Tri Union Frozen Prods., Inc. v. United States

• Decision Date: 06 April 2016
• Docket Number: Consol. Court No. 14–00249,Slip Op. 16–33
• Citation: 163 F.Supp.3d 1255
• Parties: Tri Union Frozen Products, Inc. et al., Plaintiffs and Consolidated Plaintiffs, v. United States, Defendant, and Ad Hoc Shrimp Trade Action Committee, Defendant-Intervenor.
• Court: U.S. Court of International Trade

163 F.Supp.3d 1255

Tri Union Frozen Products, Inc. et al., Plaintiffs and Consolidated Plaintiffs,

v. United States, Defendant,andAd Hoc Shrimp Trade Action Committee, Defendant-Intervenor.

Slip Op. 16–33

Consol. Court No. 14–00249

United States Court of International Trade.

Signed April 6, 2016

Jonathan Michael Freed, Trade Pacific, PLLC, of Washington DC argued for Plaintiffs Tri Union Frozen Products, Inc., Mazzetta Company LLC, Ore-Cal Corporation, and Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Export Co., Ltd. With him on the brief was Robert George Gosselink.

William Henry Barringer and Matthew Paul McCullough, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington DC argued for Consolidated Plaintiffs Vietnam Association of Seafood Exporters and Producers and certain of its individual member companies. With them on the brief were, Claudia Denise Hartleben, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington DC, Alexandra Bradley Hess and Matthew Robert Nicely, Hughes Hubbard & Reed LLP, of Washington DC.

Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington DC argued for Consolidated Plaintiff and Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

Joshua Ethan Kurland, Trial Attorney, and Kara Marie Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, argued for Defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel on the brief was Mykhaylo Alexander Gryzlov, Senior Attorney, Office of the Chief Counsel for Trade and Compliance, U.S. Department of Justice, of Washington DC.

OPINION AND ORDER

Kelly, Judge:

This consolidated action comes before the court on USCIT Rule 56.2 motions for judgment on the agency record, challenging the U.S. Department of Commerce's (“Department” or “Commerce”) final determination in the eighth administrative review of the antidumping duty order covering certain frozen warmwater shrimp¹ from the Socialist Republic of Vietnam (“Vietnam”) for the period of February 1, 2012 through January 31, 2013. See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 79 Fed.Reg. 57,047 (Dep't Commerce Sept. 24, 2014) (final results of antidumping duty administrative review, 2012–2013) (“Final Results ”), as amended , 79 Fed.Reg. 65,377 (Dep't Commerce Nov. 4, 2014) (amended final results of antidumping duty administrative review, 2012–2013) (“Amended Final Results ”), and accompanying Issues and Decision Memorandum for the Final Results of Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, A–552–802, (Sept. 19, 2014), available at http://enforcement.trade.gov/frn/summary/vietnam/2014–22732–1.pdf (last visited Mar. 28, 2016) (“Final I & D Memo”); see also Certain Frozen Warmwater Shrimp From the Socialist Republic of 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 antidumping duty order) (“ADD Order”).

Plaintiffs Tri Union Frozen Products, Inc., d/b/a Chicken of the Sea Frozen Foods, a/k/a Empress International Ltd.; Mazzetta Company LLC; and Ore–Cal Corporation (collectively “Tri Union”), importers of subject merchandise, commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2012).² The court consolidated Tri Union's action with actions filed by Consolidated Plaintiffs Vietnamese Association of Seafood Exporters and Producers and certain of its individual member companies, Vietnamese producers and exporters of subject merchandise (collectively “VASEP”); Quoc Viet Seaproducts Processing Trading and Import–Export Co., Ltd. (“Quoc Viet”), a Vietnamese producer and exporter of subject merchandise; and Ad Hoc Shrimp Trade Action Committee (“Ad Hoc Shrimp”), an association of domestic producers of warmwater shrimp. See Order, Dec. 15, 2014, ECF No. 29. In addition to the Rule 56.2 motions for judgment on the agency record filed by the above named parties, Ad Hoc Shrimp filed a response as a defendant-intervenor in opposition to the motions filed by Quoc Viet and VASEP. For the reasons set forth below, Defendant's request for voluntary remand for Commerce is granted and Commerce's Final Results and Amended Final Results are sustained in all other respects.

BACKGROUND

Commerce issued the antidumping duty order covering certain frozen warmwater shrimp from Vietnam on February 1, 2005. See generally ADD Order, 70 Fed.Reg. 5,152. On March 29, 2013, pursuant to requests from several companies, including Ad Hoc Shrimp and Quoc Viet, Commerce initiated the eighth administrative review of the ADD Order for the period of February 1, 2012 through January 31, 2013. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed.Reg. 19,197, 19,198 –204 (Dep't Commerce Mar. 29, 2013); see also Ad Hoc Shrimp Request for Administrative Reviews at 1–2, PD 2 at bar code 3120960–01 (Feb. 26, 2013); Quoc Viet Request for Administrative Review and Request for Voluntary Treatment at 1, PD 1 at bar code 3117246–01 (Feb. 1, 2013) (“Quoc Viet Request”).

