AMANDA FOODS (VIETNAM) LIMITED, et al., Plaintiffs, v. UNITED STATES, Defendant, and Ad Hoc Shrimp Trade Action Committee and The Domestic Processors, Defendant-Intervenors.
Court No. 09-00431
United States Court of International Trade
May 30, 2012
Slip Op. 12-68
POGUE, Chief Judge
ORDERED that Commerce shall file the Remand Redetermination within ninety (90) days from the date of this Opinion and Order, that each plaintiff, plaintiff-intervenor, and defendant-intervenor shall file any comments on the Remand Redetermination within forty-five (45) days from the date on which the Remand Redetermination is filed, and that defendant shall file any response to those comments within thirty (30) days from the date on which the last comment is filed.
Matthew J. McConkey and Jeffery C. Lowe, Mayer Brown LLP, of Washington, DC, for Plaintiff Amanda Foods (Vietnam) Ltd.
John J. Kenkel and J. Kevin Horgan, DeKieffer & Horgan, of Washington, DC, for Consolidated Plaintiff Viet Hai Seafood Co., Ltd.
Matthew R. Nicely and David S. Christy, Jr., Thompson Hine LLP, of Washington, DC, for Consolidated Plaintiffs Bac Lieu Fisheries Joint Stock Co.; Ca Mau Seafood Joint Stock Co.; Cadovimex Seafood Import-Export and Processing Joint-Stock Co.; Cafatex Fishery
Robert G. Gosselink and Jonathan M. Freed, Trade Pacific PLLC, of Washington, DC, for Consolidated Plaintiff Cam Ranh Seafoods Processing Enter. Co.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With him on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the briefs was Jonathan M. Zielinski, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.
Andrew W. Kentz, Jordan C. Kahn, and Nathaniel M. Rickard, Picard Kentz & Rowe LLP, of Washington, DC, for Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.
Elizabeth J. Drake, Geert M. De Prest, and Wesley K. Caine, Stewart and Stewart, of Washington, DC, and Edward T. Hayes, Leake & Andersson, LLP, of New Orleans, LA, for Defendant-Intervenor the Domestic Processors.
OPINION
POGUE, Chief Judge:
This case2 is again before the court following a voluntary remand ordered by Amanda Foods (Vietnam) Ltd. v. United States, 35 CIT __, 807 F.Supp.2d 1332, 1350 (2011) (”Amanda Foods IV“). Amanda Foods IV directed the Department of Commerce (“Commerce” or “the Department“) to reconsider the calculation of the all-others rate for the sixteen3 remaining cooperative, non-individually investigated respondents (“all-others rate“). Upon remand, Commerce reopened the record to obtain, from these cooperative respondents, count-size specific Quantity and Value Questionnaire (“Q & V Questionnaire“) data. After determining that the record, supplemented by this Q & V data, contained no indication of dumping by these cooperative, non-individually investigated respondents, Commerce assigned these respondents a rate equal to an average of the weighted-average dumping margins for the individually investigated respondents. Final Results of Redetermination Pursuant to Court Remand, A-552-802, ARP 07-08 (Mar. 29, 2012), at 6-9, Remand R. Pub. Doc. 18, available at http://ia.ita.doc.gov/remands/11-155.pdf (last visited May 21, 2012) (“Remand Results“).4
Two Defendant-Intervenors, the Ad Hoc Shrimp Trade Action Committee (“AHSTAC“) and a group of Domestic Processors, challenge the Remand Results.
The court has jurisdiction over this action pursuant to
For the reasons explained below, the court affirms the Remand Results.
BACKGROUND
Plaintiffs are cooperative, non-individually investigated respondents in the third administrative review of the AD order covering certain frozen warmwater shrimp from Vietnam. In the proceedings leading to the AR3 Final Results, Commerce, pursuant to
However, after the release of the AR3 Final Results, in response to a challenge to the AR2 Final Results, the court issued a series of opinions rejecting Commerce‘s methodology for calculating the all-others rate when all individually investigated respondents receive zero or de minimis rates. See Amanda Foods (Vietnam) Ltd. v. United States, 33 CIT __, 647 F.Supp.2d 1368 (2009) (remanding the AR2 Final Results to Commerce) (”Amanda Foods I“); Amanda Foods (Vietnam) Ltd. v. United States, 34 CIT __, 714 F.Supp.2d 1282 (2010) (reviewing the remand redetermination conducted pursuant to Amanda Foods I and ordering a second remand) (”Amanda Foods II“); Amanda Foods (Vietnam) Ltd. v. United States, 35 CIT __, 774 F.Supp.2d 1286 (2011) (reviewing the remand redetermination conducted pursuant to Amanda Foods II and affirming the AR2 Final Results) (”Amanda Foods III“).
