Catfish Farmers of America v. United States, 121814 USCIT, 11-00109

Docket Nº:11-00109
Opinion Judge:R. Kenton Musgrave, Senior Judge
Party Name:CATFISH FARMERS OF AMERICA, et al., Plaintiffs, v. UNITED STATES, Defendant, and VINH HOAN CORPORATION, VINH QUANG FISHERIES CORPORATION, H&N FOODS INTERNATIONAL, and VIETNAM ASSOCIATION OF SEAFOOD EXPORTERS AND PRODUCERS Defendant-Intervenors. Slip Op. 14-144
Attorney:Valerie A. Slater, Jarrod M. Goldfeder, Nazakhtar Nikakhtar, and Nicole M. D'Avanzo, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington DC, for the plaintiffs. Ryan M. Majerus, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, argued fo...
Case Date:December 18, 2014
Court:Court of Appeals of International Trade
 
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CATFISH FARMERS OF AMERICA, et al., Plaintiffs,

v.

UNITED STATES, Defendant,

and

VINH HOAN CORPORATION, VINH QUANG FISHERIES CORPORATION, H&N FOODS INTERNATIONAL, and VIETNAM ASSOCIATION OF SEAFOOD EXPORTERS AND PRODUCERS Defendant-Intervenors.

No. 11-00109

Slip Op. 14-144

Court of Appeals of International Trade

December 18, 2014

[Sustaining remand results on sixth antidumping duty administrative review of frozen fish fillets from the Socialist Republic of Vietnam.]

Valerie A. Slater, Jarrod M. Goldfeder, Nazakhtar Nikakhtar, and Nicole M. D'Avanzo, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington DC, for the plaintiffs.

Ryan M. Majerus, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, argued for the defendant. On the brief were Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Franklin E. White, Jr., Assistant Director. Of Counsel was David W. Richardson, Attorney-International, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Matthew J. McConkey and Jeffrey C. Lowe, Mayer Brown LLP, of Washington DC, for defendant-intervenor Vinh Hoan Corporation.

Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington DC, for defendant-intervenors Vinh Quang Fisheries Corporation and H&N Foods International.

Mark E. Pardo and Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington DC, for defendant-intervenor Vietnam Association of Seafood Exporters and Producers.

OPINION

R. Kenton Musgrave, Senior Judge

This opinion considers the results of redetermination ("Redetermination" or "RR") of Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results of the Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review, 76 Fed. Reg. 15941 (Mar. 22, 2011), PDoc 246 ("Sixth Review") from the International Trade Administration, United States Department of Commerce ("Commerce"). See generally Slip Op. 13-63 (May 23, 2013). The plaintiffs, Catfish Farmers of America, et alia, petitioners in the administrative proceeding, argue for further remand on several grounds. On different grounds, the defendant-intervenors, Vinh Hoan Corporation, et alia, respondents before Commerce, also argue for further remand. For the following reasons, however, the Redetermination will be sustained.

I. Background

As previously described, the primary dispute is over Commerce's surrogate valuation ("SV") of the respondents' factors of production ("FOPs").1 See 19 U.S.C. §1677b(c)(1). The analysis of the record's information thereon as a whole was remanded for reconsideration and/or clarification. In the Redetermination, Commerce's surrogate country selection again resolved to analysis of the information available for Bangladesh versus the Philippines. The dispute here continues to focus upon the extent to which the Bangladesh Department of Agricultural Marketing ("DAM") data and the Philippine Bureau of Aquaculture Statistics ("BAS") data satisfy the "broad market average" and "specificity" SV factors.

Commerce had also requested remand to address an omission regarding an allegation of subsidies for Gemini Sea Food, upon whose Bangladeshi financial data Commerce had relied, as well as reconsideration of the SV for fish waste. For the fish waste, the Sixth Review had relied upon import statistics for the Philippines as opposed to specific price quotes from Vitarich Corporation, a Philippine fish and seafood processor. In addition, SVs for broken meat and fish skins were also remanded, since the Vitarich quote was bound to those analyses as well.

With respect to specific questions previously posed by the court, on remand Commerce vacated its prior finding that the Philippine BAS data were unsuitable due to alleged data volatility, vacated its prior finding that alleged differences in BAS prices rendered the Philippine source unsuitable, and accounted for changes in inventory in the surrogate financial ratio calculations of data for Fine Foods Ltd., a Bangladeshi integrated processor of seafood. Regarding the SV for the whole fish FOP, Commerce also continued to consider both the Philippines' BAS and Bangladesh's DAM data to represent "official statements" of those governments as to the price of whole live fish relevant to surrogate country selection.

