Amanda Foods (Vietnam) Ltd. v. United States

2011 CIT 39

• Court: United States Court of International Trade
• Decided: April 14, 2011
• Docket: Consol. 08-00301
• Status: Published

Opinion

Slip Op. 11-39

UNITED STATES COURT OF INTERNATIONAL TRADE

AMANDA FOODS (VIETNAM) LTD., et al.,

Plaintiffs, Before: Pogue, Chief Judge

–v– Consol.1 Court No. 08-00301

UNITED STATES,

Defendant,

– and –

AD HOC SHRIMP TRADE ACTION COMMITTEE,

Defendant-Intervenor.

OPINION

[Affirming Department of Commerce’s final results of redetermination pursuant to second court remand]

Dated: April 14, 2011

Mayer Brown LLP (Matthew J. McConkey and Jeffery C. Lowe) for Plaintiff Amanda Foods (Vietnam) Ltd.

Thompson Hine LLP (Matthew R. Nicely and David S. Christy) and Winston & Strawn LLP (William H. Barringer) for Consolidated Plaintiffs Ca Mau Seafood Joint Stock Company; Cadovimex Seafood Import-Export and Processing Joint-Stock Company; Cafatex Fishery Joint Stock Corporation; Can Tho Agricultural and Animal Products Import Export Company; Coastal Fisheries Development Corporation; C.P. Vietnam Livestock Co., Ltd.; Cuulong Seaproducts Company; Danang Seaproducts Import Export Corporation; Investment Commerce Fisheries Corporation; Minh Hai Export Frozen Seafood Processing Joint-Stock Company; Minh Hai Joint-Stock Seafoods Processing Company; Ngoc Sinh Private Enterprise; Nha Trang Fisheries Joint

1 The actions consolidated herein include Court Nos. 08- 00347 and 08-00325, the latter of which has been dismissed by stipulation between the parties. Consol. Court No. 08-00301 Page 2

Stock Company; Nha Trang Seaproduct Company; Phu Cuong Seafood Processing & Import-Export Co., Ltd.; Sao Ta Foods Joint Stock Company; Soc Trang Aquatic Products and General Import-Export Company; Thuan Phuoc Seafoods and Trading Corporation; UTXI Aquatic Products Processing Company; Viet Foods Co., Ltd.; Kim Anh Co., Ltd.; and Phuong Nam Co., Ltd.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stephen C. Tosini), and, of counsel, Jonathan M. Zielinski, Attorney, Office of the Chief Counsel for Import Administration, Department of Commerce, for Defendant United States.

Picard Kentz & Rowe LLP (Andrew W. Kentz, Jordan C. Kahn, and Nathaniel M. Rickard) for Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

Pogue, Chief Judge: This consolidated action is again before

the court following a second remand of the final results of the

second administrative review of the antidumping (“AD”) duty order

covering frozen warmwater shrimp from the Socialist Republic of

Vietnam.2

At issue is the Department of Commerce’s assignment, to

2 See Final Results of [Second] Redetermination Pursuant to Court Remand (Dec. 2, 2010) (“Second Remand Results”)(filed with the court on Dec. 9, 2010 [Dkt. No. 94]); Amanda Foods (Vietnam) Ltd. v. United States, __ CIT __, 714 F. Supp. 2d 1282, 1295-96 (2010) (“Amanda II”) (remanding Final Results of Redetermination Pursuant to Court Remand (Mar. 3, 2010) (“First Remand Results”)); Amanda Foods (Vietnam) Ltd. v. United States, __ CIT __, 647 F. Supp. 2d 1368, 1382 (2009) (“Amanda I”) (remanding Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 73 Fed. Reg. 52,273 (Dep’t Commerce Sept. 9, 2008) (final results and final partial rescission of AD duty administrative review) (“Final Results”)). The period of review (“POR”) covers entries made from February 1, 2006 through January 31, 2007. Final Results, 73 Fed. Reg. at 52,273. Consol. Court No. 08-00301 Page 3

Plaintiffs,3 of a dumping rate higher than the average of the

zero and de minimis rates assigned to the individually

investigated respondents in the review.4

In its Second Remand Results, Commerce changed course and,

after corroborating the reasonableness of doing so, assigned to

the Plaintiffs the average of the zero and de minimis rates

received by the individually investigated respondents. This

decision comports with the court’s remand order in Amanda II,

relies on a reasonable interpretation of the AD statute, and is

supported by substantial evidence. Therefore, as explained more

fully below, the Second Remand Results are affirmed.

