Thuan An Production Trading & Serv. Co., Ltd. v. United States

• Decision Date: 05 November 2018
• Docket Number: Slip Op. 18-152,Consol. Court No. 17-00056
• Citation: 348 F.Supp.3d 1340
• Parties: THUAN AN PRODUCTION TRADING AND SERVICE CO., LTD. and Golden Quality Seafood Corporation, Plaintiff and Consolidated Plaintiff, v. UNITED STATES, Defendant. and Catfish Farmers of America et al., Defendant-Intervenors and Consolidated Defendant Intervenors.
• Court: U.S. Court of International Trade

348 F.Supp.3d 1340

THUAN AN PRODUCTION TRADING AND SERVICE CO., LTD. and Golden Quality Seafood Corporation, Plaintiff and Consolidated Plaintiff,

v. UNITED STATES, Defendant.andCatfish Farmers of America et al., Defendant-Intervenors and Consolidated Defendant Intervenors.

Slip Op. 18-152

Consol. Court No. 17-00056

United States Court of International Trade.

November 5, 2018

Matthew Jon McConkey, Mayer Brown LLP, of Washington, DC, for plaintiff Thuan An Production Trading and Service Co., Ltd.

Andrew Brehm Schroth, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Hong Kong, S.A.R., and Jordan Charles Kahn, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington, DC, for consolidated plaintiff Golden Quality Seafood Corporation.

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

Jonathan Mario Zielinski, Cassidy Levy Kent (USA) LLP, of Washington, DC, for defendant-intervenors and consolidated defendant-intervenors Catfish Farmers of America; America's Catch; Alabama Catfish Inc.; Consolidated Catfish Companies LLC; Delta Pride Catfish, Inc.; Guidry's Catfish, Inc.; Heartland Catfish Company; Magnolia Processing, Inc.; Simmons Farm Raised Catfish, Inc.

OPINION

Kelly, Judge:

This action is before the court on a motion for judgment on the agency record. See Thuan An Production Trading and Service Co., Ltd.'s R. 56.2 Mot. J. Agency R., Nov. 16, 2017, ECF No. 42; Consol. Pl. Golden Quality Seafood Corp.'s Mot. J. Agency R., Nov. 16, 2017, ECF No. 41. Plaintiff and Consolidated Plaintiff challenge various aspects of the U.S. Department of Commerce's ("Department" or "Commerce") final determination in the twelfth administrative review of the antidumping duty ("ADD") order covering certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam"). SeeCertain Frozen Fish Fillets from [Vietnam], 82 Fed. Reg. 15,181 (Dep't Commerce Mar. 27, 2017) (final results and partial rescission of [ADD] administrative review; 2014–2015) ("Final Results"), and accompanying Certain Frozen Fish Fillets from [Vietnam]: Issues and Decision Memorandum for the Final Results of the Twelfth [ADD] Administrative Review; 2014–2015, A-552-801, (Mar. 20, 2017), ECF No. 25-2 ("Final Decision Memo"); see also Certain Frozen Fish Fillets From [Vietnam], 68 Fed. Reg. 47,909 (Dep't Commerce Aug. 12, 2003) (notice of [ADD] order) ("ADD Order").

Plaintiff, Thuan An Production Trading and Service Co., Ltd. ("Tafishco"), and Consolidated Plaintiff, Golden Quality Seafood Corporation ("Golden Quality"), commenced separate actions pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), which were later consolidated.¹ See Summons, Mar. 31, 2017, ECF No. 1; Compl., Apr. 5, 2017, ECF 8; Order, July 26, 2017, ECF No. 28 (consolidating Court No. 17-00056, Court No. 17-00087, and Court No. 17-00088 under Court No. 17-00056).² Tafishco and Golden Quality challenge several aspects of Commerce's final determination as not supported by substantial evidence or otherwise not in accordance with law. See Mem. Law Supp. Pl.[']s Rule 56.2 Mot. J. Agency R. at 1, 3–12, Nov. 16, 2017, ECF No. 42 ("Tafishco Br."); Mem. Law Supp. Consol. Pl. Golden Quality Seafood Corp.'s Mot. J. Agency R. at 1, 8–20, Nov. 16, 2017, ECF No. 41 ("Golden Quality Br."); see also 19 U.S.C. § 1516a(b)(1)(B)(i). First, Tafishco contends that Commerce lacks statutory authority to issue the Vietnam-wide non market economy ("NME") rate in the twelfth administrative review. See Tafishco Br. at 3–7. Second, Tafishco argues that Commerce's assignment of a $2.39 per kilogram ("kg") rate on the Vietnam-wide entity, and thus Tafishco, is not supported by substantial evidence. See Tafishco Br. at 7–12. Third, Golden Quality argues that Commerce erred by requiring that it report its factors of production ("FOP") on a CONNUM-specific basis. See Golden Quality Br. at 7–20. For the reasons set forth below, the court remands Commerce's asserted legal grounds to issue the Vietnam-wide NME rate in this review, remands Commerce's assignment of a $2.39 per kg rate to Tafishco, and sustains Commerce's requirement that Golden Quality report its FOPs on a CONNUM-specific basis.

