Vinh Hoan Corp. v. United States

• Decision Date: 26 May 2016
• Docket Number: Slip Op. 16-53,Consol. Court No. 13-00156
• Citation: 179 F.Supp.3d 1208
• Parties: Vinh Hoan Corporation et al., Plaintiff and Consolidated Plaintiffs, and Binh An Seafood Joint Stock Company, Plaintiff-Intervenor and Consolidated Plaintiff-Intervenor, v. United States, Defendant, and Catfish Farmers of America et al., Defendant-Intervenors and Consolidated Defendant-Intervenors.
• Court: U.S. Court of International Trade

179 F.Supp.3d 1208

Vinh Hoan Corporation et al., Plaintiff and Consolidated Plaintiffs,andBinh An Seafood Joint Stock Company, Plaintiff-Intervenor and Consolidated Plaintiff-Intervenor,

v. United States, Defendant,andCatfish Farmers of America et al., Defendant-Intervenors and Consolidated Defendant-Intervenors.

Slip Op. 16-53

Consol. Court No. 13-00156

United States Court of International Trade.

May 26, 2016

Matthew Jon McConkey , Mayer Brown LLP, of Washington, DC, for plaintiff and defendant-intervenor Vinh Hoan Corporation.

Andrew Brehm Schroth , Ned Herman Marshak , and Dharmendra Narain Choudhary , Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY and Washington, DC, for consolidated plaintiffs and defendant-intervenors Vietnam Association of Seafood Exporters and Producers and consolidated plaintiff Anvifish Joint Stock Company.

Jonathan Michael Freed and Robert George Gosselink , Trade Pacific, PLLC, of Washington, DC, for consolidated plaintiff Vinh Quang Fisheries Corporation.

Nazakhtar Nikakhtar , Jonathan Mario Zielinski , and Nathaniel James Halvorson , Cassidy Levy Kent (USA) LLP, of Washington, DC, for consolidated plaintiffs, defendant-intervenors, and consolidated defendant-intervenors Catfish Farmers of America et al.

John Joseph Kenkel , deKieffer & Horgan PLLC, of Washington, DC, for consolidated plaintiff, plaintiff-intervenor, defendant-intervenor and consolidated plaintiff-intervenor Binh An Seafood Joint Stock Company.

Ryan Michael Majerus , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Franklin E. White, Jr. , Assistant Director. Of Counsel on the brief was Nanda Srikantaiah , Attorney, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Kelly

, Judge:

Before the court for review is the U.S. Department of Commerce's (“Department” or “Commerce”) Final Results of Redetermination filed pursuant to the court's decision in Vinh Hoan Corp. v. United States, 39 CIT ––––, 49 F.Supp.3d 1285 (2015)

(“Vinh Hoan”). See Final Results of Redetermination Pursuant to Vinh Hoan Corporation et al. v. United States , 49 F.Supp.3d 1285 (2015), Aug. 3, 2015, ECF No. 132 (“Remand Results”). In Vinh Hoan, the court remanded Commerce's final determination in the eighth administrative review of the antidumping duty order covering certain frozen fish fillets from the Socialist Republic of Vietnam (“Vietnam”) for Commerce to reconsider and provide further explanation regarding its: (1) surrogate country selection; (2) determination to decline to adjust Vinh Hoan's margin calculation to exclude glazing weight;¹ and (3) treatment of all of Plaintiff Vinh Hoan Corporation's (“Vinh Hoan”) sales to one customer as consignment sales where record evidence indicated they were not consignment sales. See Vinh Hoan, 39 CIT at –––– – ––––, 49 F.Supp.3d at 1291–1326 ; see also Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 78 Fed. Reg. 17,350 (Dep't Commerce Mar. 21, 2013) (final results of antidumping duty administrative review and new shipper reviews; 2010–2011) (“Final Results”), as amended, 78 Fed. Reg. 29,323 (Dep't Commerce May 20, 2013) (“Amended Final Results”); Issues and Decision Memorandum for the Final Results of the Eighth Administrative Review and Aligned New Shipper Reviews for Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, A-552-801, (Mar. 13, 2013), available at http://ia.ita.doc.gov/frn/summary/vietnam/2013-06550-1.pdf (last visited May 20, 2016) (“Final Decision Memo”). The court also granted Defendant's request for a voluntary remand for Commerce to reconsider its calculation for offsetting respondent's fish oil byproduct. See Vinh Hoan, 39 CIT at –––– – ––––, 49 F.Supp.3d at 1321–22

. The court reserved judgment on the surrogate value (“SV”) issues relating to respondents' factors of production (“FOP”), see id. at ––––, 49 F.Supp.3d at 1291, and those issues are now before the court for review as well.

BACKGROUND

On September 26, 2011, Commerce initiated this eighth antidumping duty (“AD”) administrative review covering subject imports entered during the period of review (“POR”), August 1, 2010 through July 31, 2011. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 76 Fed. Reg. 61,076 (Dep't Commerce Oct. 3, 2011)

. On August 30, 2012, Commerce issued its preliminary determination. See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 77 Fed. Reg. 56,180 (Dep't Commerce Sept. 12, 2012) (preliminary results of the eighth antidumping duty administrative review and ninth new shipper reviews, partial rescission of review, and intent to revoke order in part) (“Prelim. Results”). Because Commerce treats Vietnam as a nonmarket economy (“NME”), id. at 56,181, it selected a surrogate market economy country to value the FOPs used in producing the subject merchandise to determine normal value. Id. at 56,183. Commerce preliminarily chose Bangladesh as the primary surrogate country. Id. at 56,184. In its final results, Commerce changed its primary surrogate country selection to Indonesia. See Final Results, 78 Fed. Reg. at 17,351 ; see also Final Decision Memo at 27.

