East Sea Seafoods LLC v. United States

Slip Op. 10–42

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.

[Plaintiff’s Motion for Judgment on the Agency Record is DENIED IN PART and GRANTED
IN PART; the Final Results of the fifth administrative review are REMANDED to Commerce;
Commerce is instructed to file remand results and issue new liquidation instructions to Customs
no later than April 27, 2010. The remaining component of Plaintiff’s Motion for a Preliminary
Injunction is denied as moot.]

Arent Fox LLP (John M. Gurley, Diana Dimitriuc-Quaia, Matthew L. Kanna, Nancy
Aileen Noonan), 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 (Courtney S. McNamara, Claudia Burke); 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, Jaehong David Park, Jarrod
Mark Goldfeder, Natalya Daria Dobrowolsky, Nicole Marie D'Avanzo), for Defendant-
Intervenor.

April 19, 2010
Court No. 10-00102 Page 2

OPINION & ORDER

CARMAN , JUDGE: Plaintiff East Sea Seafoods LLC (“ESS LLC” or “Plaintiff”) is an

importer of frozen fish fillets from the Socialist Republic of Vietnam subject to

antidumping duty order A-552-801 (Notice of Antidumping Duty Order: Certain

Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed. Reg. 47,909 (Aug. 12,

2003) (“AD Duty Order”)). (Doc. No. 6, Compl. ¶ 6.) ESS LLC contests the final results

of the fifth administrative review (“5th AR”) of the AD Duty Order. Certain Frozen

Fish Fillets from the Socialist Republic of Vietnam: Final Results of the Antidumping

Duty Administrative Review and New Shipper Review, 75 Fed. Reg. 12726 (Mar. 17,

2010) (the “Final Results”).

Plaintiff filed suit on March 19, 2010, concurrently filing an Application for a

Temporary Restraining Order (“TRO”) and a Motion for Preliminary Injunction (“PI”).

(Doc. No. 8.) The Court denied the TRO application the same day it was filed, and

scheduled a hearing on the PI motion for March 25, 2010 (“PI Hearing”). (Doc. No. 15.)

At the PI Hearing, the parties agreed that Plaintiff’s motion for preliminary

injunction was severable into two components. Defendant and Defendant-Intervenor1

consented to the first component, an injunction prohibiting the liquidation of ESS LLC’s

1
Catfish Farmers of America (“CFA”), a participant in the initial antidumping
investigation and each subsequent administrative review, whose consent motion to
intervene was granted by order entered on March 24, 2010. (Doc. No. 24.)
Court No. 10-00102 Page 3

and East Sea Seafoods Joint Venture Company’s [ESS JVC] subject entries during the

pendency of this action, including all appeals, and the Court granted that component of

the motion by an order entered on March 25, 2010. (Doc. No. 30.) The second

component of Plaintiff’s motion for preliminary injunction requested that United States

Customs and Border Protection (“CBP”) be ordered “to refrain from collecting

antidumping duty cash deposits at the Vietnam-wide entity rate of $2.11 per kilogram

on imports” of Plaintiff’s product, “and instead collect a cash deposit on such imports at

the antidumping duty rate of $0.02 per kilogram, determined for [ESS JVC] in this

proceeding.” (Doc. No. 16 (“Pl.’s PI Mem.”) at 1-2.) ESS LLC claimed a right to this

relief on the grounds that Commerce required ESS LLC to pay cash deposits at the

Vietnam-wide entity rate, rather than at ESS JVC’s rate, after wrongly determining that

Plaintiff was not the successor-in-interest to ESS JVC. (Pl.’s PI Mem. at 6-7.) Defendant

and Defendant-Intervenor opposed this component of Plaintiff’s PI motion. (Doc. No.

29 (“Def.’s PI Opp.”).)2

The Court took the second component of Plaintiff’s PI Motion under advisement

and held its decision in abeyance. Meanwhile, in light of ESS LLC’s claim of imminent

irreparable harm, the Court entered a scheduling order on March 26, 2010 (Doc. No. 33),

2
Defendant-Intervenor’s opposition was presented orally at the PI Hearing.
(Doc. No. 36, Confidential Transcript of PI Hearing.) (As Business Proprietary
Information was presented at the hearing, the transcript is confidential.)
Court No. 10-00102 Page 4

and an amended scheduling order on March 29, 2010 (Doc. No. 35), in order to directly

reach the merits of the action via an expedited USCIT R. 56.2 Motion for Judgment on

the Agency Record. Pursuant to those orders, the United States timely filed an index of

the administrative record (Doc. No. 37) and Plaintiff filed its R. 56.2 Motion and

accompanying brief (Doc. No. 39 (“Pl’s 56.2 Mem.”)) on April 1, 2010. On April 7, 2010,

Commerce filed the official administrative record with the Court (Doc. No. 45) and

Defendant and Defendant-Intervenor filed opposition briefs (Doc. Nos. 47 (“Def.’s 56.2

Opp.”) and 48 (“Def.-Int.’s 56.2 Opp.”), respectively). On April 9, 2010, the Court

granted Plaintiff leave to file a reply (Doc. No. 51 (“Pl.’s 56.2 Reply”), and Defendant

leave to file a sur-reply (Doc. No. 52 (“Def.’s 56.2 Sur-Reply”)).

The Court has considered the administrative record, the positions expressed by

the parties, and all relevant provisions of law. The Court affirms the decision of

Commerce that ESS LLC is not a successor-in-interest to ESS JVC because that

determination was based upon substantial evidence and made in accordance with law.

Plaintiff’s 56.2 motion is therefore denied as to the successor-in-interest issue.

The Court, however, finds unlawful Commerce’s decision to assign ESS LLC the

Vietnam-wide entity rate without first considering evidence on the record that

specifically addresses the extent to which ESS LLC is de facto and de jure independent

from the control of the government of Vietnam. The Court also finds that the decision
Court No. 10-00102 Page 5

of Commerce to order liquidation of entries by ESS JVC at the rate assigned to ESS LLC

for all entries made after the effective date of the name change is not supported by

substantial evidence in the record or otherwise in accordance with law.

The Court therefore remands this case to Commerce. On remand, Commerce

must consider all of the evidence in the administrative record pertaining to ESS LLC’s de

jure and de facto independence from the Vietnamese government and make a finding as

to whether ESS LLC has rebutted the presumption of government control. Upon a

finding that ESS LLC is independent of the control of the Vietnamese government,

Commerce must assign a separate cash deposit rate to ESS LLC that is supported by

substantial evidence and is otherwise in accordance with law, and shall immediately

issue liquidation instructions to CBP adjusting the cash deposit rate for ESS LLC

accordingly. Any finding by Commerce that ESS LLC is not independent of the control

of the Vietnamese government must explain why the presumption has not been

rebutted, and why the evidence found sufficient in the Preliminary Results to establish

ESS JVC’s independence from the Vietnamese government is insufficient to establish the

same for ESS LLC.

Commerce must also provide a reasoned explanation, supported by evidence in

the record, for why entries shipped by ESS JVC but entered after the effective date of

the name change should be treated as entries made by ESS LLC. If Commerce
Court No. 10-00102 Page 6

determines on remand that all entries shipped by ESS JVC should be given the rate

assigned to ESS JVC of $0.02 per kilogram, it shall amend the liquidation instructions

accordingly.

The results of Commerce’s remand determination shall be filed with the Court no

later than April 27, 2010.

As the Court has ruled on the merits of Plaintiff’s claim, the remaining

component of Plaintiff’s Motion for Preliminary Injunction is denied as moot.

BACKGROUND

I. Antidumping Duty Order

The AD Duty Order at issue in this case established a Vietnam-wide entity rate of

63.88%. See 68 Fed. Reg. at 47,910. The 63.88% dumping margin was based on

Commerce’s findings that Vietnam was a non-market economy (“NME”) and the

application of adverse facts available “consistent with . . . previous cases in which the

respondent is considered uncooperative.” Notice of Final Antidumping Duty

Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances:

Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed. Reg. 37,116,

37,119-20 (June 23, 2003). Neither ESS JVC nor ESS LLC were parties to the

investigation. See AD Duty Order. ESS JVC first began exporting subject merchandise

during the period of review (“POR”) covered by the third annual review of the AD
Court No. 10-00102 Page 7

Duty Order, at which time Commerce granted ESS JVC’s separate rate application and

calculated ESS JVC’s individual dumping margin and cash deposit rate as 0.0%. See

Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of

Antidumping Duty Administrative Review and Partial Rescission, 73 Fed. Reg. 15,479

(Mar. 24, 2008). The fourth annual review was rescinded as to ESS JVC because it made

no entries of the subject merchandise during that POR. See Frozen Fish Fillets from

Vietnam: Notice of Extension of Time Limit for Preliminary Results of Antidumping

Duty Administrative Review and Partial Rescission of Administrative Review, 73 Fed.

