Slip Op. 10–62
UNITED STATES COURT OF INTERNATIONAL TRADE
EAST SEA SEAFOODS LLC,
Plaintiff,
v.
UNITED STATES, Before: Gregory W. Carman, Judge
Defendant, Court No. 10‐00102
and
CATFISH FARMERS OF AMERICA,
Defendant‐Intervenor.
[Remand Results are set aside in part and sustained in part, and judgment is entered for
Defendant.]
Dated: May 27, 2010
Arent Fox LLP (John M. Gurley, Nancy Aileen Noonan, Diana Dimitriuc Quaia,
Matthew L. Kanna), for Plaintiff.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Franklin E.
White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Claudia Burke, Courtney S. McNamara); David W. Richardson,
of counsel, Office of the Chief Counsel for Import Administration, Department of
Commerce, for Defendant.
Akin Gump Strauss Hauer & Feld LLP (Valerie A. Slater, Jarrod Mark Goldfeder,
Nicole Marie DʹAvanzo, Natalya Daria Dobrowolsky, Jaehong David Park), for
Defendant‐Intervenor.
Court No. 10‐00102 Page 2
OPINION & ORDER
CARMAN, JUDGE: In this case, Plaintiff East Sea Seafoods LLC (“ESS LLC” or “Plaintiff”)
challenged the final results of the fifth administrative review of an antidumping duty
order on certain frozen fish fillets from Vietnam. Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Final Results of the Antidumping Duty Administrative
Review and New Shipper Reviews, 75 Fed. Reg. 12,728 (Mar. 17, 2010) (the “Final
Results”). In an opinion dated April 19, 2010, this Court affirmed the U.S. Department
of Commerce’s (“Commerce” or “Defendant”) determination that ESS LLC was not the
successor‐in‐interest to East Sea Seafoods JVC (“ESS JVC”).1 East Sea Seafoods LLC v.
United States, 34 CIT __, Slip Op. 10‐42 at 30‐33 (April 19, 2010) (“East Sea 1ʺ). The
Court also found that it was unlawful for Commerce to treat ESS LLC as if it was a part
of the Vietnam‐wide entity without first considering abundant record evidence
pertaining to Plaintiff’s independence from the Vietnamese government. Before the
Court are the Final Results of Redetermination (“Remand Results”) filed by Commerce
on April 27, 2010. For the reasons set forth below, the Remand Results are held unlawful
in part and affirmed in part. Because the legal error set aside by the Court does not
require correction through remand to the agency, judgment shall be entered for
Defendant.
1
For convenience, ESS LLC and ESS JVC are also occasionally referred to as “East
Sea entities.”
Court No. 10‐00102 Page 3
BACKGROUND
The background of this case, set out fully in East Sea 1, is summarized briefly
here for convenience. ESS JVC was named in the Notice of Initiation of the 5th
Administrative Review (“5th AR”) of an antidumping duty order on Certain Fish Fillets
from Vietnam because it had exported subject merchandise to the United States during
the period of review (“5th POR”). Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part, 73 Fed. Reg. 56,795, 56,796
(Sep. 30, 2008) (“Notice of Initiation”). Approximately six weeks prior to the end of the
5th POR, on June 17, 2008, ESS JVC changed its name to ESS LLC pursuant to a
requirement of Vietnamese law. The administrative review was not initiated as to ESS
LLC because Commerce received no request to review that entity, and ESS LLC was not
identified as the exporter on any entries of subject merchandise imported during the 5th
POR.2 Nevertheless, ESS LLC was permitted to participate extensively in the
administrative proceeding, and ultimately succeeded in obtaining a successor‐in‐
interest analysis from Commerce. Commerce found that ESS LLC was not the
successor‐in‐interest to ESS JVC as it had existed the last time it was reviewed, during
the 3rd administrative review. As a result, ESS LLC did not qualify for the
antidumping cash deposit rate previously assigned to ESS JVC, and was instead
2
Approximately 19 entries made during the 5th POR and after June 17, 2008 (the
date of the name change) identify ESS JVC as the exporter.