3 Plaintiffs are cooperative, non-individually investigated respondents in the administrative review, see Section 777A(c)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677f-1(c)(2) (permitting Commerce to limit its examination to a subset of the respondents for whom review was requested, where it is not practicable to determine individual dumping margins for all respondents) (all further citation to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, 2006 edition). Plaintiffs have established their entitlement to a rate separate from that of the Vietnam-wide entity. See Amanda I, __ CIT at __, 647 F. Supp. 2d at 1374 & n.9 (quoting Decca Hospitality Furnishings, LLC v. United States, 29 CIT 920, 921, 391 F. Supp. 2d 1298, 1300 (2005) (“While Commerce presumes that all companies [operating in a non-market economy, such as Vietnam] are under state-control, a company may rebut this presumption, and therefore qualify for an antidumping duty rate separate from the [country]-wide rate, if it demonstrates de jure and de facto independence from government control.”)). 4 All individually-investigated respondents’ margins were zero or de minimis. Final Results, 73 Fed. Reg. at 52,274-75. Consol. Court No. 08-00301 Page 4

BACKGROUND5 A. Amanda I

In its original Final Results, rather than averaging the two

mandatory respondents’ zero and de minimis margins to calculate

dumping margins for cooperative non-individually investigated

respondents entitled to a separate rate (“Plaintiffs” or “the

separate rate companies”), the Department of Commerce (“Commerce”

or the “Department”) assigned to Plaintiffs the same rates

assigned to them previously in the original investigation leading

to the AD order. Final Results, 73 Fed. Reg. at 52,275. Those

rates, of course, were based on sales made prior to the AD

order.6 To Commerce, these rates were appropriate, as the most

recent rate that Plaintiffs had received in a prior proceeding,

because they were “reflective of the range of commercial behavior

demonstrated by exporters of subject merchandise during a very

recent period in time.” Id.

In Amanda I, the court found Commerce’s decision unsupported

by the record, as the factors cited – that thirty-five

uncooperative companies received margins based on adverse facts

5 While some of the court’s conclusions are summarized in the Background section of this opinion, familiarity with the court’s decisions in Amanda I and Amanda II is presumed. 6 Separate rate companies that were individually examined in the first administrative review of this antidumping duty order were assigned the rate they received in the first review. Id. However, none of the rates assigned based on rates from the first review are at issue in this case. Consol. Court No. 08-00301 Page 5

available in the second review, and that Commerce found the

circumstances of the second review to be similar to those of the

preceding review7 – are unrelated to the pricing behavior of

cooperative separate rate companies during the second POR. Amanda

I, __ CIT at __, 647 F. Supp. 2d at 1381. The court therefore

remanded Commerce’s decision, directing the Department to assign

to Plaintiffs the weighted average of the mandatory respondents’

rates, or to provide justification, based on substantial evidence

on the record, for using another rate. Id. at 1382.

B. Amanda II

In its first remand redetermination, the Department

continued to defend the rates assigned to Plaintiffs in the Final

Results of the second review. First Remand Results 13.

Specifically, the Department argued that the AD statute

articulates a preference against the use of zero or de minimis

margins when calculating rates for non-individually investigated

respondents. Id. at 14. In addition to this statutory

interpretation, the Department pointed to the presence of non-

cooperative respondents in the first and second reviews, as well

as the calculation of transaction-specific above-de minimis

dumping margins for at least one mandatory respondent in the

7 See Final Results, 73 Fed. Reg. at 52,275; Issues & Decision Mem., A-552-802, APR 06-07 (Sept. 2, 2008), Admin. R. Pub. Doc. 231 (adopted in Final Results, 73 Fed. Reg. at 52,273), Cmt. 6 at 19. Consol. Court No. 08-00301 Page 6

second review. To Commerce, these factors constituted evidence

that continued dumping under the AD duty order made assigning to

Plaintiffs the average of the mandatory respondents’ zero and de

minimis rates inappropriate in this case. Id. at 14-18.

