An Giang Fisheries Import & Export Joint Stock Co. v. United States

• Decision Date: 10 July 2017
• Docket Number: Slip Op. 17–82,Consol. Court No. 14–00109
• Citation: 236 F.Supp.3d 1352
• Parties: AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY et al., Plaintiffs and Consolidated Plaintiffs, and Vietnam Association of Seafood Exporters and Producers et al., Plaintiff–Intervenor and Consolidated Plaintiff–Intervenors, v. UNITED STATES, Defendant, and Catfish Farmers of America et al., Defendant–Intervenor and Consolidated Defendant–Intervenors.
• Court: U.S. Court of International Trade

236 F.Supp.3d 1352

AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY et al., Plaintiffs and Consolidated Plaintiffs,

and

Vietnam Association of Seafood Exporters and Producers et al., Plaintiff–Intervenor and Consolidated Plaintiff–Intervenors,

v.UNITED STATES, Defendant,andCatfish Farmers of America et al., Defendant–Intervenor and Consolidated Defendant–Intervenors.

Slip Op. 17–82

Consol. Court No. 14–00109

United States Court of International Trade.

July 10, 2017

Matthew Jon McConkey, Mayer Brown LLP, of Washington, DC, for Plaintiffs, Consolidated Plaintiff–Intervenor, and Consolidated Defendant–Intervenor An Giang Fisheries Import and Export Joint Stock Company et al.

Nazakhtar Nikakhtar and Jonathan Mario Zielinski, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Consolidated Plaintiffs, Defendant–Intervenors, and Consolidated Defendant–Intervenors Catfish Farmers of America et al.

John Joseph Kenkel, deKieffer & Horgan PLLC, of Washington, DC, for Consolidated Plaintiff Binh An Seafood Joint Stock Company.

Andrew Brehm Schroth, Andrew Thomas Schutz, Dharmendra Narain Choudhary, and Ned Herman Marshak, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, NY and Washington, DC, for Consolidated Plaintiff, Plaintiff–Intervenor, and Consolidated Defendant–Intervenor Vietnam Association of Seafood Exporters and Producers.

Kara Marie Westercamp, Trial Attorney, U.S. Department of Justice, Commercial Litigation Branch—Civil Division, of Washington, DC, for defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was David W. Richardson, Senior Attorney, U.S. Department of Commerce, Office of the Chief Counsel for Trade Enforcement and Compliance, of Washington, DC.

OPINION AND ORDER

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Department" or "Commerce") Final Results of Redetermination Pursuant to An Giang Fisheries Import and Export Joint Stock Company et al. v. United States , 179 F.Supp.3d 1256 (2016) filed pursuant to the court's decision in An Giang Fisheries Import and Export Joint Stock Company v. United States , 40 CIT ––––, 179 F.Supp.3d 1256 (2016). See Final Results of Redetermination Pursuant to An Giang Fisheries Import and Export Joint Stock Company et al. v. United States , 179 F.Supp.3d 1256 (2016), Feb. 10, 2017, ECF No. 151–1 ("Remand Results "); see also An Giang Fisheries Import and Export Joint Stock Company v. United States , 40 CIT ––––, 179 F.Supp.3d 1256 (2016). The court remanded Commerce's Final Results in the ninth antidumping duty ("ADD") administrative review of certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam") to further explain or reconsider its selection of data to calculate a surrogate value ("SV") of respondents' rice husk factor of production ("FOP") and Commerce's decision to construct a value for respondent Vinh Hoan Corporation's ("Vinh Hoan") fish oil byproduct rather than selecting the best SV data for fish oil placed on the record. See An Giang , 40 CIT at ––––, 179 F.Supp.3d at 1262 ; see generally Certain Frozen Fish Fillets From the Socialist Republic of Vietnam , 79 Fed. Reg. 19,053 (Dep't Commerce Apr. 7, 2014) (final results of ADD administrative review and new shipper review; 2011–2012) ("Final Results "), as amended 79 Fed. Reg. 37,714 (Dep't Commerce July 2, 2014) and accompanying Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Memorandum for the Final Results of the Ninth Administrative Review and Aligned New Shipper Review, Aug. 5, 2014, ECF No. 29–3 ("Final Decision Memo"). The court also remanded Commerce's normal value ("NV") calculation to permit Commerce to ensure that the export price and NV are stated on a consistent basis.¹ An Giang , 40 CIT at ––––, 179 F.Supp.3d at 1262 ; see also Final Decision Memo at 70–75.

On remand, Commerce changed its selection to value rice husk to the Indonesian Central Bureau of Statistics ("ICBS") historic rice prices data in Indonesia. Id. at 12–13. On remand, Commerce also adjusted Vinh Hoan's U.S. sales database and FOP database to ensure that all data is reported on a net weight basis (i.e. , exclusive of glazing). Id. at 18–19. The court sustains both determinations because Commerce has complied with the court's remand instructions and no party challenges either decision.

