Ad Hoc Shrimp Trade Action Committee v. United States , 33 Ct. Int'l Trade 1112 ( 2009 )

Slip Op. 09 - 85
UNITED STATES COURT OF INTERNATIONAL TRADE
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AD HOC SHRIMP TRADE ACTION COMMITTEE, :
Plaintiff, :
v. :
UNITED STATES, : Court No. 07-00380
Defendant, :
-and-
:
GROBEST & I-MEI INDUSTRIAL (VIETNAM)
CO., LTD., :
Intervenor-Defendant. :
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Memorandum & Order
[Plaintiff’s motion for judgment upon the
agency record denied; action dismissed.]
Decided: August 12, 2009
Dewey & LeBoeuf LLP (Bradford L. Ward, Rory F. Quirk and
David A. Bentley) for the plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Stephen C. Tosini); and Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce (Jonathan Zielinski
and Aaron Kleiner), of counsel, for the defendant.
Thompson Hine LLP (Matthew R. Nicely and Christopher M.
Rassi) for the intervenor-defendant.
Heller Ehrman LLP (William H. Barringer) for Minh Phu
Seafood Corporation, Minh Qui Seafood Co., Ltd. and Minh Phat
Seafood Co., Ltd., amici curiae.
AQUILINO, Senior Judge: The Ad Hoc Shrimp Trade
Action Committee, an association of U.S. producers and
Court No. 07-00380 Page 2
processors of warmwater shrimp, having successfully petitioned
the International Trade Administration, U.S. Department of
Commerce (“ITA”), for imposition of the antidumping-duty order
published at 70 Fed.Reg. 5,152 (Feb. 1, 2005), thereafter
requested a first administrative review thereof pursuant to 19
U.S.C. §1675, which resulted in ITA’s Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam: Final Results of
the First Antidumping Duty Administrative Review and First New
Shipper Review, 72 Fed.Reg. 52,052 (Sept. 12, 2007), that are
now at issue in this action brought in accordance with 19 U.S.C.
§1516a(a)(2)(A) and 28 U.S.C. §§ 1581(c) and 2631(c).1
1
The petitioner’s request for ITA review initially
implicated some 84 enterprises, only one of which, Vietnam Fish
One Co., Ltd., fully participated as a respondent in the
agency’s proceedings that resulted in that company’s assignment
of a zero dumping margin for the period July 16, 2004 to January
31, 2006. Margins ranging from 4.57 to 25.76 percent were
assigned for that period of review to 15 other firms. See 72
Fed.Reg. at 52,054, col. 2 and n. 9.
Vietnam Fish One Co. has not sought to intervene in this
action, but Grobest & I-Mei Industrial (Vietnam) Co., Ltd., one
of the many companies dropped from the ITA’s review, then
requested and was afforded agency review as a new shipper.
While it too was ultimately assigned a dumping margin of zero
[see id.], it has sought and obtained leave to intervene herein
as a party defendant.
Come now Minh Phu Seafood Corporation, Minh Qui Seafood
Co., Ltd. and Minh Phat Seafood Co., Ltd. alleging, among other
(footnote continued)
Court No. 07-00380 Page 3
I
The precise focus of plaintiff’s complaint, as
reflected in the preliminary injunction it applied for and had
entered, is the zero margin assigned to Vietnam Fish One Co.,
Ltd. It now moves for judgment on the underlying ITA record
pursuant to USCIT Rule 56.2.
A
As indicated, the country of origin of the merchandise
that is subject to the antidumping-duty order is the Socialist
Republic of Vietnam, which the ITA considers to be a “nonmarket
economy country”2 (“NME”) within the meaning of the Trade
Agreements Act of 1979, as amended, 19 U.S.C. §1677(18).
things, that they are large Vietnamese exporters of frozen
warmwater shrimp to the United States, that they were not
involved in the ITA administrative review sub judice herein but
that they have been mandatory respondents in the second and the
third such reviews. Cf. Certain Frozen Warmwater Shrimp From
the Socialist Republic of Vietnam: Final Results and Final
Partial Rescission of Antidumping Duty Administrative Review, 73
Fed.Reg. 52,273 (Sept. 9, 2008); Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam: Preliminary Results,
Preliminary Partial Rescission and Request for Revocation, In
Part, of the Third Administrative Review, 74 Fed.Reg. 10,009
(March 9, 2009). Whereupon they move in the absence of any
appearance herein by Vietnam Fish One Co. for leave to file a
brief as amici curiae, which motion can be, and it hereby is,
granted.