Reg. 11,391 (Mar. 3, 2008).

II. Fifth Administrative Review

At the heart of this case is a great deal of confusion about which East Sea

Seafoods company (ESS JVC or ESS LLC) was filing documents with the agency, at

what time, and on whose behalf. This portion of the background describes all the

relevant filings of ESS JVC and ESS LLC in the 5th AR, with particular attention to those

details.

A. Notices of Opportunity to Request and Initiation

On August 1, 2008, Commerce published a notice of the opportunity to request a

fifth administrative review of AD Duty Order for the POR covering August 1, 2007

through July 31, 2008. Antidumping or Countervailing Duty Order, Finding, or
Court No. 10-00102 Page 8

Suspended Investigation; Opportunity to Request Administrative Review, 73 Fed. Reg.

44,966 (Aug. 1, 2008) (“5th AR Request Notice”). (PR3 1.) Commerce received seven

letters requesting administrative review (PR 2-8), including one submitted on August

28, 2008 by counsel for Plaintiff in the current action (PR 3), which requested

administrative review “on behalf of East Sea Seafoods Joint Venture Co., Ltd.” The

August 28, 2008 letter made no mention of or reference to ESS LLC. (PR 3.)

On September 30, 2008, Commerce published a notice of the initiation of the 5th

AR of the AD Duty Order. 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”). (PR 9, Pl.’s Public 56.2 App.4 Tab 4.) Under the

heading “Socialist Republic of Vietnam: Frozen Fish Fillets, A-552-801,” the initiation

notice lists 20 companies, including “East Sea Seafoods Joint Venture Co., Ltd.” Id. The

Notice of Initiation contains no reference to ESS LLC. Id. A footnote to the heading for

Vietnamese frozen fish fillets states:

If one of the above named companies does not qualify for a
separate rate, all other exporters of frozen fish fillets from
the Socialist Republic of Vietnam who have not qualified for

3
“PR” refers to the public version of the official administrative record; “CR”
refers to the confidential version.
4
The public and confidential appendices accompanying Plaintiff’s 56.2 Motion
contain the same documents in the same tabs (varying only as to the redaction of
business proprietary information) and are collectively referred to as “Pl.’s 56.2 App.”
Court No. 10-00102 Page 9

a separate rate are deemed to be covered by this review as
part of the single Vietnam entity of which the named
exporters are a part.

Id. at 56,797 n.1.

B. Respondent Selection

On October 17, 2008, counsel for Plaintiff in the current action submitted a

respondent selection comment letter to Commerce “on behalf of East Sea Seafoods Joint

Venture Co., Ltd. and Piazza’s Seafood World LLC (‘collectively [sic] ‘East Sea’),

interested parties” in the 5th AR, stating that “as the Department is aware, East Sea

sources its product from one of the largest, if not the largest, pangasius processors in the

world” and that “[a]s a mandatory respondent, East Sea would be providing the

Department with factors of production based on one of the largest production datasets

[sic] for pangasius production that is available.” (PR 22 at 1-3, CR 2 at 1-3; Pl.’s 56.2

App. Tab 5.)

ESS JVC requested, in the alternative, that if it was not chosen as a mandatory

respondent, it be permitted to participate as a voluntary respondent. (PR 22 at 3, CR 2

at 3.) The letter did not mention ESS LLC; the accompanying certification by Jennifer

Champagne identified her as “Vice-President of East Sea Seafoods Joint Venture Co.,

Ltd.” and Plaintiff’s attorneys signed the letter as “[c]ounsel to East Sea Seafoods Joint

Venture Co., Ltd.” (PR 22 at 4-5, CR 2 at 4-5.) CFA also submitted a respondent-
Court No. 10-00102 Page 10

selection comment letter to Commerce on October 20, 2008, urging that ESS JVC be

selected as a mandatory respondent. (PR 25.) CFA made no mention of ESS LLC. (Id.)

On October 29, 2008, Commerce issued its respondent selection memorandum.

(PR 30, CR 7; Pl.’s 56.2 App. Tab 8 (“Respondent Selection Memo”).) Based upon CBP

data on entries of subject merchandise during the POR (see CR 1, CR 4), Commerce

chose to limit the respondents to the two largest exporters of subject imports, QVD and

Vinh Hoan.5 (Id.) ESS JVC was not chosen as a mandatory respondent, and there is no

mention of ESS LLC in the Respondent Selection Memo. (Id.)

5
Commerce limited the mandatory respondents to QVD and Vinh Hoan
pursuant to authority purportedly given by Section 777A of the Tariff Act of 1930.
(Respondent Selection Memo at 2-5.) Section 777A of the Tariff Act of 1930, as
amended, allows Commerce to limit its review to exporters “accounting for the largest
volume of the subject merchandise from the exporting country that can reasonably be
examined” only where “it is not practicable to make individual weighted average
dumping margin determinations [for each known exporter] because of the large
number of exporters” involved in the review. 19 U.S.C. § 1677f-1(c)(2) (2006) (emphasis
added).
On at least two occasions, The Court of International Trade has held illegal
Commerce’s examination in an administrative review of only the two largest exporters,
holding that circumstances similar to those present here did not meet the statutory
prerequisite of a “large number of exporters.” See Carpenter Tech. Corp. v. United
States, 33 CIT ___, 662 F. Supp. 2d 1337, 1341-44 (2009) (holding that agency violated 19
U.S.C. § 1677f-1(c)(2) when failing to consider whether number of exporters at issue was
“large” before determining, based on its workload, that it would only examine two out
of eight respondents); Zhejiang Native Produce & Animal By-Products Import & Export
Corp. v. United States, 33 CIT ___, 637 F. Supp. 2d 1260, 1263-65 (2009) (holding, in a
case involving four respondents, that “in assessing whether the number of exporters” is
“large,” Commerce “may not rely upon its workload caused by other antidumping
proceedings” lest it “rewrite the statute based on its staffing issues.”). This issue is not
implicated here, as Plaintiff has not challenged Commerce’s selection of respondents.
Court No. 10-00102 Page 11

C. ESS LLC Separate Rate Certification

The first time ESS LLC is mentioned in the administrative record is in a filing

consisting of a letter and accompanying Separate Rate Certification form, filed on

October 31, 2008 (two days after the issuance of Commerce’s Respondent Selection

Memo). (PR 34, CR 8; Pl.’s 56.2 App. Tab 6.) The letter states that it is being “filed on

behalf of East Sea Seafoods Limited Liability Company” by Plaintiff’s attorneys, who list

themselves as “[c]ounsel to East Sea Seafoods Limited Liability Company.” (Id. at 1, 4.)

ESS LLC attached a completed Separate Rate Certification form (“Separate Rate

Certification”), which states in its heading that it is intended for “firms previously

awarded separate rate status,” and that “[f]irms that do not currently hold a separate

rate may not use this Certification and must instead submit an Application for separate

rate status” available on the Department’s website. (Separate Rate Certification at 1

(emphasis in original).) The requester is listed as “East Sea Seafoods Limited Liability

Company” (id.) and the applicant’s name is given as “East Sea Seafoods Limited

Liability Company (‘East Sea Seafoods’)” (id. at 3). ESS LLC filled out the section of the

form headed “EXPORT CERTIFICATIONS (check any that apply)” as follows:

7. I certify that during the POR, the firm conducted
business under the following (please include a list of
all trade names):

: the same trade names as identified in the
segment of investigation or review in which
Court No. 10-00102 Page 12

the firm was granted a separate rate (“previous
Granting Period”).
9 the same trade names as identified in the
previous Granting Period, as well as new trade
names.
9 new trade names.

8. : I certify the firm possesses an official
government business license/registration
documents [sic] for each trade name listed in
response to question 7, above, valid during the
POR. (list [sic] each trade name, the
corresponding document and its expiration
date) .

9. : I certify the firm exported or sold subject
merchandise to the United States during the
POR.

(Separate Rate Certification at 4-5. (explanatory footnotes omitted).) In the section of

the form certifying absence of de jure control, ESS LLC checked off all of the boxes

certifying to facts establishing a lack of government control, except for the box

indicating that ownership remained the same during the POR; for that box, ESS LLC

provided a written explanation of the sale of a minority ownership interest during the

POR. (Id. at 5.) In the section of the form certifying absence of de facto control, ESS LLC

checked off all of the boxes certifying to facts establishing a lack of government control.