BACKGROUND

On June 16, 2003, Commerce found that certain frozen fish fillets from Vietnam were being, or were likely to be, sold in the United States at less than fair value ("LTFV").See Certain Frozen Fish Fillets from [Vietnam], 68 Fed. Reg. 37,116 (Dep't Commerce June 23, 2003) (notice of final [ADD] determination of sales at [LTFV] and affirmative critical circumstances) and accompanying Issues and Decision Memorandum for the Antidumping Duty Investigation of Certain Frozen Fish Fillets from [Vietnam], A-552-801, (June 16, 2003), available at http://ia.ita.doc.gov/frn/summary/vietnam/03-15794-1.pdf (last visited Oct. 31, 2018). Each year during the anniversary month of the publication of an ADD duty order, interested parties may request that Commerce conduct an administrative review of that order. See 19 C.F.R. § 351.213 ; see also 19 U.S.C. § 1677 (for definition of interested parties). On October 6, 2015, pursuant to a request from the petitioners, The Catfish Farmers of America and individual U.S. catfish processors, Commerce initiated the twelfth administrative review of the ADD order covering certain frozen fish fillets from Vietnam, for which the period of review was August, 1, 2014 through July, 31, 2015. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 Fed. Reg. 60,356, 60,358 (Dep't Commerce Oct. 6, 2015).

On March 3, 2016, pursuant to its authority under 19 U.S.C. § 1677f-1(c)(2),³ Commerce selected Tafishco and Golden Quality as mandatory respondents for the review. See Certain Frozen Fish Fillets from [Vietnam]: Selection of Respondents for Individual Review at 1–2, 7, PD 88, bar code 3446449-01 (Mar. 3, 2016).⁴ On March 22, 2016, Commerce issued ADD questionnaires to both parties.⁵ See Initial Questionnaire to Tafishco, PD 90, bar code 3451250-01 (Mar. 22, 2016); Initial Questionnaire to Golden Quality, PD 89, bar code 3451246-01 (Mar. 22, 2016). In its questionnaires, Commerce requested that the mandatory respondents report their FOPs⁶ on a control-number ("CONNUM") specific basis.⁷ See, e.g., Initial Questionnaire to Golden Quality at D-2, PD 89, bar code 3451246-01 (Mar. 22, 2016).

On April 8, 2016, Tafishco submitted a letter to Commerce stating its intention not to participate in the review. Tafishco Letter Declining Participation, PD 100, bar code 3457788-01 (Apr. 8, 2016). On April 19, 2016, Golden Quality submitted a similar letter to Commerce stating its intention not to participate in the review. Golden Quality Letter Declining Participation, PD 108, bar code 3460924-01 (Apr. 19, 2016).

On September 19, 2016, Commerce published its preliminary results and accompanying Preliminary Decision Memorandum. See Certain Frozen Fish Fillets from [Vietnam], 81 Fed. Reg. 64,131 (Dep't Commerce Sept. 19, 2016) (preliminary results and partial rescission of the [ADD] administrative review; 2014–2015) ("Preliminary Results") and accompanying Certain Frozen Fish Fillets from [Vietnam]: Decision Memorandum for the Preliminary Results of the 2014-2015 [ADD] Administrative Review, PD 222, bar code 3504073-01 (Sept. 6, 2016) ("Preliminary Decision Memo"). Commerce preliminary assigned the Vietnam-wide rate⁸ of $2.39 per kg to entries of subject merchandise from Tafishco and Golden Quality, noting that both mandatory respondents declined to respond to the ADD questionnaire, and therefore failed to demonstrate eligibility for a separate rate.⁹ See Preliminary Decision Memo at 10. On March 27, 2017, Commerce published its final results, in which it continued to assign the Vietnam-wide rate to both respondents, and determined that both respondents failed to demonstrate eligibility for a separate rate. See Final Decision Memo at 11.

JURISDICTION AND STANDARD OF REVIEW

The court exercises jurisdiction pursuant to section 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012), which grant the Court authority to review actions contesting the final determination in an administrative review of an antidumping duty order. "The 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).

DISCUSSION

I. Commerce's Authority to Assign a Vietnam-wide Rate.

Tafishco challenges Commerce's statutory authority to impose a Vietnam-wide rate in this review. See Tafishco Br. at 3–7. Defendant argues that Tafishco did not raise this challenge in its complaint, and thus the court lacks jurisdiction to hear the claim. See Def.'s Resp. Pls.' Mots. J. Agency R. at 9–10, Apr. 20, 2018, ECF No. 55 ("Def.'s Br."). Defendant argues that, even if the court hears the claim, Commerce has authority to impose a country-wide rate that is neither an individual rate nor an all-others rate. See Def.'s Supplemental Br. Resp. Ct.'s July 25, 2018 Order at 2, Aug. 30, 2018, ECF No. 67 ("Def.'s Supplemental Br.") (citing 19 C.F.R. § 351.107(d) and Sigma Corp. v. United States, 117 F.3d 1401, 1405–06 (Fed. Cir. 1997) ). For the reasons that follow, Commerce's asserted legal grounds for imposing a country-wide rate is remanded.

As a preliminary matter, the court may hear Tafishco's challenge to Commerce's statutory authority.¹⁰ In an action brought under 28 U.S.C § 1581(c), the complaint serves as a notice document. As...