In Amanda II, the court concluded that the Department’s

statutory interpretation was unreasonable and therefore not

entitled to deference. As the court explained, the statute

specifically contemplates, as potentially reasonable, the

assignment to non-individually investigated companies of the

average of the zero and de minimis rates received by individually

investigated companies. Amanda II, __ CIT at __, 714 F. Supp. 2d

at 1291-92. Consequently, Commerce’s contrary prohibition on the

use of these rates could not be reasonable. Furthermore, as a

factual matter, the court concluded that neither the minimal

transaction-specific positive dumping margins of one mandatory

respondent nor the presumption of dumping imputed to non-

cooperating respondents constituted substantial evidence in

support of the rates assigned to the separate rate companies.

Amanda II, 714 F. Supp. 2d at 1292-96. The Department’s first

redetermination on remand therefore failed to comply with the

court’s remand order in Amanda I. Accordingly, the court again

remanded, instructing the Department to “employ a reasonable

method [for calculating Plaintiffs’ rates], which may ‘includ[e]

averaging the estimated weighted average dumping margins Consol. Court No. 08-00301 Page 7

determined for the exporter and producers individually

investigated.’” Id. at 1296 (quoting 19 U.S.C. § 1673d(c)(5)(B)).

Moreover, the court instructed the Department to “assign to

Plaintiffs dumping margins for the second POR which are

reasonable considering the evidence on the record as a whole.”

Id. The court also ordered that Commerce could reopen the

evidentiary record to the extent necessary. Id. (noting that

neither Petitioner nor the Plaintiffs objected to reopening the

evidentiary record of this review).

C. Second Remand Results

In its second redetermination pursuant to court remand, in

order to provide supplementary evidence sufficient to properly

support the assignment of a rate to the separate rate companies,

the Department reopened the record. Second Remand Results 4.

Specifically, Commerce requested Plaintiffs to provide quantity

and value (“Q&V”) data for all POR sales on a shrimp count-size

specific basis. Id. at 5. The Department then compared the

count-size specific data for each Plaintiff to the count-size

specific weighted-average normal value of the mandatory

respondents in the second administrative review. Id.8

8 Commerce explains that “[t]he methods employed in making these comparisons included estimated adjustments such as: 1) calculating an average unit value (“AUV”) of each count size from the Q&V data; 2) unit of measure conversions; 3) a matching of count sizes between the Q&V data and the weighted-average normal values [], and; 4) gross price to net price conversions Consol. Court No. 08-00301 Page 8

“After having conducted these analyses, the Department

determined that the record, with the additional count-size

specific Q&V data, does not show evidence of dumping by the 23

Plaintiffs during this POR.” Id. Having thus corroborated the

reasonableness of assigning to Plaintiffs the average of the

mandatory respondents’ zero and de minimis rates as their dumping

rates for this POR, Commerce applied this methodology. Id. at 6.

While Plaintiffs “fully support” the Second Remand Results,

Comments on the [Second Remand Results] on Behalf of [Pls.] 2,

Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee

(“AHSTAC”), the Petitioner, argues that the Second Remand Results

are contrary to law because Commerce’s explanation for its

determination of Plaintiffs’ rates in this review does not

comport with a reasonable reading of the statute.9

for each count-size specific AUV to approximate the gross to net price deductions made in a typical dumping margin analysis.” Second Remand Results 5. 9 See Def.-Intervenor’s Reply to Pls.’ Comments on [Second Remand Results] (“Def.-Int.’s Br.”) 6 (“[W]hen Commerce elected to reopen the record, the agency chose not to adjust [normal values] to reflect the differing experiences of Plaintiffs and the mandatory respondents, nor did Commerce gather information necessary to calculate dumping margins in accordance with the statute.”); 7 (“A determination to assign de minimis margins based on an individualized analysis of the Plaintiffs that is incapable of determining whether these parties had, in fact, dumped subject merchandise during the review period is not reasonable is therefore contrary to law.” (citation omitted)); 8 (“Commerce’s comparison of Plaintiffs’ Q&V data to the mandatory respondents’ unadjusted [normal values] does not prove the absence of dumping by Plaintiffs.”). Consol. Court No. 08-00301 Page 9