Considering the BAS data in isolation, Commerce again observed that they covered various seafood products of 81 provinces, represented sampling selected from both top-producing provinces and less significant-producing provinces, represented a grand total of 47.14 MTs of Pangasius production for two full years, i.e., 0.08 percent of Bangladeshi production for a single year and less than 0.001 percent of total Philippine aquaculture production. RR at 5. Commerce also noted that the Philippines Secretary of Agriculture described the Philippines Pangasius industry, in a letter submitted one year and four months after the POR, as being provided extensive support, having high production costs, limited in production and sales, and still in its incipient stage and considered an infant industry. Id. at 5-6. Commerce also concluded from the BAS survey forms that the Pangasius industry is not well-established, as Pangasius is not one of the types of fish listed on the forms and must be written in separately. Id. at 6.

In the end, although Commerce "do[es] not question the validity of the BAS sampling methodology as a whole", and the question being whether the data source represents the best information available for SV purposes given the information of record, Commerce identified as an "underlying problem" that there is no explanation on the record on how the BAS filled apparent "gaps" in the data.2 Commerce thus concluded unclear the degree to which the estimated total Pangasius production figures provided in the BAS data are a reliable indicator of the country's production in this instance, and therefore determined that the BAS data for Pangasius do not represent a broad market average suitable for SV purposes. Id.

Considering the DAM data, through juxtaposition against the BAS data, Commerce found them to represent a broad market because they are "a fuller set" than the BAS data and reliable because they were "collected using a scientific method". Specifically, Commerce found the DAM data a "fuller set" than the BAS data because (a) the DAM data were collected using direct weekly price observations, from each district, covering the exact POR, whereas the BAS data are extrapolated estimates of total production, (b) Pangasius data were a category specifically collected by DAM whereas the BAS data relied on users to input "Pangasius" under a general "Other" category, and (c) the DAM data contained data points for 91.43 percent of Bangladesh's districts (64 out of 67 districts) covering 2, 828 weekly price reports during the precise period of the POR, whereas the BAS coverage was more geographically limited. Id. at 8.

Addressing the issues raised in the prior opinion, Commerce provided (1) elaboration on past cases in which Commerce faced similar factual circumstances, where, despite its preference for data containing volume and value information, it used data to value major inputs absent such information (such as the DAM data here); (2) clarification of how the data would be representative of commercial quantities of whole fish sales; (3) consideration of the size of the DAM data as a factor as well as its prior statement that the Philippine sampling methodology does not provide statistically equivalent representation in comparison; and (4) consideration of the plaintiffs' contention that there is no record evidence that links the DAM data and the Fisheries Statistical Yearbook of Bangladesh (relied upon to demonstrate the size of Bangladesh's Pangasius production) or any other basis for assuming that the DAM 2008-09 data cover more sales or quantities than the Philippine national statistics; and (5) consideration of the affidavits submitted by the plaintiffs concerning DAM's price data collection methodology.

On the first three points, above, Commerce found the lack of quantity information associated with the DAM data insignificant after analogizing the situation to the Indian JPC data for steel wire rod data used in Nails and Hangers3 (i.e., price data with no underlying values or volumes) and after finding the DAM price data represent "systematic, national-level price monitoring" that is specific to the same Pangasius species at issue and collected by a government agency and maintained on a regular basis. Id. at 8-9. Given that whole live Pangasius fish are a highly perishable product, and also given the scope, coverage, and frequency of collection of the DAM data, Commerce reasoned that the DAM data do not represent insignificant quantities when considered alongside the fact that the Pangasius market totaled 59, 474 MTs during this period. Id. at 9.

Regarding the argument of a lack of a direct link between the DAM data and the Fisheries Statistical Yearbook of Bangladesh, Commerce found that data do not have to be all from the same source to provide useful, reliable government-generated information, and that the lack of direct linkage is unsurprising since the Government of Bangladesh collected them for different purposes -- one to report on weekly market prices, and the other to report on overall annual country-wide production. Id. at 9. Commerce thus reasoned that the DAM data represent a fuller set of data and thus a broad market average as compared to the BAS data, because the DAM data as a whole represent national-level governmental-price...

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