Weishan Hongda Aquatic Food Co., Ltd. v. United States

• Decision Date: 25 October 2017
• Docket Number: Slip Op. 17–145,Court No. 16–00073
• Citation: 273 F.Supp.3d 1279
• Parties: WEISHAN HONGDA AQUATIC FOOD CO., LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, and Crawfish Processors Alliance, Defendant–Intervenor.
• Court: U.S. Court of International Trade

273 F.Supp.3d 1279

WEISHAN HONGDA AQUATIC FOOD CO., LTD., et al., Plaintiffs,

v. UNITED STATES, Defendant,andCrawfish Processors Alliance, Defendant–Intervenor.

Court No. 16–00073

Slip Op. 17–145

United States Court of International Trade.

October 25, 2017

Dharmendra N. Choudhary, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington, DC, argued for Plaintiffs. With him on the brief was Francis J. Sailer.

Mollie L. Finnan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With her on 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 Emily R. Beline, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

John C. Steinberger, Adduci, Mastriani & Schaumberg, LLP, of Washington, DC, argued for Defendant–Intervenor. With him on the brief was Will E. Leonard.

OPINION

Barnett, Judge:

This matter is before the court following the U.S. Department of Commerce's ("Commerce" or the "agency") redetermination upon remand in this case. See Final Results of Remand Redetermination ("Remand Results"), ECF No. 51–1.

Plaintiffs Weishan Hongda Aquatic Food Co., Ltd ("Weishan"), China Kingdom (Beijing) Import & Export Co., Ltd. ("China Kingdom"), Shanghai Ocean Flavor International Trading Co., Ltd. ("Ocean Flavor"), and Deyan Aquatic Products and Food Co., Ltd. ("Deyan") (collectively, "Plaintiffs") initiated this case challenging Commerce's Final Results in the 2013–2014 administrative review ("AR") and new shipper review ("NSR") of the antidumping duty order covering freshwater crawfish tail meat from the People's Republic of China ("PRC" or "China").¹ See Freshwater Crawfish Tail Meat from the People's Republic of China , 81 Fed. Reg. 21,840 (Dep't Commerce Apr. 13, 2016) (final results of antidumping duty admin. review and new shipper review; 2013–2014) (" Final Results "), PJA Doc. 21, NSR–PR 160, ECF No. 26–6, as corrected in Freshwater Crawfish Tail Meat from the People's Republic of China , 81 Fed. Reg. 23,457 (Dep't Commerce Apr. 21, 2016) (notice of correction to final results of antidumping duty admin. and new shipper reviews; 2013–2014) ("Am. Final Results "), PJA Doc. 22, NSR–PR 165, ECF No. 26–7, and accompanying Issues and Decision Memorandum, A–570–848 (Apr. 8, 2016) ("I & D Mem."), PJA Doc. 17, NSR–PR 151, ECF No. 26–8.

Specifically, Plaintiffs challenge Commerce's rejection of Thai financial statements in favor of a 2014 Annual Report from a South African seafood processor, Oceana Group (the "Oceana Report"), to value factory overhead, selling, general and administrative expenses, and profit (hereinafter referred to as "financial ratios"). Plaintiffs argue that Commerce failed to adequately support or explain its determination that the Oceana Report provided the necessary information to accurately calculate financial ratios or compare the Thai and South African financial statements to determine which was more reliable and representative of Plaintiffs' production experience, and the Thai financial statements are "[v]astly [s]uperior" to the Oceana Report. See Pl.'s [sic] Rule 56.2 Mot. for J. on the Agency R. and Br. in Supp. of Pl.'s [sic] Rule 56.2 Mot. for J. on the Agency R. ("Pls.' Mem.") at 14–31, ECF No. 34. Plaintiffs' third basis for challenging Commerce's reliance on the Oceana Report is their disputing of Commerce's finding that South Africa is a significant producer of comparable merchandise. See id. at 28–29.

Before oral argument on Plaintiffs' Rule 56.2 motion for judgment on the agency record, Defendant requested that the court remand the determination for Commerce to reconsider its factual basis for finding that South Africa is a significant producer of comparable merchandise, and the court granted the request. See Order (March 21, 2017), ECF No. 50. In the Remand Results, Commerce affirmed its conclusion that South Africa is a significant producer of comparable merchandise and, therefore, continued its reliance on the Oceana Report to value financial ratios. Remand Results at 1–2, 6–11.

Following Commerce's issuance of the Remand Results, Parties filed a joint status report wherein Plaintiffs assert they no longer challenge Commerce's determination that South Africa is a significant producer of comparable merchandise. Post Remand Joint Status Report ("Status Report") at 1, ECF No. 53. Plaintiffs, however, seek completion of the court's review of issues that were not addressed on remand. Id. at 2.

For the following reasons, the court sustains the Final Results , as corrected by the Am. Final Results and as amended by the Remand Results.