Court No. 10‐00102 Page 4
assigned the cash deposit rate of the Vietnam‐wide entity, of $2.11/kg. Additionally, in
the Final Results, Commerce determined that all entries made after the date of the name
change would be treated as entries of ESS LLC, and would be liquidated at $2.11/kg.
In East Sea 1, this Court affirmed the results of the successor‐in‐interest analysis,
but held unlawful the assignment of a cash deposit rate to ESS LLC equal to the
Vietnam‐wide entity rate. The Court found that for Commerce to presume that ESS
LLC was an exporter under the control of the Vietnamese government without first
considering record evidence to the contrary was not in accordance with law. On
remand, the Court required Commerce to consider the evidence submitted by ESS LLC
pertaining to its independence from the Vietnamese government, and to determine
whether ESS LLC had established de jure and de facto independence, entitling it to a
separate rate. The Court also required Commerce to reconsider its decision to liquidate
all entries that had been exported by ESS JVC after the date of the name change at the
rate assigned to ESS LLC. The Court has jurisdiction over this case pursuant to 28
U.S.C. 1581(c).
Court No. 10‐00102 Page 5
DISCUSSION
I. The Treatment of Entries Made after June 17, 2008 Identifying ESS JVC as the
Exporter
A. Remand Results
In East Sea 1, this Court found that “the decision of Commerce to order
liquidation of entries by ESS JVC at the rate assigned to ESS LLC for all entries after the
effective date of the name change” was unsupported by substantial evidence in the
record, and not in accordance with law. East Sea 1 at 45‐46. On remand, Commerce
changed its position and decided to liquidate all entries made between the June 17, 2008
name change and the end of the POR, that identified ESS JVC as the exporter (the “Post
Name Change Entries”) at the rate assigned to ESS JVC in this review: $0.02/kg. Remand
Results at 14. Although Commerce maintains its position that as of June 17, 2008, ESS
JVC ceased to exist, it appears to have accepted Plaintiff’s contention that “subject
merchandise exported by East Sea JVC up to June 17, 2008 would not enter the United
States for a number of weeks after exportation.” (Pl.’s Rule 56.2 Mot. at 20; see also
Remand Results at 14.) Commerce determined that the most reliable source for
determining which East Sea entity exported the Post Name Change Entries was the
import data provided by U.S. Customs and Border Protection (“CBP”), which clearly
shows “that all entries [made by an East Sea entity] during these last 45 days of the POR
were made by ESS JVC.” Remand Results at 14.
Court No. 10‐00102 Page 6
B. Parties’ Contentions
Although it now stands to receive significantly more favorable antidumping
duty treatment of the Post Name Change Entries, Plaintiff denies ever claiming that all
of these entries were entries of ESS JVC. (Plaintiff’s Comments on Defendant’s
Redetermination on Remand (“Pl.’s Comments”) at 9.) Instead, it offers the carefully
nuanced claim that it had only argued that “the product shipped from Vietnam by ESS
JVC before the name change might arrive in the U.S. several weeks after the name
change.” (Id.) On May 7, 2010, Plaintiff requested leave to file a reply to Defendant’s
Response. In its reply, Plaintiff suggests for the first time its “belie[f] that four
shipments from Vietnam with invoices dated after June 17, 2008 entered U.S. commerce
prior to July 31, 2008,” and argues that by Commerce’s “own reasoning . . . [these
entries] must be attributed to ESS LLC.” (Pl.’s Reply to Def.’s Comments (“Pl.’s Reply”)
at 2.) The four entries Plaintiff refers to apparently identify ESS JVC as the exporter.
Defendant takes the position that ESS LLC has conceded that it made no entries
during the period of review. (Def.’s Resp. to Pl.’s Comments (“Def.’s Resp.”) at 2, 5, 10.)
On May 12, 2010, Defendant requested leave to file a surreply to Plaintiff’s reply, in
large part to argue that ESS LLC should be “judicially estopped” from now claiming
that any Post Name Change Entries actually belong to ESS LLC. (Def.’s Surreply to Pl.’s
Reply (“Def.’s Surreply”) at 1‐4.)