(Id. at 5-6.) In the sales and affiliations section of the form, ESS LLC checked off the box

certifying that “the firm made at least one export or sale to the United States during the
Court No. 10-00102 Page 13

POR” to “affiliated parties only.” (Id. at 6.) In the section for additional documentation,

ESS LLC stated:

During the POR, based on a law affecting many companies,
the Vietnamese government required East Sea Seafoods to
change its name from “East Sea Seafoods Joint Venture Co.,
Ltd.” to “East Sea Seafoods Limited Liability Company”.
[sic] This change had no affect [sic] on East Sea Seafoods
operations during the POR.

(Id. at 7.) Jennifer Champagne, “Vice President, currently employed by East Sea

Seafood [sic],” signed certifications as to the accuracy of the responses, the applicability

of the previously-granted separate rate, and the willingness of ESS LLC to cooperate

with future document requests from Commerce. (Id., Ex. 1.) The record contains no

indication that Commerce rejected ESS LLC’s Separate Rate Certification of October 31,

2008 from the official administrative record.6

D. ESS LLC Section A Questionnaire Response

On November 25, 2008, ESS LLC, on its own behalf, submitted “as a voluntary

respondent” a response to the Department’s Section A Questionnaire. (PR 41, CR 10

(“Section A Response”); excerpts at Pl.’s 56.2 App. Tab 3.) Regarding the quantity and

value of its sales, ESS LLC attached a quantity and value chart to the response. (Id., Ex.

6
Commerce did, however, refer to the October 31, 2008 Separate Rate filing as
“no longer valid” in the preliminary results of the 5th AR. Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Notice of Preliminary Results of New Shipper
Reviews and Fifth Antidumping Duty Administrative Review, 74 Fed. Reg. 45,805,
45,807 n.5 (Sept. 4, 2008) (“Preliminary Results”).
Court No. 10-00102 Page 14

A-1.) That chart does not, however, distinguish between ESS LLC and ESS JVC sales.

(Id.) ESS LLC stated that “[a]ll reported sales are to the first unaffiliated customer.” (Id.

at 1.) In the instructions for question 2, the Department indicated that “exporters

requesting a separate rate [from the NME] must respond to the following questions in

order for the Department to consider fully the issue of separate rates.” (Id. at 2.)

ESS LLC answered all parts of question 2, providing the following information:

(a) the identity of the minority owner of the company and information regarding the

transfer of that minority share on October 1, 2007 (id. at 2, Ex. A-2); (b) the membership

of the Management Director Board and Director Board (id. at 2-3, Ex. A-3); (c) the

ownership makeup of the companies with ownership interests in ESS LLC (id. at 3, Ex.

A-3); ESS LLC’s relationship with other producers of the subject merchandise (id. at 3);

the memberships of ESS LLC and its owners and affiliates in other entities, business

groups, or industry groups during the POR (id. at 3-4); that the owners of ESS LLC did

not own or control other exporters of subject merchandise (id. at 4); that ESS LLC was

not owned or controlled by a local or provincial government (id.); Vietnamese statutes

indicating ESS LLC’s legal ability to conduct business outside of government control (id.

at 4-5, Exs. A-4 through A-7); and copies of ESS LLC’s Vietnamese business licenses (id.

at 5-6, Exs. A-8 through A-14.) ESS LLC explained, in providing its business licenses,

that a Vietnamese statute (provided at Ex. A-11) required “the re-registration of foreign
Court No. 10-00102 Page 15

owned companies,” and that ESS JVC “had to comply with these new laws and this

required the new name of the company to become East Sea Seafoods Limited Liability

Company.” (Id. at 5). ESS LLC asserted that “[t]his change had no affect [sic] on the

operations of East Sea Seafoods,” as indicated by investment certificates attached as Exs.

A-12 through A-14, which demonstrated that ESS JVC and ESS LLC “are the same

company.” (Id. at 5-6.) ESS LLC pointed out that ESS LLC “retained its tax

identification number, all assets and liabilities, and all the legal rights, privileges, and

obligations” under Vietnamese law. (Id. at 6.) ESS LLC indicated that “the name

change and issuance of a new investment certificate was done on June 17, 2008” in order

to comply with statutory obligations. (Id. at 7.) ESS LLC provided other detailed

information in response to question 2, detailing ESS LLC’s internal ownership, decision-

making process, staffing, financing, profit distribution, etc., with no responses

indicating control by the Vietnamese government. (Id. at 7-14.) ESS LLC also provided

complete answers to the remaining questions, applicable to companies whether or not

seeking a separate rate. (Id. at 15-26.) Those answers provided, inter alia, detailed

information regarding ESS LLC’s corporate structure, affiliations, facilities, legal

structure, ownership, history, sales process, financial and accounting practices, and

merchandise. (Id.) Regarding the date of sale for sales to the United States, ESS LLC

indicated that the “date of sale is the invoice date, as that is the date on which the final
Court No. 10-00102 Page 16

terms of sale are ultimately established, including final prices and quantities.” (Id. at

18.) These sales were all made to the first unaffiliated United States customer “by the

sales staff of Piazza’s Seafood World working closely with the president and vice-

president of East Sea Seafoods.” (Id. at 19.) Sales documents that ESS LLC submitted

with the Section A Response include a single sales invoice bearing a date after June 17,

2008, the date on which the change in name from ESS JVC to ESS LLC went into effect.

(CR 10, Section A Response, Ex. A-16 at 2.)

On December 19, 2008, ESS LLC also submitted, “on behalf of East Sea Seafoods

Limited Liability Company . . . as a voluntary respondent,” copies of financial

statements for itself and its affiliates to accompany the Section A Response. (PR 49, CR

13.) The statements contain, among other things, financial data from the beginning of

2008 through the end of September 2008, covering the periods before and after the name

change from ESS JVC to ESS LLC on June 17, 2008. (Id., Ex. 1.)

The record contains no indication that Commerce rejected ESS LLC’s Section A

Response or financial statements.

E. ESS LLC Amended Separate Rate Certification

On March 23, 2009, ESS LLC submitted a letter and attached an amended

Separate Rate Certification form. (PR 80; Pl.’s 56.2 App. Tab 7 (“Amended Separate

Rate Certification”).) The letter pointed out that the Separate Rate Certification filed by
Court No. 10-00102 Page 17

ESS LLC on October 31, 2008 had noted “that the name of East Sea Seafoods had

slightly changed from East Sea Seafoods Joint Venture Co. Ltd. to East Sea Seafoods

Limited Liability Company.” (Id. at 1.) ESS LLC attached the Amended Separate Rate

Certification form, listing the separate rate requester and applicant as “East Sea

Seafoods Joint Venture Co., Ltd., now known as East Sea Seafoods Limited Liability

Company.” (Id., Attach. 1 at 1, 3.) The record contains no indication that Commerce

rejected ESS LLC’s Amended Separate Rates Certification.

F. Preliminary Results

On September 4, 2009, Commerce published the preliminary results of the 5th

AR. (Preliminary Results; see also Pl.’s 56.2 App. Tab 9.) The Preliminary Results list

seven companies that “remain in this administrative review,” including “East Sea

Seafoods Joint Venture Co., Ltd. (‘East Sea’).” Id. at 45,806. ESS LLC is not mentioned

in the Preliminary Results. See generally id.

Regarding the separate rate status, the Preliminary Results noted ESS JVC as one

of the companies that submitted a separate rate certification. Id. at 45,807. In a

footnote, Commerce stated “East Sea [defined earlier in the Preliminary Results as ESS

JVC] addressed the separate rates section of the Department’s questionnaire in its

November 25, 2008, submission7 as the certification it had submitted was no longer

7
This refers to the Section A Response, which was explicitly filed by and on
behalf of ESS LLC, as set forth supra at § II.D.
Court No. 10-00102 Page 18

valid given that there had been a change in ownership and in name.” Id., n.5.

Commerce relied upon the submission of ESS LLC in finding an absence of

governmental control over ESS JVC. Commerce specifically found that ESS LLC’s

Section A Response “support[ed] a finding of a de jure absence of government control”

over ESS JVC based on ‘[a]n absence of restrictive stipulations associated with [ESS

JVC’s] business license” and legal authority “decentralizing control over” ESS JVC. Id.

Again based on ESS LLC’s Section A Response, Commerce also found an absence of de

facto government control over ESS JVC, making specific findings that ESS JVC “sets its

own export prices independent of the government”; “retains the proceeds from its

sales” and controls its profits or losses; had management “with the authority to

negotiate and bind the company in an agreement”; “the general managers are selected

by the board of directors or company employees” and “appoint the . . . manager of each

department”; and that “there is no restriction on [ESS JVC’s] use of export revenues.”