2
The statute defines this term, in general, to mean any
foreign country that the ITA determines does not operate on
(footnote continued)
Court No. 07-00380 Page 4
To determine whether subject merchandise is being, or
is likely to be, sold in the United States at less than fair
value, the agency must make “a fair comparison . . . between the
export price or constructed export price and normal value.” 19
U.S.C. §1677b(a). When that merchandise emanates from an NME,
however, the actual export price is often not a valid source of
comparison due to the nature of such a country. Whereupon the
ITA, in general, is to
determine the normal value of the subject merchandise
on the basis of the value of the factors of production
utilized in producing the merchandise and to which
shall be added an amount for general expenses and
profit plus the cost of containers, coverings, and
other expenses. . . . [T]he valuation of the factors
of production shall be based on the best available
information regarding the values of such factors in a
market economy country or countries considered to be
appropriate by [it].
19 U.S.C. §1677b(c)(1).
In this instance, the agency found
Bangladesh to be a reliable source for surrogate
values because Bangladesh is at a similar level of
economic development pursuant to 773(c)(4) of the Act,
is a significant producer of comparable merchandise,
and has publicly available and reliable data. . . .
Furthermore, we note that Bangladesh has been the
primary surrogate country in past segments and both
the Petitioner and Respondents submitted surrogate
values based on Bangladeshi data that are
market principles of cost or pricing structures, so that sales
of merchandise in such country do not reflect the fair value of
the merchandise. See 19 U.S.C. §1677(18)(A).
Court No. 07-00380 Page 5
contemporaneous to the [period of review], which gives
further credence to the use of Bangladesh as a
surrogate country.
72 Fed.Reg. at 10,695 (citation omitted). Furthermore, it
determined that data contained in a study of the
Bangladeshi shrimp industry published by the Network
of Aquaculture Centres in Asia-Pacific (“NACA”), an
intergovernmental organization affiliated with the
UN’s Food and Agriculture Organization, is a suitable
surrogate value for shrimp from the surrogate country,
namely, Bangladesh.
Id. at 10,697.
The petitioner cum plaintiff continues to attempt to
impeach that study, which is entitled Evaluation of the impact
of the Indian Ocean tsunami and U.S. anti-dumping duties on the
shrimp farming sector of South and South-East Asia: Case studies
in Vietnam, Indonesia and Bangladesh (Oct. 2006) and apparently
publicly available on NACA’s website. According to ITA’s Issues
and Decision Memorandum for the Final Results of the First
Antidumping Duty Administrative Review and First New Shipper
Review (Sept. 5, 2007)3, which is at the core of the agency’s
Final Results herein4, the petitioner argued, among other things,
that the NACA study is unreliable because it was based on
3
This document, which will be cited hereinafter as
“DecMemo”, is on the ITA record and publicly available on the
ITA’s website.
4
See 72 Fed.Reg. at 52,053, col. 2.
Court No. 07-00380 Page 6
voluntary questionnaire responses that were not audited, that
its coverage of the industry was limited, and that its data are
incomplete because they do not contain two of the shrimp count
sizes used in the margin calculation for Vietnam Fish One Co.,
Ltd. See DecMemo, p. 3. Now, the plaintiff pinpoints the
study’s alleged flaws as follows:
• The data obtained by the NACA Survey were based on
voluntary information obtained through questionnaires
from a limited number of Bangladeshi shrimp processors.
. . . In fact, the NACA Survey consists of just eight
Bangladeshi shrimp processors. . . .
• Further, the survey’s coverage of Bangladeshi shrimp
processors is scattershot -- Apex, one of the largest
shrimp processors in Bangladesh, was not even included in
the NACA Survey. . . .
• Moreover, the NACA data not only were not audited, they
are admittedly imprecise. In fact, the NACA Survey
concedes that “general price information” was collected
from Department of Fisheries officers “with the aim of
validating the general accuracy” of the survey. NACA
Survey at 56 (emphasis added).
• In addition, the NACA data are incomplete, as they do not
include two of the shrimp count sizes used in the margin
calculation, a flaw which required Commerce to fill in
these data “holes” with extrapolated prices. . . . In
contrast, the Apex prices cover all count sizes used in
Commerce’s margin calculation, and do not require any
extrapolation of missing information. . . .