Court No. 10‐00102 Page 7
C. Analysis
Commerce’s determination that the Post Name Change Entries should be
liquidated at the rate assigned to ESS JVC is supported by substantial evidence in the
record and otherwise in accordance with law, and is therefore sustained. Specifically,
Commerce’s reliance on the official CBP import data in determining which East Sea
entity exported the Post Name Change Entries is eminently reasonable. See id. This
decision was supported by ESS LLC’s assertion in its USCIT R. 56.2 Motion that exports
from ESS JVC immediately prior to the name change would take “a number of weeks”
to enter the country. Without any evidence in the record explicitly linking entries with
sales, it was reasonable for Commerce to conclude that the Post Name Change Entries
correctly identified ESS JVC as the exporter.
The Court finds no evidence in the record to support Plaintiff’s eleventh hour
claim that as many as four of the Post Name Change Entries identified the wrong
exporter, and disregards this argument as not probative here. The Court also notes the
abnormality and possible consequences stemming from Plaintiff’s claim that its
affiliated importer inaccurately identified the exporter on entries of subject
merchandise.
Court No. 10‐00102 Page 8
II. ESS LLC’s Entitlement to a Separate Rate Determination
A. Remand Results
In its Remand Results, Commerce determined that because ESS LLC had no
entries during the 5th POR, it is “not entitled to a review on any issues, including
separate rates.” Remand Results at 3‐5. Commerce states that it“is not required to
conduct administrative reviews and change cash deposit rates of companies which have
no entries during the period of review.” Id. at 3 (citing Allegheny Ludlum Corp., et. al.
v. United States, 346 F. 3d 1368 (Fed. Cir. 2003)). Commerce also disagrees with this
Court’s reliance on Transcom, Inc. v. United States, 182 F.3d 876 (Fed. Cir. 1999),
claiming that Transcom does not require Commerce to provide “any interested party
with the opportunity to rebut the presumption that they are not [sic] part of the non‐
market economy (‘NME’) government.” Id. at 4. Additionally, in Commerce’s view,
being required “to resolve issues in a review for companies with no entries” would
produce “an entirely new type of proceeding, a review without entries, and grant a new
type of respondent status in a review, a company with no entries which is entitled to
have a review.” Id. at 4.
B. Parties’ Contentions
Plaintiff asserts that Commerce’s concern that granting a separate rate test in this
case sets an “undesirable precedent” for the agency is “wholly without merit.” (Pl.’s
Court No. 10‐00102 Page 9
Comments at 23‐25.) Plaintiff is confident that a separate rates analysis depends on
“export activities, and not entries,” so it finds Commerce’s claim that it cannot perform
the separate rates analysis “disingenuous.” (Id. at 2.) Plaintiff also claims that given the
unusual circumstances under which it managed to obtain the successor‐in‐interest
analysis in this administrative review, “[i]t appears highly unlikely that a similar case
will present itself” to Commerce in the future. (Id. at 25.)
In response, Defendant asserts that “Commerce has never awarded a separate
rate to a company without any entries, let alone to a company that was found not to be
a successor in interest . . . and a company that did not ask to be reviewed.” (Def.’s Resp.
at 9.) Defendant claims that when a company “never requested a review” and “made
no entries,” Commerce is not “free to review” it. (Def.’s Resp. at 3.)
C. Analysis
In East Sea 1, the Court did not ask Commerce to decide whether ESS LLC was
entitled to a separate rate determination; the Court held that ESS LLC was so entitled.
The Court therefore ordered Commerce to perform that separate rate determination,
and to decide on the merits whether ESS LLC had rebutted the presumption of
government control. Consequently, Commerce’s conclusion that ESS LLC is not
entitled to a separate rate determination is not in accordance with law, and is set aside.
Court No. 10‐00102 Page 10
In the Remand Results, Commerce also evinces concern that the Court has
required it to treat ESS LLC as if ESS LLC was subject to the 5th AR, despite the fact that
ESS LLC had no entries during the 5th POR and was not named in the Notice of
Initiation. Commerce should be reassured that this is not so. Consequently, Allegheny
is not implicated in this case, as nothing in East Sea 1 required Commerce to conduct an
administrative review of a company without POR entries.3
What the remand order did require was for Commerce to finish the unusual job
it began when it chose to conduct a successor‐in‐interest analysis, during an
administrative review, of a company that was not subject to the administrative review.