STANDARD OF REVIEW

“The court will sustain the Department’s determination upon

remand if it complies with the court’s remand order, is supported

by substantial evidence on the record, and is otherwise in

accordance with law.” Amanda II, __ CIT at __, 714 F. Supp. 2d

at 1288 (quoting Jinan Yipin Corp. v. United States, __ CIT __,

637 F. Supp. 2d 1183, 1185 (2009) (citing 19 U.S.C.

§ 1516a(b)(1)(B)(i))).

DISCUSSION

Commerce’s methodology for calculating separate rates for

Plaintiffs in the Second Remand Results is a reasonable

interpretation of the agency’s authority under the AD statute,

and was reasonably applied and supported by substantial evidence

on the record.

As the court has previously observed, the statute does not

address the methodology that Commerce must use when, as in this

case, assigning dumping margins to companies that were not

individually investigated in an administrative review. See Amanda

II, __ CIT at __, 714 F. Supp. 2d at 1289 (explaining that

Commerce generally relies in such situations on 19 U.S.C.

§ 1673d(c)(5) (the “all others rate” provision), which applies to

investigations of sales at less than fair value prior to the

imposition of an AD duty order).

In Amanda II, the court held that Commerce may not Consol. Court No. 08-00301 Page 10

categorically exclude averaging the zero and de minimis rates

received by all individually investigated respondents from the

Department’s consideration of reasonable methodologies for

determining rates for companies not individually investigated.

Id. at 1291-92. This is because the statute explicitly

contemplates averaging the zero and de minimis rates received by

individually investigated respondents as a reasonable methodology

for assigning an estimated ‘all others rate’ in cases where all

rates calculated for individually investigated respondents are

zero or de minimis. Id.10

In its Second Remand Results, Commerce changed course and

employed the methodology provided by the statute as a reasonable

approach for assigning rates to non-individually investigated

companies in proceedings where all rates calculated for mandatory

10 (“Simply put, when a statutory provision specifically lists ‘averaging the [zero and de minimis] estimated weighted average dumping margins determined for the exporters and producers individually investigated’ as the sole provided example of ‘a reasonable method to establish the estimated all-others rate’ when all mandatory respondents’ margins are zero or de minimis, 19 U.S.C. § 1673d(c)(5)(B), it is impermissible to interpret this provision as expressing a preference against the use of such methodology in such situations. This must particularly be the case when the ‘authoritative expression by the United States concerning the interpretation and application of . . . this Act,’ 19 U.S.C. § 3512(d) (referring to the Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 (1994), reprinted in 1994 U.S.C.A.A.N. 404 (“SAA”)), expressly states that the allegedly disfavored methodology is in fact ‘[t]he expected method in such cases.’” (citing SAA, 1994 U.S.C.A.A.N. at 4201) (footnote omitted)). Consol. Court No. 08-00301 Page 11

respondents are zero or de minimis. See Second Remand Results 8-

9; Amanda II, __ CIT at __, 714 F. Supp. 2d at 1291; 19 U.S.C.

§ 1673d(c)(5)(B). Accordingly, the methodology employed in the

Second Remand Results comports with a permissible reading of the

AD statute, and is therefore not contrary to law. Amanda II, __

CIT at __, 714 F. Supp. 2d at 1291; see Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (an

agency acts contrary to law if it acts based on an impermissible

construction of its statutory authority).