Id. Consequently, Commerce preliminarily found that ESS JVC had “established prima

facie that [it] qualif[ies] for [a] separate rate[.]” Id.

As to the separate rate applicable to ESS JVC, Commerce noted that it would

ordinarily apply a weighted-average of the margins assigned to the examined

companies (excepting zero, de minimis, and adverse facts based margins); however,

because both examined companies received zero margins, Commerce would instead use
Court No. 10-00102 Page 19

the “reasonable method” of “us[ing] the most recent rate calculated for the non-selected

company in question unless we calculated in a more recent review a rate for any

company that was not zero, de minimis or based entirely on facts available.” Id.

Commerce therefore applied a margin of $0.02 per kilogram to ESS JVC, “as it is the

assigned rate from the most recently completed segment of the proceeding that is above

de minimis and not based on adverse facts available.” Id. A margin of $2.11 per

kilogram was assigned as the Vietnam-wide entity rate, and was also set as the cash

deposit rate for all companies “which have not been found to be entitled to a separate

rate.” Id. at 45,807-08, 45,811.

G. Separate Rate and Successor-in-Interest Issues

1. Case Brief and Rebuttal

ESS LLC submitted a case brief responding to the Preliminary Results on October

30, 2009, in which ESS LLC stated that “[i]n the Preliminary Results . . . [Commerce]

correctly found that ESS LLC was eligible for separate rate status” due to an absence of

de jure and de facto government control. (PR 159, CR 45 (“Case Brief”) at 1.) ESS LLC

noted that Commerce had “failed to specifically address whether the Department will

treat ESS LLC is [sic] the successor-in-interest to ESS JVC.” (Id. at 2.) ESS LLC asserted

that Commerce should find ESS LLC to be ESS JVC’s successor-in-interest based on the

evidence in the record showing that ESS LLC kept the same supplier, customer base,
Court No. 10-00102 Page 20

operational management, tax identification number, assets, liabilities, legal rights,

privileges, and obligations as ESS JVC, with the only differences consisting of “a small

change in ownership interest and the legally required minor change in the company’s

name.” (Id. at 2-4.)

In a rebuttal brief submitted on November 10, 2009, CFA argued that Commerce

should deny ESS LLC’s successorship claim and associated claim of entitlement to ESS

JVC’s separate rate because ESS LLC did not pursue those claims via a changed-

circumstances review. (PR 168 (“CFA Rebuttal Brief”) at 38.) CFA urged Commerce to

collect cash deposits on future entries by ESS LLC at the Vietnam-wide entity rate,

absent a changed-circumstances review, and, furthermore, to assess duties on POR

entries by ESS LLC at the Vietnam-wide entity rate as “this administrative review

covers only ESS JVC, and does not cover ESS LLC.” (Id. at 39.) CFA also claimed that

“although this administrative review covers only ESS JVC, the company filed its

separate-rate certification and questionnaire responses on behalf of ESS LLC” and, for

that reason, Commerce would have grounds for finding that ESS JVC did not

demonstrate entitlement to a separate rate for cash deposit and assessment purposes.

(Id. n.110.)

Counsel for ESS LLC, by letter dated December 3, 2009, requested a meeting with

Commerce officials to discuss unspecified issues raised in the case briefs and rebuttals.
Court No. 10-00102 Page 21

(PR 170.) No response from Commerce or notation of the occurrence of such a meeting

appears in the administrative record.

2. Request for Successor-in-Interest Information and Responses

On January 11, 2010, Commerce sent ESS LLC a letter stating that the 5th AR had

been initiated as to ESS JVC, but that due to the name change noted ”in your separate

rate certification,”8 Commerce requested that ESS LLC submit comments and

supporting documents addressing its management, production facilities, supplier

relationships, and customer base both before and after the name change and ownership

change “[i]n order for the Department to ensure that the operations of [ESS LLC] did

not change significantly from what they had been prior to the change in name and

ownership.” (PR 173.) ESS LLC responded to Commerce’s request on January 20, 2010

(PR 175, CR 47; Pl.’s 56.2 App. Tab 11.) In its response, ESS LLC indicated that, when

the Vietnamese law requiring the name change was put in place in September 2006, ESS

JVC was a joint venture between “its U.S. investor,” Piazza’s Seafood World, LLC

(“PSW”), and Vietnamese company Toan Nhat Co., Ltd (“Toan Nhat”). (Id. at 1.) A

change in minority ownership of ESS JVC occurred on October 8, 2007 when Toan Nhat

sold its interest to another Vietnamese company, Atlantic Co., Ltd. (“Atlantic,” an

affiliate of Nam Viet Corp. by virtue of common ownership, management, and the

8
The letter did not specify which separate rate certification.
Court No. 10-00102 Page 22

marital relationship of the majority shareholders of the two companies.) (Id. at 3-4.)

ESS JVC was governed by two boards: a four-member Management Director Board,

and a two-member Director Board. (Id., Ex. SA-3–SA-4.) When Atlantic acquired its

minority ownership share in ESS JVC, the owner of Atlantic replaced one of the four

members of the Management Director Board of ESS JVC. (Id.) Both members of the

Director Board were also replaced at that time, one by the owner of Atlantic.9 (Id. at 4-5,

Ex. SA-3–SA-4.) Neither ESS JVC nor ESS LLC owned production facilities before or

after the ownership and name changes (id. at 2, 5), and both ESS JVC and ESS LLC

purchased subject merchandise for export from supplier Atlantic during the POR (id. at

3, 5). PSW was the sole customer of both ESS JVC and ESS LLC during the POR, and

PSW then made the first sales to unaffiliated United States customers; there was no

change in PSW’s customer base during the POR. (Id. at 3, 5, Ex. SA-2.)

CFA responded to the Supplemental Separate Rate Certification on February 1,

2010, reiterating the arguments made in the November 10, 2009 CFA Rebuttal Brief. (PR

176 at 2-4.) CFA argued, alternatively, that the change in minority ownership was

significant because it resulted in a new closeness in relations with Atlantic’s affiliate

Nam Viet. (Id. at 6.) CFA also contended that ESS LLC’s supplier base had changed

9
One of the members of the Director Board had served concurrently on the
Management Director Board prior to the ownership change, and retained that position
after losing the spot on the Director Board. (Pl.’s 56.2 App. Tab 11 at 4-5, Exs. SA-3–SA-
4.)
Court No. 10-00102 Page 23

significantly from that of ESS JVC, which was considered a producer of subject

merchandise in the third administrative review (the last review conducted as to ESS

JVC) due to a tolling relationship with its processor. (Id. at 7-8.) CFA also argued that

the majority of ESS JVC’s management structure changed after the shift of minority

ownership, making ESS LLC’s successorship claim questionable. (Id. at 8-9.) Finally,

CFA argued that, if Commerce upheld ESS LLC’s successorship claim, ESS LLC should

only succeed to ESS JVC’s cash deposit rate for exports of which it was “both the

producer and the exporter,” and should otherwise be subject to cash deposit at the

Vietnam-wide entity rate. (Id. at 10.)

On February 16, 2010, ESS LLC responded, arguing that the percentage

ownership of ESS JVC which changed hands was too small to be significant. (PR 180 at

2.) ESS LLC also claimed that its supplier base was essentially unchanged, despite

abandonment of ESS JVC’s prior tolling relationship with its processor, noting that the

factors of production underlying ESS LLC’s current production (had they been

collected) would have come from the same companies from which factors of production

were collected for ESS JVC in the third administrative review. (Id.) (However, a file

memorandum notes that ESS LLC’s counsel confirmed by phone on February 18, 2010

that ESS LLC erred in asserting that the final results of the third administrative review

contained “information regarding a relationship between certain Vietnamese
Court No. 10-00102 Page 24

companies.” (PR 181.)) As to management, ESS LLC stressed that Salvadore Piazza

remained in control of the company, both before and after the other changes. (PR 180 at

3.)

III. Final Results

On March 10, 2010, Commerce issued a memorandum detailing the issues and

decisions of the 5th AR. (PR 185, Issues and Decision Memorandum for the Final

Results of 5th Administrative Review and 4th New Shipper Review: Certain Frozen

Fish Fillets from the Socialist Republic of Vietnam (“I&D Memo”).) Comment 7 of the

I&D Memo, headed “Rate for East Sea Seafood [sic] JVC/East Sea Seafood [sic] LLC,”

describes Commerce’s findings and decisions regarding ESS LLC’s successorship-in-

interest to ESS JVC and the appropriate cash deposit and assessment rates for ESS JVC

and ESS LLC. (Id. at 35-40.) Commerce stated that it “granted ESS JVC a separate rate”

in the Preliminary Results despite “noting that the [October 31, 2008 Separate Rate

Certification] was not valid due to the change in ownership and name.” (Id. at 37.)

