta challenges as not in accordance with law and unsupported by substantial evidence Commerce's calculation of the all-others separate rate. See Mazzetta Br. at 25-43.

For the reasons that follow, the court sustains Commerce's application of the differential pricing analysis and calculation of the all-others rate, and Commerce's surrogate value data selections for head and shell byproduct and ice. The court also determines that Commerce fulfilled its statutory duty to maintain a complete and accurate administrative record. However, the court remands Commerce's surrogate value data selection for frozen shrimp, and Commerce's decision to deny an offset for packaging scrap revenue for further explanation or reconsideration consistent with this opinion.

BACKGROUND

Commerce initiated this tenth administrative review covering subject imports entered during the period of review ("POR"), February 1, 2014 through January 31, 2015. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 Fed. Reg. 18, 202, 18, 204 (Dep't Commerce Apr. 3, 2015). Commerce subsequently selected MPG and Soc Trang Seafood Joint Stock Company ("Stapimex") as mandatory respondents in this review. See Resp't Selection Memo at 9. Because Vietnam is a non-market-economy ("NME"), Commerce "begins with a rebuttable presumption that all companies within Vietnam are subject to government control." Final Decision Memo at 76. Based on this presumption, Commerce assigns all exporters of the subject merchandise in a NME country a single antidumping duty rate. Id. However, if an exporter can demonstrate the absence of government control, Commerce will calculate for it a separate rate. Id. Companies, other than the mandatory respondents, who are able to demonstrate the absence of government control are assigned the separate all-others rate. Id...

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