Vinh Quang Fisheries Corporation et al v. United States

Slip Op. 21-131
UNITED STATES COURT OF INTERNATIONAL TRADE
GODACO SEAFOOD JOINT STOCK
COMPANY,
Plaintiff,
and
CAN THO IMPORT-EXPORT JOINT
STOCK COMPANY, GOLDEN QUALITY
SEAFOOD CORPORATION, VINH
QUANG FISHERIES CORPORATION,
NTSF SEAFOODS JOINT STOCK
COMPANY, GREEN FARMS SEAFOOD
JOINT STOCK COMPANY, HUNG
VUONG CORPORATION, and
SOUTHERN FISHERY INDUSTRIES
COMPANY, LTD.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
CATFISH FARMERS OF AMERICA,
SIMMONS FARM RAISED CATFISH,
INC., MAGNOLIA PROCESSING, INC.,
HEARTLAND CATFISH COMPANY,
GUIDRY’S CATFISH, INC., DELTA
PRIDE CATFISH, INC.,
Before: Jennifer Choe-Groves, Judge
Consol. Court No. 18-00063
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 1 of 11

Consol. Court No. 18-00063 	Page 2
CONSOLIDATED CATFISH
COMPANIES LLC, AMERICA’S
CATCH, ALABAMA CATFISH INC.,
Defendant-Intervenors.
OPINION
[Sustaining the second remand results of the U.S. Department of Commerce
following the thirteenth administrative review of the antidumping duty order on
certain frozen fish fillets from the Socialist Republic of Vietnam.]
Dated: September 27, 2021
Andrew B. Schroth, Jordan C. Kahn, and Ned H. Marshak, Grunfeld Desiderio
Lebowitz Silverman & Klestadt LLP, of Washington, D.C., for Plaintiff GODACO
Seafood Joint Stock Company and Consolidated Plaintiff Golden Quality Seafood
Corporation.
Robert G. Gosselink, Jonathan M. Freed, and Kenneth N. Hammer, Trade Pacific
PLLC, of Washington, D.C., for Consolidated Plaintiffs Can Tho Import-Export
Joint Stock Company, Vinh Quang Fisheries Corporation, NTSF Seafoods Joint
Stock Company, Green Farms Seafood Joint Stock Company, and Hung Vuong
Corporation.
Kara M. Westercamp, Trial Attorney, Civil Division, U.S. Department of Justice,
of Washington, D.C., for Defendant United States. With her on the brief were
Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Hendricks
Valenzuela, Office of the Chief Counsel for Trade Enforcement and Compliance,
U.S. Department of Commerce.
Jonathan M. Zielinski, James R. Cannon, Jr., and Nicole Brunda, Cassidy Levy
Kent (USA) LLP, of Washington, D.C., for Defendant-Intervenors Catfish Farmers
of America, Simmons Farm Raised Catfish, Inc., Magnolia Processing, Inc. d/b/a
Pride of the Pond, Heartland Catfish Company, Guidry’s Catfish, Inc., Delta Pride
Catfish, Inc., Consolidated Catfish Companies LLC d/b/a Country Select Catfish,
America’s Catch, and Alabama Catfish Inc. d/b/a Harvest Select Catfish, Inc.
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 2 of 11