As set out in East Sea 1, when conducting a successor‐in‐interest analysis, Commerce
determines whether or not to permit an alleged successor to qualify for the cash deposit
rate calculated for an alleged predecessor. If Commerce reaches a negative
successorship determination, the non‐succeeding entity receives some sort of default
rate—either an all‐others rate, or in the case of a nonmarket economy, the antidumping
rate of the government controlled country‐wide entity (here, the Vietnam‐wide entity
rate). In the nonmarket economy context, that single default rate has been calculated for
a theoretical country‐wide entity, which is presumed to include all exporters, unless an
3
The Court notes that nothing in Allegheny forbids Commerce from reviewing a
company with sales and exports but not entries during the POR; Allegheny validated
Commerce’s policy of limiting review to companies with entries in the POR. See
Allegheny, 346 F.3d at 1374.
Court No. 10‐00102 Page 11
exporter can prove that it is not under the control of the nonmarket economy
government. The Court of Appeals for the Federal Circuit (“Federal Circuit”) has both
validated the use of this presumption (in Sigma Corp. v. United States, 117 F.3d 1401,
1405 (Fed. Cir. 1997)), and emphasized that a party subject to the presumption has a
right to attempt to rebut it (in Transcom, 182 F.3d at 883). Commerce erred by
prohibiting ESS LLC from rebutting the presumption, thereby making the presumption
“irrefutable rather than rebuttable.” East Sea 1 at 41.
While Commerce’s understanding of the holding of Transcom is generally
consistent with the Court’s (compare Remand Results at 4, with East Sea 1 at 39),
Commerce does not appear to appreciate the CAFC’s expressed reasoning underlying
that holding. In Transcom, the CAFC forbade Commerce from subjecting certain
parties to the NME entity rate because those parties had not been properly notified that
this might happen through the notice of initiation. Transcom, 182 F.3d at 884. The
reason for the notice requirement, however, was not to idly ensure the inclusion of a
footnote in all future notices of initiation, but rather to ensure that the underlying right
of respondents in a nonmarket economy antidumping proceeding to rebut the
presumption of government control before being subjected to it would be
vindicated—by notice, in the particular facts of Transcom. See Transcom, 182 F.3d at
883 (“[A] party that is subject to the presumption has a right to attempt to rebut it.”). To
Court No. 10‐00102 Page 12
permit Commerce to apply the presumption of government control to ESS LLC without
considering rebuttal evidence in the administrative record would permit Commerce to
abrogate the right identified in Transcom and Sigma. Commerce’s redetermination on
remand that ESS LLC is not entitled to a separate rate determination is therefore set
aside as contrary to law.
III. ESS LLC’s De Jure and De Facto Independence From the Vietnamese
Government
A. Remand Results
Appropriately, notwithstanding its opinion that a separate rate determination
was not necessary, Commerce complied with this Court’s specific remand instructions
to consider the record evidence pertaining to ESS LLC’s de jure and de facto
independence from the Vietnamese government. After considering the submissions
from ESS LLC, Commerce determined that there was “sufficient evidence . . . to support
a finding of de jure absence of government control over [ESS LLC’s] export activities.”
Remand Results at 9. In regards to de facto control, however, Commerce found that ESS
LLC had not rebutted the presumption of government control because there was no
evidence in the record of any of ESS LLC’s “sales” or “trading activity.” Id. at 12‐13.
Essentially, Commerce found a massive deficiency in the evidence submitted by
ESS LLC in an attempt to demonstrate de facto independence: namely, that “there is no
evidence that ESS LLC exported merchandise to the United States during the POR.”
Court No. 10‐00102 Page 13
Remand Results at 10. Commerce reviewed Exhibit A16 to ESS LLC’s Section A
Questionnaire Response, and found it to “demonstrate that ESS LLC did not have any
sales into the United States during the POR.” Id. at 10. Commerce found that ESS LLC
had failed to provide “proper sales information (e.g., sales negotiation documents,
contracts, invoices, payment documentation, entry documents, etc.) . . . [needed] in
order to determine the absence of de facto Vietnamese government control.” Id. at 10‐11.