Due to the large number of companies, Commerce found, pursuant to 19 U.S.C. § 1677f–1(c)(2), that it was not practicable to examine all foreign producers and exporters of subject merchandise and instead selected two companies that, according to U.S. Customs and Border Protection import data, accounted for the largest U.S. import entry volume of subject merchandise during the period of review to serve as mandatory respondents—(1) Minh Phu Group (“MPG”); and (2) Soc Trang Seafood Joint Stock Company (“Stapimex”). See Selection of Respondents for Individual Examination Memo at 1–2, 6–8, PD 40 at bar code 3137221–01 (May 24, 2013) (“Respondent Selection Mem.”); see also 19 U.S.C. § 1677f–1(c)(2)(B) ; Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam at 1–3, A–552–802, (Mar. 18, 2014), available at http://enforcement.trade.gov/frn/summary/vietnam/2014–06397–1.pdf (last visited Mar. 28, 2016) (“Prelim. I & D Memo”). Quoc Viet, as part of its request for Commerce to initiate the administrative review, requested to be examined as a voluntary respondent if Commerce decided to limit the review to individually examine particular exporters pursuant to 19 U.S.C. § 1677f–1(c). See Quoc Viet Request at 2. Based on the circumstances of the review, Commerce denied Quoc Viet's request finding that it would be unduly burdensome and inhibit the timely completion of the review to individually examine any additional respondents. See Selection of Voluntary Respondent Memo at 1–4, PD 122 at bar code 3146779–01 (July 24, 2013) (“Voluntary Respondent Mem.”).

As Commerce does when dealing with a nonmarket economy (“NME”),³ Commerce informed interested parties of potential surrogate countries from which it would consider data to value the factors of production (“FOP”) used to produce the subject imports. See Surrogate Country List at 3, PD 105 at barcode 3143158–01 (July 2, 2013). Interested parties submitted comments regarding primary surrogate country selection on August 30, 2013. See generally Comments on Surrogate Country Selection, PD 133–37 at bar codes 3152484–01–05 (Aug. 30, 2013); ASPA's Surrogate Country Selection Comments, PD 138 at bar code 3152512–01 (Aug. 30, 2013); Surrogate Country Comments, PD 140 at bar code 3152598–01 (Aug. 30, 2013). On October 28, 2013, interested parties also submitted comments on surrogate values for Commerce to use to value mandatory respondents' FOPs. See generally Surrogate Value Comments, PD 157–161 at bar codes 3160401–01–05 (Oct. 28, 2013); ASPA's Comments re Surrogate Values, PD 155 at bar code 3160197–01 (Oct. 28, 2013).

Commerce published its preliminary results on March 24, 2014. See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 79 Fed.Reg. 15,941, 15,941 (Dep't Commerce Mar. 24, 2014) (preliminary results of antidumping duty administrative review; 2012–2013) (“Prelim. Results ”). After considering comments from interested parties on surrogate country and values, Commerce selected Bangladesh as the primary surrogate country for purposes of valuing MPG's and Stapimex's FOPs for the preliminary results. See Prelim. I & D Memo at 11–15; see also Prelim. Results, 79 Fed.Reg. at 15,941. Commerce likewise chose to use Bangladeshi data to value the primary FOP, raw shrimp. See Prelim. I & D Memo at 14–15.

Additionally, Commerce, pursuant to its practice in administrative reviews, applied its recently implemented differential pricing analysis to determine whether “compar[ing] ... the weighted average of the normal values to the export prices ... of individual transactions for comparable merchandise” (“A–T”), see 19 C.F.R. § 351.414(b)(3) (2013),⁴ was appropriate to calculate dumping margins for both MPG and Stapimex in the preliminary results. See Prelim. I & D Memo at 18–19. According to the results of its differential pricing analysis, Commerce found that MPG's and Stapimex's U.S. sales showed a pattern of significant export price differences among purchasers, regions, or time periods that could not be accounted for by “a comparison of the weighted average of the normal values with the weighted average of the export prices” (“A–A”). See 19 C.F.R. § 351.414(b)(1) ; Prelim. I & D Memo at 18–19. Thus, Commerce preliminarily determined that application of A–T was appropriate to calculate dumping margins for both MPG and Stapimex in the preliminary results. See Prelim. I & D Memo at 18–19. Using Bangladesh as the primary surrogate country and applying A–T, Commerce preliminarily determined that the mandatory respondents were selling the subject...