Vinh Hoan commenced this action, which was subsequently consolidated with actions filed by Anvifish Joint Stock Company (“Anvifish”) and Vinh Quang Fisheries Corporation (“Vinh Quang”); Vietnam Association of Seafood Exporters and Producers (“VASEP”); Binh An Seafood Joint Stock Company (“Binh An”); and Catfish Farmers of America, an association of processors and growers, and individual U.S. catfish processors, America's Catch, Alabama Catfish Inc. dba Harvest Select Catfish, Inc., Heartland Catfish Company, Magnolia Processing, Inc. dba Pride of Pond, and Simmons Farm Raised Catfish, Inc. (collectively “CFA”), challenging various aspects of Commerce's final determination. See Order on Consolidation and Briefing Schedule, July 23, 2013, ECF No. 31. Each party filed a Rule 56.2 motion for judgment on the agency record challenging Commerce's Final Results. See Vinh Hoan

Corporation's Rule 56.2 Mot. J. Upon Agency R., Nov. 14, 2013, ECF No. 45; Pl.'s Rule 56.2 Mot. J. Upon Agency R., Nov. 14, 2013, ECF No. 41; Pl.'s Rule 56.2 Mot. J. Upon Agency R., Nov. 14, 2013, ECF No. 38; Mot. J. Agency R. Under USCIT Rule 56.2, Nov. 14, 2013, ECF No. 40 (“Binh An Mot.”); Pls.' Rule 56.2 Mot. J. Upon Agency R., Nov. 14, 2013, ECF No. 43.

In Vinh Hoan

, the court held that Commerce's primary surrogate country selection of Indonesia was contrary to law and not supported by substantial evidence. Vinh Hoan, 39 CIT at –––– – ––––, 49 F.Supp.3d at 1296–1321. The court remanded Commerce's primary surrogate country selection and directed Commerce to: (1) consider 2011 gross national income (“GNI”) record evidence in its primary surrogate country selection, id. at –––– – ––––, 49 F.Supp.3d at 1296–1302 ; (2) consider the relative differences in GNI between Vietnam and potential surrogate country candidates as well as differences in data quality, id. at –––– – ––––, 49 F.Supp.3d at 1302–06 ; (3) to the extent Commerce continues to rely upon non-fish FOPs to make its primary surrogate country selection, evaluate the alternative data sources based upon all of its selection criteria, id. at ––––, –––– – ––––, 49 F.Supp.3d at 1306, 1309–11

; and (4) weigh economic comparability against the strengths and weaknesses of the factors data in making its surrogate country selection. Id. at ––––, 49 F.Supp.3d at 1303.

The court also held that Commerce's application of facts available for certain costs pertaining to consignment sales to a specific customer, id. at –––– – ––––, 49 F.Supp.3d at 1322–23

, and Commerce's use of a FOP ratio in which the denominator included glazing weight were not supported by substantial evidence. Id. at –––– – ––––, 49 F.Supp.3d at 1323–26. Finally, the court granted Defendant's request for a voluntary remand for Commerce to reconsider its calculation for respondents' fish oil byproduct offset. Id. at –––– – ––––, 49 F.Supp.3d at 1321–22. The court reserved judgment on the parties' other challenges to Commerce's selection of SV data sources to value respondents' FOPs. See id. at ––––, 49 F.Supp.3d at 1291.

Commerce issued its draft remand redetermination on May 14, 2015. See Draft Results of Redetermination Pursuant to Vinh Hoan Corporation et al. v. United States , 49 F.Supp.3d 1285 (2015)

, PD 5, bar code 3276279-01 (May 14, 2015) (“Draft Remand Redetermination”). The parties submitted comments on various issues within Commerce's Draft Remand Redetermination. See Binh An Comments on Draft Remand Redetermination, PD 9, bar code 3277761-01 (May 21, 2015); Vinh Hoan Comments on Draft Results of Remand Determination Pursuant to Vinh Hoan Corporation et al. v. United States , 49 F.Supp.3d 1285 (2015), PD 12, bar code 3280579-01 (June 1, 2015) (“Vinh Hoan Comments on Draft Remand”); Petitioners' Comments on Draft Remand Redetermination, PD 13, bar code 3280875-01 (June 2, 2015).

The parties filed comments with the court regarding Commerce's remand results on October 23, 2015. See Pl. VASEP's Comments Resp. to Department of Commerce's Final Results of Redetermination, Oct. 23, 2015, ECF No. 148 (“VASEP Comments”); Pl.'s Comments Final Results Redetermination Pursuant to Remand, Oct. 23, 2015, ECF No. 149 (“Vinh Hoan Comments”); Comments Final Results of Redetermination Pursuant to Vinh Hoan Corporation et al . v. United States , 49 F.Supp.3d 1285 (2015)

, Oct. 23, 2015, ECF No. 150 (“Binh An Comments”); Pls.' Comments Def.'s Remand Results, Oct. 26, 2015, ECF No. 151 (“CFA Comments”). Defendant and Defendant-Intervenors filed replies to the comments on...