For these reasons, Commerce determined that ESS LLC had not rebutted the
presumption of government control, and therefore did not revise ESS LLC’s cash
deposit rate of $2.11/kg. Id. at 15.
B. Parties’ Contentions
Plaintiff insists that it had both export and sales activity during the POR. (Pl.’s
Comments at 12‐16.) Plaintiff cites to statements it made in its Section A Questionnaire
Response, filed by ESS LLC, that “ESS head office was involved in the exportation of
fish fillets,” and “[d]uring the POR, ESS purchased processed fillets from its affiliate
Atlantic Co., Ltd. for export to the U.S.” (Id. at 12‐13.) Plaintiff cites sales data
indicating that both before and after its name change on June 17, 2008, “East Sea” was
engaged in the purchase of subject merchandise from Atlantic Co., Ltd. (Id. at 13.)
Plaintiff asserts it is only logical to infer that ESS LLC continued to export this subject
merchandise to PSW. (Id.) Plaintiff claims that all activity occurring after June 17, 2008
Court No. 10‐00102 Page 14
is activity of ESS LLC, specifically pointing to Exhibit A16 of the Section A
Questionnaire response, which includes an entry summary dated June 18, 2008,4 and an
invoice between PSW and an unaffiliated customer dated June 24, 2008. (Id. at 13, 11.)
Defendant reiterates Commerce’s finding in the Remand Results that the record
contains no “evidence of East Sea LLC’s trading activity.” (Def.’s Resp. at 7.) Pointing
to what it sees as a gaping hole in ESS LLC’s evidence, Defendant insists “that it has
become clear that East Sea LLC made no shipments, had no entries, and made no sales
during the period of review.” (Id. at 8.) Defendant‐Intervenor reiterates many of the
points made by Defendant, but also claims that the invoices provided by Plaintiff in
exhibit A16 to its Section A Response are “irrelevant” to the question of ESS LLC’s de
facto independence of the Vietnamese government, because the invoices are for sales
between PSW and unaffiliated customers. (Resp. of Def.‐Interv., Catfish Farmers of
America, to Pl.’s Comments (“Def.‐Int.’s Resp”) at 12‐13.)
C. Analysis
The Court finds that Commerce’s determination that ESS LLC is not under de jure
control of the Vietnamese government is supported by substantial evidence on the
record, and is therefore sustained.
4
This entry summary identifies ESS JVC as the exporter of the subject
merchandise through both the manufacturer ID number in box 13, and the 10 digit
AD/CVD Case No.
Court No. 10‐00102 Page 15
In regards to de facto control, the Court finds that while Commerce has overstated
the deficiency in ESS LLC’s evidence capable of rebutting the presumption of de facto
control, it has nevertheless identified a genuine absence of information that is essential
to the agency’s analysis. For this reason, the agency’s determination that ESS LLC failed
to rebut the presumption of de facto government control is supported by substantial
evidence in the record, and is therefore sustained.
Upon considering the Remand Results and the arguments of the parties, and upon
closely inspecting the administrative record, the Court finds there is evidence in the
record of at least one sale during the POR that is rightly attributed to ESS LLC. This
sale is evidenced in Exhibit A16 to Plaintiff’s Section A Response by an invoice between
PSW and an unaffiliated customer dated June 24, 2008, and an undated sales contract
between PSW and this same customer pertaining to the same purchase order identified
in the invoice. Contrary to the assertions of Defendant‐Intervenor that information
about “the U.S. selling activities of a U.S. corporation is irrelevant” to the issue of ESS
LLC’s de facto independence from the Vietnamese government, it is highly relevant. In
fact, this is precisely the information sought by Commerce’s separate rate application,
which requires the applicant to provide legible photocopies of documents “for the first
sale by invoice date of subject merchandise to an unaffiliated customer in the United
States during the POR/POI.” Separate Rate Application, Office of AD/CVD Operations,
Court No. 10‐00102 Page 16
at 8 (emphasis in original). This invoice fulfills this requirement, and belies
Commerce’s repeated assertion in the Remand Results that ESS LLC had no sales during
the POR. See Remand Results at 10, 12.