The facts of the action challenging the AR2 Final Results were similar to those now before the court: Plaintiffs were cooperative, non-individually investigated respondents challenging Commerce‘s assignment of an all-others rate derived from prior reviews when all individually investigated respondents received a zero or de minimis rate. In Amanda Foods I, the court observed that the individually investigated respondents’ zero or de minimis rates, when considered in the light of other
In its remand redetermination following Amanda Foods I, Commerce continued to defend its methodology, arguing that
In its remand redetermination following Amanda Foods II, Commerce changed its methodology and chose to average the de minimis rates of the individually investigated respondents to arrive at the all-others rate. Amanda Foods III, 35 CIT at __, 774 F.Supp.2d at 1289-90. Commerce confirmed the accuracy of this rate by reopening the record to obtain, from the cooperative, non-individually investigated respondents, responses to supplementary Q & V Questionnaires detailing all sales during the period of review on a shrimp count-size specific basis. Id. Using the Q & V Questionnaire data, Commerce compared the count-size specific sales to the count-size specific weighted-average normal value of the mandatory respondents and concluded that the record did not show any evidence of dumping. Id. Satisfied that the rate determined by averaging the zero and de minimis margins of the individually investigated respondents was corroborated by the supplementary evidence, Commerce assigned that average rate as the all-others rate. Id. at 1290. In affirming Commerce‘s methodology, the court held that
[Commerce] has applied a methodology specifically contemplated in the AD statute as a reasonable approach under similar circumstances 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.
Id. at 1292 (citation omitted).
Because Amanda Foods I, II and III called into question the methodology Commerce used in calculating the all-others rate in the third administrative review, Commerce requested a voluntary remand
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.” Jinan Yipin Corp. v. United States, 33 CIT __, 637 F.Supp.2d 1183, 1185 (2009) (citing
DISCUSSION
The court will consider, separately and in turn, the arguments of each Defendant-Intervenor challenging the Remand Results.
I. AHSTAC
AHSTAC argues, principally, that the methodology employed by Commerce in the Remand Results is contrary to the statutorily mandated methodology for calculating a dumping margin. Deft-Intervenor Ad Hoc Shrimp Trade Action Comm.‘s Reply to Pl.‘s Comments on Final Results of Redetermination Pursuant to Court Remand at 2, ECF No. 91 (“AHSTAC‘s Reply Br.“). However, as AHSTAC notes “this Court affirmed the methodology in AR2 over AHSTAC‘s objections.” AHSTAC‘s Reply Br. at 3. As the court has considered and rejected AHSTAC‘s arguments once, see Amanda Foods III, 35 CIT at __, 774 F.Supp.2d at 1290 n. 9 & 1291 n. 11, it remains unpersuaded by the reiteration of these same arguments.
AHSTAC also argues that the withdrawal of six respondents from the litigation is evidence of dumping by the remaining cooperative, non-individually investigated respondents. AHSTAC‘s Reply Br. at 3. But AHSTAC presents no evidence to support such an inference. On the other hand, the rates assigned to the individually investigated respondents, after review, are potentially representative of the respondents as a whole. See Amanda Foods I, 33 CIT at __, 647 F.Supp.2d at 1381. It follows that, absent other evidence, the court will not require Commerce to draw an inference of dumping solely from the withdrawal of these six Plaintiffs.