BACKGROUND

In 1997, Commerce issued an antidumping duty order covering freshwater crawfish tail meat from China. See Freshwater Crawfish Tail Meat From the People's Republic of China , 62 Fed. Reg. 41,347 (Dep't Commerce Aug. 1, 1997) (notice of final determination of sales at less than fair value) ("Final LTFV Determination "), as corrected in Freshwater Crawfish Tail Meat From the People's Republic of China , 62 Fed. Reg. 48,218 (Dep't Commerce Sept. 15, 1997) (notice of amendment to final determination of sales at less than fair value and antidumping duty order).²

On September 2, 2014, Commerce published a notice of opportunity to request an administrative review in this proceeding. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review , 79 Fed. Reg. 51,958 (Dep't Commerce Sept. 2, 2014). Defendant–Intervenor, Crawfish Processors Alliance ("CPA"), filed requests for review of China Kingdom and Deyan; Ocean Flavor and China Kingdom filed their own requests for review. See Request for Admin. Review, PJA Doc. 1, AR–PR 2, ECF No. 41; Freshwater Crawfish Tail Meat from the People's Republic of China: Respondent Selection for the 2013–2014 Antidumping Duty Admin. Review (Dec. 16, 2014), PJA Doc. 3, AR–PR 24, ECF No. 41. In October 2014, Commerce initiated an administrative review for the period of review September 1, 2013 to August 31, 2014. See Initiation of Antidumping and Countervailing Duty Admin. Reviews , 79 Fed. Reg. 64,565 (Dep't Commerce Oct. 30, 2014). On November 21, 2014, Commerce aligned the administrative review with the concurrent new shipper review initiated in connection with Weishan. See Alignment of New–Shipper Reviews of Freshwater Crawfish Tail Meat from the PRC with the Concurrent Admin. Review of Freshwater Crawfish Tail Meat from the PRC ("Alignment Ltr."), PJA Doc. 2, AR–PR 19, ECF No. 41.

On October 7, 2015 Commerce published its preliminary results. Freshwater Crawfish Tail Meat From the People's Republic of China , 80 Fed. Reg. 60,624 (Dep't Commerce Oct. 7, 2015) (prelim. results of antidumping duty admin. review and new shipper reviews; 2013–2014) ("Prelim. Results "), PJA Doc. 11, NSR–PR 139, ECF No. 41, and accompanying Preliminary Decision Memorandum, A–570–848 (Oct. 7, 2015) ("Prelim. Decision Mem."), PJA Doc. 7, NSR–PR 123, ECF No. 41. Commerce determined that Thailand, South Africa, Colombia, Bulgaria, Ecuador, and Indonesia were potential surrogate countries based on their economic comparability to the PRC. Freshwater Crawfish Tail Meat from the PRC: Selection of a Surrogate Country ("Surrogate Cntry Mem.") at 2, PJA Doc. 8, NSR–PR 124, ECF No. 41. Upon review of Global Trade Atlas ("GTA") export statistics, Commerce concluded that none of the potential surrogate countries produced freshwater crawfish tail meat or whole crawfish. Id. at 4. Therefore, Commerce examined GTA export data for processed seafood, which it had deemed comparable merchandise in prior segments of the proceeding, and determined that Indonesia and Thailand were significant producers of processed seafood. Id. Although Commerce had surrogate values for most of the factors of production from both Thailand and Indonesia, Commerce had financial statements solely from Thailand. Id. at 5. Thus, Commerce selected Thailand as the primary surrogate country. Prelim. Decision Mem. at 5; Surrogate Cntry Mem. at 5.

During the preliminary investigation, CPA argued that a condition known as "Early Mortality Syndrome" ("EMS") had "decimated" Thai shrimp populations throughout calendar years 2013 and 2014 and, thus, Commerce should reject Thai financial information in favor of the Oceana Report. Preliminary Surrogate Value Memorandum ("Prelim. Surrogate Value Mem.") at 2, PJA Doc. 9, NSR–PR 125, ECF No. 41; Pet'r Surrogate Value Cmts., Ex. 5 (the "Oceana Report"), PJA Doc. 6, NSR–PR 66, ECF No. 41. Finding the more contemporaneous Thai financials unusable due to the effects of EMS on Thai seafood processors from 2013 to 2014, in its Preliminary Results, Commerce relied on 2012 financial statements from two Thai seafood processors, Surapon Food Public Company Ltd. ("Surapon") and Kiang Huat Sea Gull Trading Frozen Food Public Company Ltd. ("King Huat"). Prelim. Surrogate Value Mem. at 6; Prelim. Decision Mem. at 15; see also I & D Mem. at 3 (identifying the Thai seafood processors). Commerce preliminarily calculated dumping margins of zero percent for each plaintiff. Prelim. Results , 80 Fed. Reg. at 60,625.

In its case brief filed in the administrative and new shipper reviews, CPA argued that Commerce should not use the 2012 financial statements of Surapon and Kiang Huat because EMS had begun impacting Thai shrimp populations in 2012, not 2013, and the statements show that the companies had received countervailable export subsidies. CPA Case Br. and Request for Hr'g ("CPA Case Br.") at 1–7, PJA Docs. 4, 12, AR–PR 99, NSR–PR 140, ECF No. 41; I & D Mem. at 3–4.³ CPA urged Commerce to use the Oceana Report on the basis that South Africa is a significant producer of comparable merchandise, and the annual report is contemporaneous with...