The problem for ESS LLC is the dearth of evidence of a complete export
transaction. As explained in the Separate Rate Application, a party seeking a separate
rate must provide photocopies of “all of the following original documents” for a given
sale: (1) the CBP Form 7501 Entry Summary, (2) the bill of lading, (3) the commercial
invoice, (4) the packing list, and (5) documentation demonstrating receipt of payment.
Separate Rate Application at 8‐9. In addition to providing this evidence, the party
seeking a separate rate
must provide a narrative explanation of how the documents relate to one
another and what the specific links are among the documents. If volumes or
values do not exactly match from one document to the next, the applicant
must provide in this narrative a clear explanation of any apparent
discrepancies among the documents. The applicant must also provide and
explain additional documentation necessary to corroborate its explanation
in this regard. For example, if the invoice and payment amount do not
match, the applicant must explain the difference and provide documentary
support for this explanation.
Id. at 9. By requiring this information from separate rate applicants, Commerce ensures
that it has sufficient evidence to evaluate the “de facto standards,” i.e., to determine
whether the exporter “(1) sets its own export prices independent of the government and
other exporters; (2) retains the proceeds from its export sales and makes independent
Court No. 10‐00102 Page 17
decisions regarding the disposition of profits or financing of losses; [and] (3), has the
authority to negotiate and sign contracts and other agreements.” Remand Results at 10.
Plaintiff’s deficiency was not in failing to submit a Separate Rate Application per se, but
in failing to provide the agency with this information, which is necessary to establish de
facto independence from the government of Vietnam.
Plaintiff has pointed to evidence in the record that suggests ESS LLC continued to
export subject merchandise to the United States. For instance, Commerce found that
ESS JVC and ESS LLC shared the same base of unaffiliated customers, through their
affiliated importer PSW. Issues & Decision Memorandum, A‐522‐801, 5th
Administrative Review at 39 (Mar. 10, 2010), Admin. R. Pub. Doc. 185, available at
http://ia.ita.doc.gov/frn/summary/VIETNAM/2010‐5853‐1.pdf (last visited May 21,
2010). ESS LLC continued to purchase subject merchandise from Atlantic Co., Ltd. after
June 17, 2008. (Supplemental Separate Rate Certification at Exhibit SA‐1.) After June
17, 2008, PSW continued to sell subject merchandise. (Section A Questionnaire
Response at Exhibit A16.) ESS LLC now even asserts that as many as four entries at the
end of the 5th POR may have incorrectly identified ESS JVC as the exporter, when they
were actually exported by ESS LLC. (Pl.’s Reply at 2.) Even if ESS LLC exported
subject merchandise during the POR, though, it still must provide Commerce with
sufficient information from a single sale for export to the United States to permit
Court No. 10‐00102 Page 18
Commerce to determine whether the presumption of government control has been
rebutted. Clearly, Plaintiff has not done this. Accordingly, Commerce’s determination
that ESS LLC is not entitled to a separate rate is supported by substantial evidence in
the record and is in accordance with law.
CONCLUSION
For the reasons given above, upon consideration of the Remand Results,
Defendant’s Motion for Clarification, Plaintiff’s Comments, Defendant’s Response,
Defendant‐Intervenor’s Response, Plaintiff’s Reply, Defendant’s Surreply and all other
papers and proceedings in this case, the Court sets aside in part and affirms in part the
Remand Results. Furthermore, it is hereby
ORDERED that Plaintiff’s motion to file a reply is GRANTED, and it is further
ORDERED that Defendant’s motion to file a surreply is GRANTED, and it is
further
ORDERED that Defendant’s Motion for Clarification is GRANTED and the
injunction issued in this case on March 25, 2010 shall remain in effect according to its
own terms, pending a final and conclusive court decision in this litigation,
notwithstanding language in East Sea 1 to the contrary.
Court No. 10‐00102 Page 19
Judgment will be entered accordingly.
/s/ Gregory W. Carman
Gregory W. Carman, Judge
Dated: May 27, 2010
New York, NY