Commerce stated that it did so by “relying on the ESS LLC’s [sic] Section A

questionnaire response.” (Id.) The I&D Memo characterized ESS LLC’s successorship

claim as follows:
Court No. 10-00102 Page 25

Essentially, ESS JVC, through its SR certification,10 and its
voluntary response to Section A of the Department’s
antidumping duty administrative review questionnaire,11
claimed that ESS JVC’s operations remained unaffected such
that ESS LLC and ESS JVC are the same company.

(Id. at 38.) After summarizing the record, Commerce stated its finding on the

successorship issue:

[W]e find that although ESS JVC/ESS LLC did not undergo
changes in the customer base, the changes in ownership,
coupled with the changes in management and supplier base,
are so significant that we do not find that ESS LLC is the
successor-in-interest to ESS JVC.

(Id. at 39.) Specifically, Commerce found the following changes significant: (a) the

ownership changes, because the new owner’s involvement in production of subject

merchandise “may potentially affect how the Department would collect factors of

production if ESS LLC were to be individually examined”; (b) the management changes,

because ESS LLC, unlike ESS JVC, shared board members with companies involved in

production or sale of the subject merchandise; and (c) the production/supplier changes,

because the shift from producer (ESS JVC) to reseller (ESS LLC) resulted in “vastly

different” costs of production. (Id. at 39-40.)

10
Referring to the October 31, 2008 Separate Rate Certification filed by ESS LCC
on its own behalf.
11
Referring to the November 25, 2008 Section A Response filed by ESS LLC on its
own behalf.
Court No. 10-00102 Page 26

After concluding that ESS LLC was not the successor-in-interest to ESS JVC,

Commerce made findings regarding the rates for the two companies. Commerce found

that, “given the separate rates certification from ESS LLC essentially contained all the

necessary information with respect to ESS JVC, . . . ESS JVC should be assigned a

separate rate for these final results, but only to the effective date of the name change,

June 17, 2008.” (Id. at 40.) The Department determined that it would “instruct CBP to

assess $0.02 per kilogram on all appropriate [ESS JVC] entries . . . made during the POR

up to June 17, 2008,” and that “[a]ny entries made after June 17, 2008, by ESS JVC will

be liquidated at the Vietnam-wide entity rate of $2.11 per kilogram, because this

company ceased to exist.” (Id.) As to ESS LLC, Commerce determined that it “shall

instruct CBP to assess $2.11 per kilogram on all appropriate entries . . . made during the

POR as it is currently not under administrative review and remains part of the

Vietnam–wide entity.” (Id.)

The Final Results published on March 17, 2010 explicitly incorporated the

analysis of all issues discussed in the I&D Memo. See Final Results, 75 Fed. Reg. at

12,727. The Final Results chart setting out dumping margins contained a footnote

specifying that the Vietnam-wide entity “includes ESS LLC,” referencing Comment 7 of

the I&D Memo. Id. at 12,728. The Final Results restated the I&D Memo determinations

regarding the rate instructions that Commerce would issue to CBP regarding
Court No. 10-00102 Page 27

assessment of ESS JVC and ESS LLC entries, again referring to Comment 7 of the I&D

Memo. Id. As to cash deposit rates, the Final Results stated that exporters not currently

or previously reviewed, nor supplied by manufacturers currently or previously

reviewed, would be the Vietnam-wide entity rate of $2.11. Id. ESS JVC’s “cash deposit

rate for any future entries made under the name of ESS JVC will be $2.11 per kilogram”

because Commerce “determined that ESS JVC ceased to exist as of June 17, 2008.” Id.

JURISDICTION , STANDING & STANDARD OF REVIEW

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c) which

authorizes the court to hear “any civil action commenced under section 516A of the

Tariff Act of 1930.” 28 U.S.C. § 1581(c) (2006).12 Section 516A of the Tariff Act of 1930

(“the Act”), codified at 19 U.S.C. § 1516a, permits the court to review, among other

things, “a final determination . . . by the administering authority . . . under section 1675

of this title,” which includes a final determination in an administrative review. 19

U.S.C. § 1516a(2)(B)(iii); see also 19 U.S.C. § 1675(a). A challenge to such a

determination may be brought by “an interested party who is a party to the proceeding

in connection with which the matter arises.” 19 U.S.C. § 1516a(2)(A)(ii). An interested

party, as defined for the purposes of the Act, includes “a foreign manufacturer,

producer, or exporter, or the United States importer, of subject merchandise.” 19 U.S.C.

12
All citations to the United States Code refer to the 2006 edition.
Court No. 10-00102 Page 28

§ 1677(9)(A). ESS LLC is an exporter of the subject merchandise, and is therefore an

interested party.

The term “party to the proceeding” is not defined in the statute. Commerce has

promulgated a set of definitions that, among other things, define “terms that appear in

the Act but are not defined in the Act.” 19 C.F.R. § 351.102(a)(1) (2009). In these

definitions, Commerce has determined “party to the proceeding” to mean “any

interested party that actively participates, through written submissions of factual

information or written argument, in a segment of a proceeding.” 19 C.F.R.

§ 351.102(b)(36). Because ESS LLC participated actively in the proceeding before the

agency by submitting both factual information and written argument, ESS LLC is a

party to the proceeding of the 5th AR, and has standing to bring this case. See 28 U.S.C.

§ 2631(c) and 19 U.S.C. § 1516a(2)(A)(ii).

In reviewing Commerce’s final determination in an administrative review, the

Court is required to “hold unlawful any determination, finding, or conclusion found . . .

to be unsupported by substantial evidence on the record, or otherwise not in accordance

with law.” 19 U.S.C. § 1516a(b)(1), (B)(i). Substantial evidence is “‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence
Court No. 10-00102 Page 29

requires more than a mere scintilla, but is satisfied by something less than the weight of

the evidence.” Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004) (internal

citations and quotation marks omitted).

ANALYSIS

I. Commerce’s Successor-in-Interest Analysis is In Accordance With Law and
Supported by Substantial Evidence on the Record

A. Positions of the Parties on Successorship

1. ESS LLC

ESS LLC’s main argument is that the Department’s successorship analysis

ignored evidence that the company’s operations remained unchanged right before and

after the name change, and instead improperly connected the change in name from ESS

JVC to ESS LLC with (a) alterations in minority ownership and management that

occurred months earlier, and (b) the supplier relationships of ESS JVC at the time of the

3rd AR, despite ESS JVC and ESS LLC having shared the same supply arrangements

during the entire POR of the 5th AR. (Pl’s 56.2 Mem. at 7-8.) Alternatively, ESS LLC

argues that, even if Commerce properly compared ESS LLC as of the time of the name

change with ESS JVC as it existed as far back as the 3rd AR, those changes were not

significant enough to support Commerce’s negative successorship finding. (Id. at 9-16.)

Plaintiff points out that, during the PORs for both the 3rd AR and the 5th AR, PSW

owned over 90% of the company, Salvadore Piazza remained president with purchasing
Court No. 10-00102 Page 30

and selling control, and similar patterns of supplier affiliation and, as a consequence,

the same factors of production, applied. (Id.)

2. The United States and CFA

The United States argues that Commerce, in conducting the successorship

analysis, properly considered all of the changes occurring during the span of time since

the 3rd AR, culminating in the name change to ESS LLC, and correctly determined,

based on substantial evidence in the record, that the changes were significant enough

that ESS LLC was not the successor-in-interest to ESS JVC. (Def.’s 56.2 Opp. at 12-17.)

Defendant-Intervenor CFA reiterates these arguments. (Def.-Int.’s 56.2 Opp. at 6-14.)

Defendant contends that, if anything, ESS JVC benefitted from this analysis, since

Commerce could have found from the evidence that ESS JVC had become a new entity

prior to the name change, and consequently could have applied the Vietnam-wide entity

rate to ESS JVC as of an earlier point in time. (Def.’s 56.2 Opp. at 14.)

B. Analysis

The first issue for the Court to resolve is whether Commerce’s determination that

ESS LLC is not the successor-in-interest to ESS JVC is supported by substantial evidence

in the record and is otherwise in accordance with law. It is.