Consol. Court No. 18-00063 	Page 3
Choe-Groves, Judge: This action concerns the import of frozen fish fillets,
including regular, shank, and strip fillets and portions thereof, of the species
Pangasius Bocourti, Pangasius Hypophthalmus (also known as Pangasius
Pangasius), and Pangasius Micronemus from the Socialist Republic of Vietnam
(“Vietnam”), subject to the thirteenth administrative review by the U.S.
Department of Commerce (“Commerce”). Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam (“Final Results”), 83 Fed. Reg. 12,717 (Dep’t of
Commerce Mar. 23, 2018) (final results, final results of no shipments, and partial
rescission of the antidumping duty admin. review; 2015–2016); see also Certain
Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision
Mem. for the Final Results of the Thirteenth Antidumping Duty Admin. Review:
2015–2016, ECF No. 18-5 (“Final IDM”); Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam, 82 Fed. Reg. 42,785 (Dep’t of Commerce Sept. 12,
2017) (prelim. results, prelim. determination of no shipments, and partial rescission
of the antidumping duty admin. review; 2015–2016). Before the Court are the
Final Results of Redetermination Pursuant to Court Remand, ECF No. 95-1
(“Second Remand Results”), which the Court ordered in GODACO Seafood Joint
Stock Co. v. United States (“GODACO II”), 45 CIT __, 494 F. Supp. 3d 1294
(2021).
Defendant-Intervenors Catfish Farmers of America, Simmons Farm Raised
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 3 of 11

Consol. Court No. 18-00063 	Page 4
Catfish, Inc., Magnolia Processing, Inc. d/b/a Pride of the Pond, Heartland Catfish
Co., Guidry’s Catfish, Inc., Delta Pride Catfish, Inc., Consolidated Catfish Cos.
LLC d/b/a Country Select Catfish, America’s Catch, and Alabama Catfish, Inc.
d/b/a Harvest Select Catfish, Inc. (collectively, “Defendant-Intervenors”) filed
comments in opposition to the Second Remand Results. Def.-Intervs.’ Comments
Opp’n Second Remand Results, ECF Nos. 99, 100 (“Defendant-Intervenors’
Comments” or “Def.-Intervs.’ Cmts.”). Consolidated Plaintiffs NTSF Seafoods
Joint Stock Company, Vinh Quang Fisheries Corporation, Green Farms Seafood
Joint Stock Company, Hung Vuong Corporation, and Can Tho Import-Export Joint
Stock Company (collectively, “Separate Rate Plaintiffs”) and Defendant United
States (“Defendant”) responded to Defendant-Intervenors’ Comments. Consol.
Pls.’ Resp. Comments [Def.-Interv.] Second Remand Results, ECF Nos. 101, 103
(“Separate Rate Pls.’ Cmts.”); Def.’s Resp. Support Second Remand Results, ECF
No. 102 (“Def.’s Resp.”).
The Court reviews whether Commerce’s separate rate for the non-examined
companies that were granted separate rate status, including Separate Rate
Plaintiffs, (“all-others separate rate”) is supported by substantial evidence. For the
reasons discussed below, the Court holds that the all-others separate rate is
supported by substantial evidence and sustains Commerce’s Second Remand
Results.
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 4 of 11

Consol. Court No. 18-00063 	Page 5
BACKGROUND
The Court presumes familiarity with the underlying facts and procedural
history of this case and recites the facts relevant to the Court’s review of the
Second Remand Results. See GODACO II, 45 CIT at __, 494 F. Supp. 3d at
1303–07; GODACO Seafood Joint Stock Co. v. United States, 44 CIT __, __, 435
F. Supp. 3d 1342, 1347–50, 1360 (2020).
In GODACO II, the Court sustained in part and remanded in part
Commerce’s Final Results of Redetermination Pursuant to Court Remand, ECF
No. 77-1 (“Remand Results”). GODACO II, 45 CIT at __, 494 F. Supp. 3d at
1306. Commerce assigned Plaintiff GODACO Seafood Joint Stock Company
(“GODACO”) an adverse facts available (“AFA”) rate of $3.87/kg, which the
Court sustained. Id. at __, 494 F. Supp. 3d at 1303. Commerce then applied
GODACO’s AFA rate to the cooperating Separate Rate Plaintiffs as the purported
“expected method” under 19 U.S.C. § 1673d(c)(5)(B). Id. at __, 494 F. Supp. 3d at
1304. The Court concluded that Commerce’s application of a total AFA rate to the
cooperating Separate Rate Plaintiffs was unreasonable and not supported by
substantial evidence, and the Court remanded for Commerce to reevaluate the rate
assigned to the Separate Rate Plaintiffs. Id. at __, 494 F. Supp. 3d at 1306.
Under protest, Commerce revised the all-others separate rate by applying a
simple average of the separate rates assigned in the four prior administrative
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 5 of 11