Plaintiff’s Memorandum of Law, pp. 8-9 (citations omitted;
emphasis in original).
Court No. 07-00380 Page 7
B
Whereupon the plaintiff postulates the issues it
presents viz.:
a. Whether Commerce erred when it valued raw
shrimp based on the surrogate value from . . . the . . .
NACA Survey . . . rather than on publicly available,
audited, count-specific raw shrimp purchase prices
from the Bangladeshi shrimp processor Apex Foods Ltd.
. . . , which were on the record.
b. Whether Commerce erred in the calculation of
the surrogate financial ratios by excluding the
financial statements of the Bangladeshi shrimp
processor Bionic Seafood Exports Limited . . . because
Bionic failed to show a profit.
Id. at 1-2 (citation omitted).
Seemingly, counsel’s crafting of this action reduces
it to an anomaly, even a paradox. That is, courts always
contemplate ab initio the relief a party prays for. In the
matter at bar, if this court understands plaintiff’s position
correctly, all that it seeks before liquidation of any Vietnam
Fish One Co., Ltd. entries during the period of review is a
dumping margin for that company greater than zero. Its
memorandum of law and proposed order filed in conjunction with
its motion for judgment on the agency record request remand to
the ITA with “instructions” to correct defendant’s errors.
According to the foregoing issues presented, those “errors” boil
Court No. 07-00380 Page 8
down to agency disregard of data from two particular Bangladeshi
shrimp processors. The plaintiff would have this court order
the ITA to rely solely on information for Apex Foods Ltd. -- to
the exclusion of data for other such processors in the surrogate
state, either reflected in the NACA study or otherwise. And
even if, as the plaintiff argues, the Apex data are the “gold
standard”5, at least with regard to the seemingly-sole object of
its complaint, Vietnam Fish One Co., Ltd.6, there is no showing
what impact that standard would have (or could have had) on the
margins derived for the other 15 enterprises subject to the
ITA’s Final Results, supra. In other words, the plaintiff would
apparently allow those numbers to stand, albeit based upon the
NACA data and agency record it otherwise seeks, for one company,
to order the defendant to disregard.
C
As revealed in footnote 1, supra, the Final Results
herein are but the first from an ITA review of the underlying
antidumping-duty order, and, with the passage of time, other
5
Plaintiff’s Memorandum of Law, pp. 4, 8.
6
Experienced counsel claim this is a rare instance in an
NME proceeding where both the petitioner and a mandatory
respondent agree on best surrogate information on the record for
valuing the primary production input. Id. at 4.
Court No. 07-00380 Page 9
such reviews have been undertaken. Indeed, the second review
has been completed and the final results thereof published at 73
Fed.Reg. 52,273 (Sept. 9, 2008), and the agency has published
preliminary results for its third review, 74 Fed.Reg. 10,009
(March 9, 2009). Numerous parties have filed and/or joined in
complaints over the final results of the second review per CIT
Nos. 08-00301, -00325 and -00347, which matters have been
ordered consolidated and which are now on the Court calendar for
oral argument on September 16, 2009. While the plaintiff
herein, Ad Hoc Trade Action Committee, has been granted leave to
appear therein as an intervenor-defendant, this court notes that
it continued its complaint in the second review over the ITA’s
reliance on the NACA data. See, e.g., Issues and Decision
Memorandum for the Second Administrative Review, p. 7 (Sept. 2,
2008). Hence, it seems safe to assume that that issue will
entail multipartite litigation in the consolidated case in
contrast with its paradoxical lie herein.7
7
The court notes in passing that the ITA has continued to
attribute a zero margin of dumping to Vietnam One Fish Co., Ltd.
[see 73 Fed.Reg. at 52,276] but that it has, to date, denied
that company’s request for revocation of the antidumping-duty
order as against it on the grounds of three consecutive years of
no dumping. See 74 Fed.Reg. at 10,011, col. 3.
Court No. 07-00380 Page 10
II
In view of the foregoing, plaintiff’s motion for
judgment upon the agency record can be denied (without
prejudice) and its anomalous action dismissed.
So ordered.
Decided: New York, New York
August 12, 2009
/s/ Thomas J. Aquilino, Jr.
Senior Judge