In an administrative review, Commerce is required to “review, and determine . . .

the amount of any antidumping duty” and publish notice of “any duty to be assessed
Court No. 10-00102 Page 31

[and] estimated duty to be deposited[.]” 19 U.S.C. § 1675(a)(1). Commerce has

explained that the purpose of conducting a successor-in-interest analysis during an

administrative review is to determine “the appropriate rate to be assigned to entities

affected by . . . some . . . change which raises the questions of the company’s status in

the proceeding.” Brass Sheet and Strip from Canada; Final Results of Antidumping

Duty Administrative Review, 57 Fed. Reg. 20,460, 20,461 (May 13, 1992).

In this case, the change that precipitated the successor-in-interest determination

was the change in name from ESS JVC to ESS LLC. Presumably, once the name had

changed, ESS LLC would no longer be able to obtain the cash deposit rate assigned to

ESS JVC in the third administrative review, unless explicitly permitted to do so by

virtue of a favorable successor-in-interest analysis. Plaintiff has urged that in

conducting the successor-in-interest determination, Commerce should have compared

the newly formed ESS LLC to ESS JVC as it existed immediately prior to the name

change on June 17, 2008. Commerce, however, elected to compare ESS LLC with ESS

JVC as it existed the last time it was subject to individual examination by the agency—in

the third administrative review. See I&D Memo at 37-40. The decision to compare ESS

LLC with ESS JVC from the 3rd AR is implicitly evident from the bases upon which

Commerce reached a negative determination in the successor-in-interest analysis. In

reaching a negative successorship determination on the basis of the changes in
Court No. 10-00102 Page 32

ownership, management, and supplier relationship, which all took place prior to the

name change, but subsequent to the 3rd AR, Commerce has given a clear indication of

the starting place for its comparison. See id. at 38-39.

The Court sees no reason why the decision to compare the newly named entity

with the entity as it existed when last examined is “otherwise contrary to law.” See 19

U.S.C. § 1516a(b)(1)(B)(i). The successor-in-interest analysis was not explicitly created

by statute or by regulation, but is an agency practice designed to facilitate the proper

implementation of the antidumping laws. Because “a company will argue

successorship, or lack thereof, depending on the particular consequences of its claim on

its antidumping duty deposit rate,” Commerce needs to have a reasonable method for

conducting the analysis that will lead to a fair result in light of “the totality of

circumstances.” Certain Brass Sheet, 57 Fed. Reg. at 20,461. The question in a

successor-in-interest determination is whether an alleged successor should qualify for

the cash deposit rate last calculated for the alleged predecessor. The Court finds that

the decision to compare ESS LLC with the last version of the alleged predecessor that

had been subject to agency review is patently reasonable. Moreover, this Court is

obligated to extend “tremendous deference to the expertise of the Secretary of

Commerce in administering the antidumping law,” when it comes to Commerce's

“identifying, selecting and applying methodologies to implement the dictates set forth
Court No. 10-00102 Page 33

in the governing statute.” Fujitsu General Ltd. v. United States, 88 F.3d 1034, 1039 (Fed.

Cir. 1996) (internal quotations omitted). Accordingly, the Court finds this

determination to be in accordance with law.

In addition to finding the methodology lawful, the Court also finds that

Commerce’s particular determination in this successor-in-interest analysis is supported

by substantial factual evidence in the record. Plaintiff does not dispute the existence of

the changes identified by the agency between ESS JVC as it existed in the third

administrative review and ESS LLC. To the contrary, Plaintiff voluntarily supplied

Commerce with information regarding each of these changes in its Separate Rate

Certification, Section A Response, and Amended Separate Rate Certification, and in its

responses to the successor-in-interest query from the agency. Seeing no factual dispute,

the Court finds that evidence in the record documenting the change in ownership, the

change in management, and the change in supplier arrangement constitutes more than

a mere scintilla of evidence in support of the agency’s determination that ESS LLC is not

a successor-in-interest to ESS JVC as it existed at the time of the third administrative

review. See Altx, 370 F.3d at 1116.
Court No. 10-00102 Page 34

II. Commerce’s Decision To Assign Plaintiff The Vietnam-Wide Entity Rate Is
Not In Accordance With Law

The second issue for the Court to resolve is whether the agency’s decision to

assign ESS LLC a cash deposit rate equal to the Vietnam-wide entity rate of $2.11/kg in

the Final Results was in accordance with law.

A. Positions of the Parties on Proper Dumping Rate for ESS LLC

1. ESS LLC

ESS LLC argues that Commerce’s determination to assign it the Vietnam-wide

entity rate as a cash deposit rate was not in accordance with law because the Vietnam-

wide entity rate was based on adverse facts available (“AFA”); but ESS LCC did not fail

to cooperate with Commerce. (Pl.’s 56.2 Mem. at 17-18.) ESS LLC asserts that pursuant

to 19 U.S.C. § 1677e(b), Commerce must find that a party failed to cooperate before an

AFA rate may be applied to that party. (Id.) ESS LLC also contends that Commerce’s

assignment of the Vietnam-wide entity rate to ESS LLC was not supported by

substantial evidence, since Commerce accepted and relied upon evidence submitted

by—and equally applicable to—ESS LLC when it found that ESS JVC was not under de

jure or de facto government control, but ignored the effect of that evidence as to ESS

LLC. (Id. at 18-20.) ESS LLC also argues that it was properly subject to the 5th AR, and

was not required to submit two requests for review (one under the name ESS JVC and

one under the name ESS LLC) in response to the Notice of Initiation. (Pl.’s Reply at 4-5.)
Court No. 10-00102 Page 35

ESS LLC points out that Commerce accepted and relied upon submissions from ESS

LLC throughout the review, and claims that Commerce “is thus estopped from arguing

now that all such submissions were invalid or that [ESS LLC] was not under review.”

(Id. at 5.)

2. United States and CFA

Defendant and CFA argue that Commerce’s application of the Vietnam-wide

entity rate to ESS LLC upon its negative successorship determination was not an

application of AFA, but was instead the operation of a presumption of government

control that applies to all NME companies that do not rebut that presumption by

requesting review and providing evidence of a lack of government control. (Def.’s 56.2

Opp. at 17-20 (citing Transcom, Inc. v. United States, 294 F.3d 1371 (Fed. Cir. 2002) and

Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir. 1997); Def.-Int.’s 56.2 Opp. at 15-

20.) Furthermore, both Defendant and CFA assert that ESS LLC’s failure to file its own

request for review (in addition to the request filed by ESS JVC) meant that ESS LLC was

no longer subject to the review once Commerce determined that it was not the

successor-in-interest to ESS JVC. (Def.’s 56.2 Opp. at 18-20; Def.-Int.’s 56.2 Opp. at 15-

19.) The government and CFA both state that Commerce “had no choice but to apply”

the Vietnam-wide entity rate to ESS LLC—a company that had not requested review

and did not inherit ESS JVC’s separate rate through succession. (Def.’s 56.2 Opp. at 19;
Court No. 10-00102 Page 36

Def.-Int.’s 56.2 Opp. at 17.) The government characterizes this treatment as “a

determination that the company has not met its burden of demonstrating that it is

separate from the government entity,” and maintains that Commerce was not obligated

to treat ESS LLC as if it had applied for a separate rate by accepting its Section A

Response. (Def.’s 56.2 Opp. at 19-20.)

B. Analysis

For the reasons set forth below, the Court finds unlawful Commerce’s decision to

assign ESS LLC the Vietnam-wide entity rate without first considering evidence on the

record that specifically addresses the extent to which ESS LLC is de facto and de jure

independent from the control of the government of Vietnam.

The normal consequence of a negative determination in a successor-in-interest

analysis is that the entity found not to be the successor-in-interest may not post cash

deposits at the rate calculated for the alleged predecessor. In the case of an

antidumping duty order imposed on goods from a market economy, Commerce

generally applies the “all others rate” to the non-succeeding entity by default.13 In the

case of a nonmarket economy, Commerce typically applies the country-wide

13
See, e.g., Notice of Preliminary Results of Antidumping Duty Changed
Circumstances Review: Polychloroprene Rubber from Japan, 69 Fed. Reg. 61,796, 61,798
(Oct. 21, 2004) (preliminarily finding that SDK was not the successor-in-interest to
SDEM/DDE, and that “SDK should not be given the same antidumping duty treatment
as [SDEM/DDE],” and that SDK, as a new entity, “should continue to be assigned as its
cash deposit rate the ‘all others’ rate”).
Court No. 10-00102 Page 37

antidumping rate as a default rate.14 In this case, for example, where Commerce found

alleged successor ESS LLC not to qualify for the rate previously assigned to alleged

predecessor ESS JVC, Defendant argues that Commerce had “no choice” but to apply

the Vietnam-wide entity rate, as this was the “only possible option” available. (Def.’s

56.2 Opp. at 19.)

The application of a NME antidumping rate (such as the Vietnam-wide entity

rate in the current proceeding) to a particular exporter is premised on the “rebuttable

presumption that all companies within the NME country are subject to government

control and, thus, should be assessed a single antidumping duty rate.” Preliminary

Results, 74 Fed. Reg. at 45,806. The Court of Appeals for the Federal Circuit (“CAFC”)

has, to some extent, sanctioned the use of this rebuttable presumption.15 Sigma Corp. v.