Nor will the court, in a case where all the remaining parties have cooperated, require Commerce to apply an adverse inference, as AHSTAC suggests it should do. See AHSTAC Reply Br. at 3 (citing
II. The Domestic Processors
The Domestic Processors argue that the method Commerce used to corroborate the
The Domestic Processors’ challenge fails because it conflates the two steps of the methodology Commerce used to determine the all-others rate in the Remand Results. In step one of this methodology, Commerce determines the all-others rate using the statutorily recommended methodology of averaging the weighted-average dumping margins of the individually investigated respondents. In step two, Commerce corroborates the accuracy of this methodology by comparing the Q & V Questionnaire data on a count-size specific basis with the count-size specific normal value of the individually investigated respondents. Thus, when the Domestic Processors state that “these Q+V data do not appear to be reliable and sufficient to support a finding that there is no evidence of dumping by these respondents during the POR, and therefore assignment of de minimis margins on the basis of this data is unreasonable,” Domestic Processors’ Reply Br. at 1 (emphasis added), they are incorrectly identifying the function of the data and methodology upon which the all-others rate is based, as well as what makes such data and methodology reasonable.10 That the Domestic Processors’ statement is incorrect follows from the reasoning behind the court‘s holding in Amanda Foods III, i.e., that averaging the weighted average dumping margins of the individually investigated respondents is a reasonable methodology for setting the all-others rate for cooperative, non-individually investigated respondents.11
Pursuant to
This reasoning is bolstered by the Statement of Administrative Action for the Uruguay Round Agreements Act,12 which notes that averaging the de minimis rates is the expected methodology when all individually investigated respondents receive a zero or de minimis rate:
The expected method in such cases will be to weight-average the zero and de minimis margins and margins determined pursuant to the facts available, provided that volume data is available. However, if this method is not feasible, or if it results in an average that would not be reasonably reflective of potential dumping margins for non-investigated exporters or producers, Commerce may use other reasonable methods.
Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201 (“SAA“); see also Amanda Foods II, 34 CIT at __, 714 F.Supp.2d at 1291-92.
In addition, a presumption of reasonableness is sensible in light of the overall statutory scheme. When Commerce chooses to limit the number of individually investigated respondents pursuant to
All parties agree that the mandatory respondents are presumed to be representative of the respondents as a whole; consequently, the average of the mandatory respondents’ rates may be relevant to the determination of a reasonable rate for the separate rate respondents. More particularly, that the mandatory respondents in the current review were found not to be engaged in dumping was evidence indicating that the responding separate rate Plaintiffs may also no longer be engaged in dumping.
Amanda Foods I, 33 CIT at __, 647 F.Supp.2d at 1380. In other words, when setting an all-others rate pursuant to
Averaging the zero and de minimis rates of the individually investigated respondents is a reasonable methodology for calculating the all-others rate because it relies upon the margins of the individually investigated respondents. Thus, the all-others rate is neither set nor justified by comparison of the Q & V Questionnaire data to the normal value of the individually investigated respondents. Rather, the truncated dumping analysis Commerce conducted using the Q & V Questionnaire data only serves to confirm the results of an otherwise reasonable methodology. Unless some evidence indicates otherwise, the average of the weighted-average dumping margins for the individually investigated respondents is a reasonable all-others rate because it is based on substantial evidence in the form of the rates of the individually investigated respondents.
The Domestic Processors do not challenge the methodology for arriving at the all-others rate, they challenge the methodology by which Commerce confirmed the appropriateness of that rate. See Amanda Foods III, 35 CIT at __, 774 F.Supp.2d at 1291 (“Commerce confirmed the reasonableness of using this approach with supplementary evidence.“). By reopening the record and collecting Q & V Questionnaire data, Commerce sought to ensure that the average of de minimis rates would be “reasonably reflective of potential dumping margins for non-investigated exporters or producers . . . .” SAA, H.R. Doc. No. 103-316 at 873, 1994 U.S.C.C.A.N. at 4201. What data Commerce collected confirmed the appropriateness of the statutorily permitted methodology.
The Domestic Processors, in contrast, have not presented evidence to undermine that finding. The evidence they have presented does not indicate that the dumping margin assigned was inaccurate, it only suggests that a more thorough process of confirmation was possible. Without presenting evidence that undermines the reasonableness of the all-others rate assigned, the Domestic Processors’ arguments are insufficient to call into question the reasonableness of a methodology explicitly presumed reasonable under the statute.
Thus, the court reiterates its finding in Amanda III that
[Commerce] has applied a methodology specifically contemplated in the AD statute as a reasonable approach under similar circumstances 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.
Amanda Foods III, 35 CIT at __, 774 F.Supp.2d at 1292 (citation omitted).
CONCLUSION
For the foregoing reasons, and consistent with the court‘s opinion in Amanda Foods III, 35 CIT at __, 774 F.Supp.2d at 1292, the Department‘s determinations in the AR3 Final Results, 74 Fed.Reg. at 47,191, as amended by the Remand Results, are AFFIRMED.
Judgment will be entered accordingly.
Notes
Method for determining estimated all-others rate
(A) General rule
For purposes of this subsection and section 1673b(d) of this title, the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 1677e of this title.
(B) Exception
If the estimated weighted average dumping margins established for all exporters and producers individually investigated are zero or de minimis margins, or are determined entirely under section 1677e of this title, the administering authority may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated, including averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.