In addition, Commerce confirmed the reasonableness of using

this approach with supplementary evidence. Second Remand Results

9 (explaining that Commerce “compared [] supplementary Q&V data

[obtained from] the 23 Plaintiffs to a weighted-average [normal

value] for the mandatory respondents,” and concluded that the

comparisons “yielded information that provided no evidence that

the 23 Plaintiffs were dumping during the POR”). The Department

interpreted this supplementary evidence to support the conclusion

that averaging the mandatory respondents’ zero and de minimis

rates in this case would result in rates that were reasonably

reflective of the non-individually investigated companies’

pricing behavior. See id. In other words, because the Q&V data

indicated that the count-size specific U.S. sales of the separate

rate respondents were in line with the mandatory respondents’

count-size specific weighted-average normal values, the Consol. Court No. 08-00301 Page 12

Department inferred that the separate rate companies’ pricing

behavior was not out of line with the behavior of the mandatory

respondents, who were found not to be dumping. Because this

inference is not unreasonable,11 the application of Commerce’s

chosen methodology for determining Plaintiffs’ rates in this case

was supported by substantial evidence. See Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938) (substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion”).

AHSTAC complains that the Department did not calculate

dumping margins for Plaintiffs in accordance with the statutory

11 AHSTAC argues that, “[a]s the Department [could] not be certain that the products sold by the separate rate companies were not similar to the products having the highest reported Normal Values within each count size range, for each margin calculation the agency should [have] employ[ed] as Normal Value the highest reported Normal Value within each count size range.” Def.-Int.’s Br. 5 (quotation marks and citation omitted). Here, however, where Commerce did not select the Plaintiff separate rate companies for full review, but rather was testing whether it was appropriate to apply the statutorily permitted methodology, it was not unreasonable for Commerce to use count-size specific weighted-average normal values, rather than the highest normal values available. While AHSTAC would have preferred another approach, it does not allege that Commerce erred in its calculations or that the results were aberrational. Consol. Court No. 08-00301 Page 13

requirements of Sections 1675(a)(2)(A),12 1677a(a),13 and 1677b.14

Def.-Int.’s Br. 4-7. But Commerce is not required to calculate

dumping margins for Plaintiffs in the same way as it calculates

the margins of individually investigated respondents. See

19 U.S.C. § 1677f-1(c) (providing a general rule for determining

dumping margins under Section 1675(a), as well as an exception,

applicable where it is not practicable to make individual

weighted average dumping margin determinations for all

respondents). Were this not so, then that portion of the statute

which allows the Department to limit its examination to a subset

of the respondents for whom review was requested, id., would be

rendered meaningless - an impermissible result that renders

impermissible the statutory construction which leads to it. See

Duncan v. Walker, 533 U.S. 167, 174 (2001) (“[A] statute ought,

upon the whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void, or

insignificant.” (internal quotation marks and citation omitted)).

Rather, all that was required of Commerce on remand was to

12 19 U.S.C. § 1675(a)(2)(A) (generally, in determining dumping margins during administrative reviews of AD duty orders, Commerce shall determine the normal value, export price (or constructed export price), and the dumping margin for each entry). 13 Id. at § 1677a(a) (determination of export price). 14 Id. at § 1677b (determination of normal value). Consol. Court No. 08-00301 Page 14

use a reasonable method to calculate Plaintiffs’ margins in this

review, and to support the chosen margins with a reasonable

reading of the evidence on the record. Amanda II, __ CIT at __,

714 F. Supp. 2d at 1296. Commerce has done so. It has applied a

methodology specifically contemplated in the AD statute as a

reasonable approach under similar circumstances, id. at 1291, and

has reasonably corroborated the resulting rates with supplemental

record evidence that a reasonable mind could accept as sufficient

to support its conclusion – that the average of the mandatory

respondents’ zero and de minimis rates yields rates that are not

unreasonably reflective of Plaintiffs’ actual pricing behavior.

See Second Remand Results 9.

CONCLUSION

For all of the foregoing reasons, the Department’s Second

Remand Results are AFFIRMED. Judgment will be entered

accordingly.

It is SO ORDERED.

/s/ Donald C. Pogue Donald C. Pogue, Chief Judge

Dated: April 14, 2011 New York, N.Y.