14
See, e.g., Frozen Warmwater Shrimp From Vietnam: Notice of Preliminary
Results of Antidumping Duty Changed Circumstances Reviews, 74 Fed. Reg. 31,698,
31,700 (July 2, 2009) (preliminarily finding that CAFISH was not the successor-in-
interest to CATACO, and thus “should not receive CATACO’s current separate rate and
that the cash deposit rate for . . . CAFISH should continue to be the current Vietnam-
wide rate”) (unchanged in final results, see 74 Fed. Reg. 42,050, 42,051); Wooden
Bedroom Furniture from the People’s Republic of China: Preliminary Results of
Antidumping Duty Changed Circumstances Review, 72 Fed. Reg. 41,492, 41,495 (July
30, 2007) (preliminarily finding that Tradewinds International is not the successor-in-
interest to Fortune Glory, “and, therefore, should not be given the same antidumping
duty treatment as Fortune Glory”) (unchanged in final results, see 72 Fed. Reg. 60,812,
60,813-14.).
15
The Court notes that in most, if not all, cases involving a country-wide NME
antidumping duty rate, the country-wide margin has been calculated using adverse
inferences. See, e.g., Certain Frozen Fish Fillets From the Socialist Republic of Vietnam:
Court No. 10-00102 Page 38

United States, 117 F.3d 1401, 1405 (Fed. Cir. 1997) (“[I]t was within Commerce’s

authority to employ a presumption of state control for exporters in a nonmarket

economy, and to place the burden on the exporters to demonstrate an absence of central

government control.”) The CAFC later construed its holding in Sigma by emphasizing

the rebuttability of the presumption:

Although in Sigma we upheld Commerce's presumption of
state control, which shifted the burden to the companies under
review to demonstrate that they were independent from the
state-controlled entity, we recognized that the presumption is
rebuttable, and that a party that is subject to the presumption
has a right to attempt to rebut it.

Transcom, Inc. v. United States, 182 F.3d 876, 883 (Fed. Cir. 1999) (emphasis added).

The issue raised in this case, therefore, is whether the application of the Vietnam-wide

Final Results of Antidumping Duty Administrative Review and Partial Rescission, 73
Fed. Reg. 15,479, 15,480 (Mar. 24, 2008) (“the Department assigned a rate based on the
use of total adverse facts available (‘AFA’) to the Vietnam-Wide Entity”). The Court
does not believe that either the CAFC or the CIT have ever considered the extent to
which the application of the rebuttable presumption, described herein, may conflict
with 19 U.S.C. § 1677e(b). This statute states that “if [Commerce] finds that an
interested party has failed to cooperate by not acting to the best of its ability to comply
with a request for information,” Commerce “may use an inference that is adverse to the
interests of that party in selecting from among the facts otherwise available.” 19 U.S.C.
§ 1677e(b) (emphasis added).
It seems that the application of an antidumping duty rate that has been based on
AFA to certain companies by the operation of a “rebuttable presumption” of
government control, without the finding of failure to cooperate required by 1677e(b),
may be ultra vires. The Court need not reach this question in the case before it and
declines to do so.
Court No. 10-00102 Page 39

entity rate to ESS LLC without considering ESS LLC’s evidence attempting to rebut the

presumption of state control was appropriate. It was not.

In Transcom, the CAFC held that parties not named in the notice of initiation of

an administrative review could not be subjected to the presumption that they were

under state control as a result of the administrative review, because those parties did

not have notice that they would be subjected to the presumption, and therefore, could

not have attempted to rebut it. Transcom, 182 F.3d at 883-84. In light of Sigma and

Transcom, it would appear that whenever a company from a non-market economy is

seeking a successor-in-interest analysis, the alleged successor must have an opportunity

to rebut the presumption of state control, because the alleged successor faces the

prospect of being subjected to the presumption that it is controlled by the state entity if

it is found not to be the successor-in-interest, and receives the NME country-wide cash

deposit rate. This would seem to be the case regardless of whether the successor-in-

interest analysis is sought in a changed circumstances review or in an administrative

review.

Under the facts of this case, however, the question of whether Commerce should

give an alleged successor the opportunity demonstrate independence from the state

entity is not hypothetical. Instead, Commerce refused to consider the effect on ESS LLC

of abundant evidence in the administrative record which would tend to support ESS
Court No. 10-00102 Page 40

LLC’s attempts to rebut that presumption. This refusal is inexcusable. The evidence

appears in the form of (a) the Separate Rate Certification submitted by ESS LLC on

October 31, 2008 (PR 34, CR 8), (b) the separate rates portion of the Section A Response

submitted by ESS LLC on November 25, 2008 (PR 41, CR 10), (c) ESS LLC’s financial

statements, submitted on December 19, 2008 (PR 49, CR 13), and (d) the Amended

Separate Rate Certification submitted on be half of ESS LLC and ESS JVC on March 23,

2009 (PR 80), and is unquestionably part of the administrative record. Moreover, the

agency relied upon this very evidence, submitted by ESS LLC, in finding in the

Preliminary Results that ESS JVC was de jure and de facto independent of the Vietnamese

government during the 5th POR. Commerce’s application of the presumption of state

control, without considering abundant record evidence rebutting that very

presumption, pushed legal fiction into the realm of legal fantasy. Doing so was not in

accordance with law.

Remarkably, Defendant takes the position that there was nothing ESS LLC could

have done to rebut the presumption in this case. Defendant claims that ESS LLC could

not have requested a separate rate, presumably via a separate rate application, “because

it never requested to be reviewed” in the 5th AR. (Def.’s 56.2 Opp. at 19-20.) Defendant

states that it would not consider the separate rates portion of ESS LLC’s Section A

Response to evaluate government control, because after reaching the negative
Court No. 10-00102 Page 41

successor-in-interest determination, ESS LLC “was no longer properly part of the

review.” (Id. at 20.) Defendant offers no explanation why it did not consider the

Separate Rate Certification submitted by ESS LLC, or the Amended Separate Rate

Certification, submitted by both ESS LLC and ESS JVC. Ostensibly, though, Commerce

will not accept a separate rate certification from an entity that has not previously

received a separate rate. Commerce’s obstinance left Plaintiff in a situation where the

presumption was irrefutable rather than rebuttable.

When a successor-in-interest analysis has been sought in the course of an

administrative review, such a review has typically, if not universally, been conducted

when both the alleged predecessor and the alleged successor have been named in the

notice of initiation for that administrative review.16 When asked by ESS LLC, an alleged

16
See Chlorinated Isocyanurates from Spain: Preliminary Results of
Antidumping Duty Administrative Review, 72 Fed. Reg. at 37,191 (July 9, 2007) (finding
in preliminary results of administrative review that Aragonesas Industrias y Energía
S.A. “Aragoneses” was the successor-in-interest to Aragonesas Delsa S.A. (“Delsa”)),
and Initiation of Antidumping And Countervailing Duty Administrative Reviews and
Request for Revocation in Part, 71 Fed. Reg. 42,626, 42,627 (July 27, 2006) (initiating said
administrative review as to both Aragoneses and Delsa); see also Stainless Steel Bar
From Italy: Preliminary Results of Antidumping Duty Administrative Review and
Preliminary Rescission of Review, 70 Fed. Reg. 17,656, 17,657 (April 7, 2005) (finding
UGITECH S.A. (“Ugitech”) the successor-in-interest to Ugine-Savoie Imphy S.A.
((Ugine-Savoie”)), and Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation in Part, 69 Fed. Reg. 30,282 (May
27, 2004) (initiating said administrative review as to both Ugine-Savoie and Ugitech);
see also Purified Carboxymethylcellulose from Finland; Notice of Preliminary
Determination of Antidumping Duty Administrative Review, 72 Fed. Reg. 44,106,
44,107-08 (Aug. 7, 2007) (finding CP Kelco OY the successor-in-interest to Noviant OY),
Court No. 10-00102 Page 42

successor that was not named in the notice of initiation, to conduct a successor-in-

interest analysis in this administrative review, Commerce might have declined, but it

did not. Rather than informing ESS LLC that it would need to separately request a

changed circumstances review because it was not named in the notice of initiation, and

therefore not properly under administrative review, Commerce agreed to determine

whether ESS LLC was the successor-in-interest to ESS JVC. Commerce accepted into

the record repeated submissions from ESS LLC containing both factual information and

legal argument, conferring “party to the proceeding” status to ESS LLC. Commerce

specifically solicited additional information from ESS LLC (and the petitioners)

pertaining to the successorship question, and set forth a reasoned explanation of the

results of its analysis in the I&D Memo. After permitting and soliciting the participation

of ESS LLC in this administrative proceeding for more than 15 months, Commerce

cannot now act as if ESS LLC is a total stranger.