Consol. Court No. 18-00063 	Page 6
reviews of the antidumping duty order and assigned that average rate to the
Separate Rate Plaintiffs. Second Remand Results at 9–11. Commerce revised the
all-others separate rate from $3.87/kg to $0.89/kg. Id. at 11.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(i) and 28
U.S.C. § 1581(c). The Court shall hold unlawful any determination found to be
unsupported by substantial evidence on the record or otherwise not in accordance
with the law. 19 U.S.C. § 1516a(b)(1)(B)(i). The Court also reviews
determinations made on remand for compliance with the Court’s remand order.
Ad Hoc Shrimp Trade Action Comm. v. United States, 38 CIT __, __, 992 F.
Supp. 2d 1285, 1290 (2014), aff’d, 802 F.3d 1339 (Fed. Cir. 2015).
DISCUSSION
I. 	Legal Framework
Commerce is authorized by statute to calculate and impose a dumping
margin on imported subject merchandise after determining it is sold in the United
States at less than fair value. 19 U.S.C. § 1673. The statute authorizes Commerce
to determine an estimated weighted average dumping margin for each individually
examined exporter and producer and one all-others rate to assign to non-examined
companies. Id. § 1673d(c)(1)(B). The U.S. Court of Appeals for the Federal
Circuit has upheld Commerce’s reliance on 19 U.S.C. § 1673d(c)(5) for
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 6 of 11

Consol. Court No. 18-00063 	Page 7
determining the estimated all-others rate “for exporters and producers from
nonmarket economies that demonstrate their independence from the government
but that are not individually investigated.” Changzhou Hawd Flooring Co. v.
United States, 848 F.3d 1006, 1011 (Fed. Cir. 2017) (citation omitted).
The general rule under the statute for calculating the all-others rate is to
weight-average 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 on the basis of facts
available, including adverse facts available. 19 U.S.C. § 1673d(c)(5)(A). If the
estimated weighted average dumping margins established for all exporters and
producers individually investigated are zero or de minimis, or are determined
entirely under 19 U.S.C. § 1677e, Commerce may invoke an exception to the
general rule. Id. § 1673d(c)(5)(B). The Statement of Administrative Action
provides guidance that when the dumping margins for all individually examined
respondents are determined entirely on the basis of the facts available or are zero
or de minimis, the “expected method” of determining the all-others rate is to
weight-average the zero and de minimis margins and margins determined pursuant
to the facts available, provided that volume data is available. Uruguay Round
Agreements Act, Statement of Administrative Action (“SAA”), H.R. Doc. No.
103-316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201.
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 7 of 11

Consol. Court No. 18-00063 	Page 8
Commerce may depart from the “expected method” and use “any reasonable
method” if Commerce reasonably concludes that the expected method is not
feasible or results in an average that would not be reasonably reflective of potential
dumping margins for non-investigated exporters or producers. See 19 U.S.C.
§ 1673d(c)(5)(B); Navneet Publ’ns (India) Ltd. v. United States, 38 CIT __, __,
999 F. Supp. 2d 1354, 1358 (2014) (“[T]he following hierarchy [is applied] when
calculating all-others rates—(1) the ‘[g]eneral rule’ set forth in § 1673d(c)(5)(A),
(2) the alternative ‘expected method’ under § 1673d(c)(5)(B), and (3) any other
reasonable method when the ‘expected method’ is not feasible or does not
reasonably reflect potential dumping margins.”); see also SAA at 873, reprinted in
1994 U.S.C.C.A.N. at 4201.
II. 	Commerce’s All-Others Separate Rate
A. 	Commerce’s Departure from the Expected Method
On second remand, Commerce explained that it departed from the expected
method under protest due to the Court’s prior holding in GODACO II that
Commerce’s application of the AFA rate of $3.87/kg to the fully cooperating
Separate Rate Plaintiffs was unreasonable. Second Remand Results at 9–11, 14–
15; see also GODACO II, 45 CIT at __, 494 F. Supp. 3d at 1306. Commerce
clarified that its previous methodology in the Remand Results applied the expected
method, and that in the Second Remand Results, Commerce departed from the
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 8 of 11