Commerce also continued to construct a value for Vinh Hoan's fish oil byproduct based on a calculation of Vinh Hoan's data for inputs used to produce its fish oil while also continuing to maintain that it is using Indonesian import data for HTS 1504.20.9000. See Remand Results 14–17. An Giang Fisheries Import and Export Joint Stock Company, Asia Commerce Fisheries Joint Stock Company, Cuu Long Fish Joint Stock Company, Hiep Thanh Seafood Joint Stock Company, International Development and Investment Company, QVD Food Company Ltd., Southern Fishery Industries Company, Ltd., and Vinh Hoan Corporation (collectively "Vinh Hoan") continue to challenge Commerce's decision to construct a value for fish oil as unsupported by substantial evidence. See Pl.'s Comments on Final Results of Redetermination Pursuant to Remand 4–8, Apr. 11, 2017, ECF No. 155 ("An Giang Remand Comments"). The court remands Commerce's determination because Commerce fails to explain why its decision to construct a value rather than choose the best available existing SV data source for fish oil is reasonable.

BACKGROUND

The court generally presumes familiarity with the facts as discussed in An Giang . Nevertheless, the court briefly summarizes the facts relevant to its discussion here for ease of reference. In its final determination, Commerce valued respondents' rice husk FOP using Indonesian import data under HTS 1213.00, covering "Cereal Straw and Husks, Unprepared, Whether or Not Chopped, Ground, Pressed, or in the Form of Pellets." Final Decision Memo at 36. The court remanded Commerce's selection to value rice husk because Commerce failed to explain why the import data is specific, representative of a broad market average, and not aberrational. See An Giang , 40 CIT at ––––, 179 F.Supp.3d at 1275–76. Second, in its Final Results , Commerce determined that the correct U.S. price to use for its margin calculations is "the gross unit price (i.e. , glazed weight basis and unglazed weight basis for those specific sales) recorded on the commercial invoice because this is the weight basis price that Vinh Hoan sold and was paid for the subject merchandise." Final Decision Memo at 71. The court granted Defendant's request for a remand for Commerce to reconsider its decision not to adjust Vinh Hoan's NV to exclude glazing weight from Vinh Hoan's FOP consumption calculations. See An Giang , 40 CIT ––––, 179 F.Supp.3d at 1285.

Third, Commerce determined that, although Indonesian import data under HTS 1504.20.9000 is the best available information to value Vinh Hoan's fish oil byproduct in its final results, it should "cap" the price of fish oil at the calculated constructed value of the FOPs and ratios used by Vinh Hoan to make fish oil. See Final Decision Memo at 78–86. Commerce justified its constructed "cap" because Vinh Hoan reported producing only unrefined fish oil while the import data includes prices for both refined and unrefined fish oil. See id. at 81–83. The court explained that "Commerce's purported ‘cap’ is in fact a rejection of the import data in favor of a [constructed value]." An Giang , 40 CIT at ––––, 179 F.Supp.3d at 1281–82. Therefore, the court remanded Commerce's determination for further consideration and explanation of why it is reasonable to depart from the normal methodology of choosing the best existing SV data source by employing a constructed value to value fish oil. See id. , 40 CIT at ––––, 179 F.Supp.3d at 1283.

In its remand redetermination, Commerce reopened the record to examine whether the rice husk SV is specific and non-aberrational. Remand Results 5. Commerce continued to find that the import data under this category is specific to Vinh Hoan's rice husk input because the HTS heading names "cereal husks" as one the items covered by the heading. Id. at 8. However, Commerce found the Indonesian import data for HTS 1213.00 aberrational because the SV data derived from the import data is too high relative to data from the same HTS subcategory for other countries on Commerce's list of economically comparable countries. Id. at 10–11. On remand, Commerce selected Indonesian ICBS data to value rice husk because it found that the ICBS data and Indian import data equally satisfied its SV data selection criteria, but the ICBS data is from the primary surrogate country. Id. at 12–13. Further, Commerce reopened the record and requested Vinh Hoan to submit a revised U.S. sales database and revised FOP database on a net weight basis because Commerce found that Vinh Hoan reported U.S. sales as well as FOP consumption on a mixture of net weight and gross weight bases. Id. at 18–19. Finally, on remand, Commerce continued to construct a value for Vinh Hoan's fish oil byproduct derived from a build-up of FOPs used to produce fish oil.²

Id. at 14–15. Commerce justified this determination by noting that the SV from the import data yielded a higher value than the whole live fish input used to make the subject merchandise. Id. at 14. Commerce considered this result unreasonable, and it attributed the anomaly to the fact that the import data on the record includes prices for refined fish oil while Commerce found that Vinh Hoan produced only unrefined fish oil. Id. at 15.

These changes in Commerce's methodology on remand resulted in revised weighted-average dumping margin for mandatory respondent Vinh Hoan and for the separate respondents. See id. at 30. Vinh Hoan's margin changed to $0.00 per kilogram ("/kg"), and the rate assigned...