Furthermore, Commerce explicitly found in the Preliminary Results that ESS

JVC, as it existed in the 5th POR, was not under de jure or de facto control of the

Vietnamese government. While the changes in supplier relationship, ownership and

management affected the successor-in-interest determination, these changes were

and Initiation of Antidumping and Countervailing Duty Administrative Reviews and
Requests for Revocation in Part, 71 Fed. Reg. 51,573, 51,574 (Aug. 30, 2006) (initiating
administrative review as to both Noviant Oy and CP Kelco Oy).
Court No. 10-00102 Page 43

irrelevant to the agency’s decision to grant ESS JVC a separate rate in this

administrative review. The Court has not seen any evidence in the record, or heard any

argument from the parties, suggesting that, attendant with the name change on June 17,

2008, ESS LLC fell under government control. To the contrary, the evidence suggests

that the name change on June 17, 2008 was not, itself, associated with any change in the

extent of government control over ESS JVC’s, or ESS LLC’s, operations. For the

foregoing reasons, then, the Court finds that Commerce’s decision not to determine

whether ESS LLC had made a showing that it was entitled to a separate rate is not in

accordance with law.

III. Liquidation of ESS JVC Entries After June 17, 2008 at ESS LLC Rate Was
Unlawful

The final issue for the Court to resolve is whether Commerce’s decision to order

liquidation of entries by ESS JVC at the rate assigned to ESS LLC for entries made after

the effective date of the name change is supported by substantial evidence in the record

and otherwise in accordance with law.

A. Positions of the Parties on ESS JVC Liquidation Rate

1. ESS LLC

ESS LLC contends that Commerce wrongly determined to instruct CBP to assess

the Vietnam-wide entity rate on entries made by ESS JVC retroactive to the date of the

name change. (Pl.’s 56.2 Mem. at 20.) ESS LLC points out that shipments exported by
Court No. 10-00102 Page 44

ESS JVC up to the date of the name change would have entered the United States weeks

later, and contends that ESS JVC’s $0.02 rate should apply to all ESS JVC entries

shipped from Vietnam on or before June 17, 2008. (Id.)

2. United States and CFA

Defendant did not address this argument. CFA opposes ESS LLC’s position on

the grounds that the argument was not raised before the agency, and that ESS LLC did

not cite record evidence regarding the dates on which ESS LLC exports first entered the

United States for consumption. (Def.-Int.’s 56.2 Opp. at 20.)

B. Analysis

The Court finds that the decision of Commerce to order liquidation of entries by

ESS JVC at the rate assigned to ESS LLC for all entries made after the effective date of

the name change is not supported by substantial evidence in the record or otherwise in

accordance with law.

In the Final Results, Commerce stated that “[a]ny entries made after June 17,

2008, by ESS JVC will be assessed at the Vietnam-wide entity rate of $2.11 per

kilogram.” Final Results, 75 Fed. Reg. at 12,728. In the I&D Memo, Commerce explains

that it reached this decision because, after this date, ESS JVC “ceased to exist.” I&D

Memo at 40. The Court does not find any evidence in the record to support

Commerce’s decision to treat entries made by ESS JVC, after the date of the name
Court No. 10-00102 Page 45

change, as somehow not the province of ESS JVC. (See generally CR 1, 4.) Without a

more reasoned explanation as to why entries made by ESS JVC should be treated as if

made by ESS LLC, the Court cannot sustain this aspect of the Final Results, as it is not

supported by substantial evidence and is not otherwise in accordance with law.

IV. Remand

On remand, the agency need not tamper with the successor-in-interest analysis,

which has been sustained. It must, however, consider all of the evidence in the

administrative record pertaining to ESS LLC’s de jure and de facto independence from

the Vietnamese government, as detailed by the Court above, and make a finding as to

whether ESS LLC has rebutted the presumption of government control. Upon a finding

that ESS LLC is independent of the control of the Vietnamese government, Commerce

must assign a separate cash deposit rate to ESS LLC that is supported by substantial

evidence and is otherwise in accordance with law, and shall immediately issue

liquidation instructions to CBP adjusting the cash deposit rate for ESS LLC accordingly.

Any finding by Commerce that ESS LLC is not independent of the control of the

Vietnamese government must explain why the presumption has not been rebutted, and

why the evidence found sufficient in the Preliminary Results to establish ESS JVC’s

independence from the Vietnamese government, which was submitted by ESS LLC, is

insufficient to establish the same for ESS LLC. Additionally, Commerce must provide a
Court No. 10-00102 Page 46

reasoned explanation, supported by evidence in the record, for why entries shipped by

ESS JVC but entered after the effective date of the name change should be treated as

entries made by ESS LLC. If Commerce determines on remand that all entries shipped

by ESS JVC should be given the rate assigned to ESS JVC, it shall amend the liquidation

instructions accordingly. Because the unlawful Final Results appear to have placed

Plaintiff in imminent danger of suffering severe economic harm, Commerce is

instructed to file its remand results no later than April 27, 2010.

CONCLUSION

For the reasons given above, upon consideration of Plaintiff’s Motion for

Judgment on the Agency Record, Defendant’s and Defendant-Intervenor’s responses

thereto, Plaintiff’s reply, and Defendant’s Surreply, and upon careful consideration of

the administrative record, this Court affirms in part and remands in part the Final

Results. It is hereby

ORDERED that Plaintiff’s Motion for Judgment on the Agency Record is

PARTIALLY GRANTED and PARTIALLY DENIED; and it is further

ORDERED that Commerce’s determination in the Final Results of the fifth

administrative review of the antidumping duty order on Certain Frozen Fish Fillets

from the Socialist Republic of Vietnam that ESS LLC is not the successor-in-interest to

ESS JVC is AFFIRMED, and it is further
Court No. 10-00102 Page 47

ORDERED that the Final Results are REMANDED to Commerce; and it is

further

ORDERED that Commerce must consider all evidence in the administrative

record pertaining to ESS LLC’s de jure and de facto independence from the Vietnamese

government, and make a finding as to whether ESS LLC has rebutted the presumption

of government control; and it is further

ORDERED that if Commerce finds that ESS LLC is independent of the control of

the Vietnamese government, it must assign to ESS LLC a cash deposit rate separate

from the Vietnam-wide entity rate that is supported by substantial evidence and is

otherwise in accordance with law; and it is further

ORDERED that if Commerce finds that ESS LLC is not independent of the

control of the Vietnamese government based on the evidence in the record, it must

explain why the presumption has not been rebutted, and it must explain why the

evidence cited in the Preliminary Results that was sufficient to establish ESS JVC’s

independence from the Vietnamese government is insufficient to establish that ESS LLC

is independent of the Vietnamese government; and it is further

ORDERED that Commerce must either provide a reasoned explanation,

supported by evidence in the record, for why it should treat entries made by ESS JVC,

after the effective date of the name change, as entries made by ESS LLC, or alternatively
Court No. 10-00102 Page 48

shall find that all entries made by ESS JVC are given the rate of $0.02 per kilogram

assigned to ESS JVC in the Final Results; and it is further

ORDERED that Commerce shall file with this Court the remand results no later

than Tuesday April 27, 2010; and it is further

ORDERED that Commerce shall issue new liquidation instructions to U.S.

Customs and Border Protection in accordance with the remand results no later than

Tuesday, April 27, 2010; and it is further

ORDERED that Plaintiff may file comments with this Court indicating whether

they are satisfied or dissatisfied with the remand results no later than Friday, April 30,

2010; and that Defendant and Defendant-Intervenor may file responses to Plaintiffs’

comments no later than Wednesday, May 5, 2010; and it is further

ORDERED that the remaining component of Plaintiff’s Motion for Preliminary

Injunction is denied as moot.

/s/Gregory W. Carman
Gregory W. Carman, Judge

Dated: April 19, 2010
New York, NY