Consol. Court No. 18-00063 	Page 9
expected method under protest and applied “any reasonable method” due to the
Court’s holding in GODACO II. Second Remand Results at 9–11, 14–15.
Commerce reevaluated the all-others separate rate assigned to the Separate Rate
Plaintiffs and assigned a revised dumping margin based on an average of the
separate rates assigned in the four prior administrative reviews of the antidumping
duty order. Id. at 9.
Defendant-Intervenors argue that Commerce deviated unlawfully from the
expected method because the previous rate was both feasible for Commerce to
calculate and there was no evidence that the rate would not be reasonably reflective
of potential dumping margins. Def.-Intervs.’ Cmts. at 2–4. Separate Rate
Plaintiffs and Defendant ask the Court to sustain the Second Remand Results.
Separate Rate Pls.’ Cmts. at 7; Def.’s Resp. at 9.
Because the Court already held that Commerce’s application of the expected
method was unreasonable when Commerce assigned an AFA rate to the
cooperating Separate Rate Plaintiffs, the Court sustains Commerce’s departure
from the expected method in the Second Remand Results.
B. 	Commerce’s Application of “Any Reasonable Method”
After determining that departure from the expected method was appropriate,
Commerce used “any reasonable method” under 19 U.S.C.§ 1673d(c)(5)(B) to
calculate a revised all-others separate rate by applying a simple average of the
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 9 of 11

Consol. Court No. 18-00063 	Page 10
separate rates assigned in the four prior administrative reviews of the antidumping
duty order, resulting in a reduction of the all-others separate rate from $3.87/kg to
$0.89/kg. Second Remand Results at 9–11. Defendant-Intervenors oppose this
revised all-others separate rate as unreasonable and not supported by substantial
evidence. Def.-Intervs.’ Cmts. at 8–9. Separate Rate Plaintiffs and Defendant ask
the Court to sustain the Second Remand Results. See Separate Rate Pls.’ Cmts. at
11–15; Def.’s Resp. at 9–10.
After departing from the “expected method,” the statute allows Commerce to
use “any reasonable method” to determine the all-others separate rate, subject to
the Court’s finding that the determination is reasonable and supported by
substantial evidence on the record. See 19 U.S.C. §§ 1673d(c)(5)(B);
1617a(b)(1)(B)(i). Commerce explained that the selected separate rates from the
previous four administrative reviews were more contemporaneous than the AFA
rate previously assigned to the Separate Rate Plaintiffs in the Remand Results.
Second Remand Results at 9–11. Commerce noted that the margins assigned to
the mandatory respondents from the previous four administrative reviews
accounted for the largest volume of entries to the United States and that the
separate rates ranged from $0.69/kg to $1.20/kg. Id. Commerce stated that the
simple average of the prior four separate rates accounted for any variations
between the periods of review. Id. at 10–11.
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 10 of 11

Consol. Court No. 18-00063 	Page 11
The Court holds that Commerce supported its determination with substantial
evidence and it is reasonable for Commerce to assign an all-others separate rate of
$0.89/kg because the revised rate is based on four separate rates from previous
administrative reviews, which are no longer subject to judicial review, and
averaging the separate rates from four prior reviews accounts for any variations.
CONCLUSION
For the reasons set forth above, the Court sustains Commerce’s Second
Remand Results.
Judgment will be issued accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	September 27, 2021
New York, New York
Case 1:18-cv-00069-JCG Document 29 Filed 09/27/21 Page 11 of 11