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

• Decision Date: 24 May 2018
• Docket Number: Slip Op. 18–60,Consol. Court No. 14–00109
• Citation: 317 F.Supp.3d 1304
• 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–Intervenors and Consolidated Defendant–Intervenors.
• Court: U.S. Court of International Trade

317 F.Supp.3d 1304

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–Intervenors and Consolidated Defendant–Intervenors.

Slip Op. 18–60

Consol. Court No. 14–00109

United States Court of International Trade.

May 24, 2018

Matthew Jon McConkey, Mayer Brown LLP, of Washington, DC, argued for Plaintiffs, Consolidated Plaintiff–Intervenors, and Consolidated Defendant–Intervenors An Giang Fisheries Import and Export Joint Stock Company; Cuu Long Fish Joint Stock Company; Hiep Thanh Seafood Joint Stock Company; NTSF Seafoods Joint Stock Company; QVD Food Company Ltd.; Southern Fishery Industries Company, Ltd.; Vinh Hoan Corporation; Asia Commerce Fisheries Joint Stock Company; and International Development and Investment Corporation.

Jonathan Mario Zielinski and Heather Kay Pinnock, Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for Consolidated Plaintiffs, Defendant–Intervenors, and Consolidated Defendant–Intervenors Catfish Farmers of America; America's Catch; Alabama Catfish Inc. d/b/a Harvest Select Catfish, Inc.; Heartland Catfish Company; Magnolia Processing, Inc. d/b/a Pride of the Pond; and Simmons Farm Raised Catfish, Inc. On the brief was Nazakhtar Nikakhtar.

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

Jordan Charles Kahn, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Washington, DC, argued for Consolidated Plaintiff, Plaintiff–Intervenor, Consolidated 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, argued 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, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC. Also appearing as Of Counsel was Kristen McCannon, U.S. Department of Commerce, of Washington, DC.

OPINION

Kelly, Judge:

Before the court is the U.S. Department of Commerce's ("Department" or "Commerce") second remand determination in the ninth antidumping duty ("ADD") administrative review of certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam"), filed pursuant to the court's order in An Giang Fisheries Import and Export Joint Stock Company v. United States, 41 CIT ––––, 236 F.Supp.3d 1352 (2017). See Final Results of Redetermination Pursuant to An Giang Fisheries Import and Export Joint Stock Company et al., 236 F.Supp.3d 1352 (CIT 2017), Sept. 22, 2017, ECF No. 167 ("Second Remand Results"); see also An Giang Fisheries Import and Export Joint Stock Company v. United States, 41 CIT ––––, ––––, 236 F.Supp.3d 1352, 1361 (2017) (" An Giang II").

The court remanded Commerce's final determination and first remand determination on the issue of calculating a surrogate value for respondent Vinh Hoan Corporation's ("Vinh Hoan") fish oil byproduct in this review. See An Giang II, 41 CIT at ––––, 236 F.Supp.3d at 1358–61 ; An Giang Fisheries Import and Export Joint Stock Company v. United States, 40 CIT ––––, ––––, 179 F.Supp.3d 1256, 1285 (2016) (" An Giang I"); Certain Frozen Fish Fillets From [Vietnam], 79 Fed. Reg. 19,053 (Dep't Commerce Apr. 7, 2014) (final results of ADD administrative review and new shipper review; 2011–2012), as amended 79 Fed. Reg. 37,714 (Dep't Commerce July 2, 2014) and accompanying Certain Frozen Fish Fillets from [Vietnam]: Issues and Decision Mem. for the Final Results of the Ninth Admin. Review and Aligned New Shipper Review, (Mar. 28, 2014), ECF No. 29–3 ("Final Decision Memo"). The court ordered that, on second remand, Commerce must further explain or reconsider its decision to construct a value for respondent Vinh Hoan's fish oil byproduct rather than to select the best surrogate value for fish oil from the values placed on the record. An Giang II, 41 CIT at ––––, 236 F.Supp.3d at 1358–61.

On second remand, Commerce further explains its determination to construct a surrogate value price for Vinh Hoan's fish oil, and provides further explanation as to why that method is reasonable based on the record and why the resulting value constitutes the best available information for valuing the fish oil byproduct. Commerce has complied with the court's remand order in An Giang II, Commerce's explanation is reasonable, and its findings are supported by substantial evidence. Accordingly, the Second Remand Results are sustained.

BACKGROUND

The court assumes familiarity with the facts of this case as discussed in the two prior opinions, see An Giang II, 41 CIT at ––––, 236 F.Supp.3d at 1354–56 ; An Giang I, 40 CIT at ––––, 179 F.Supp.3d at 1261–62, and here recounts the facts relevant to the court's review of the Second Remand Results.

In the final determination, Commerce selected Indonesian import data under HTS 1504.20.9000 as the best available information to value Vinh Hoan's fish oil byproduct in this review. See Final Decision Memo at 78–86. Commerce explained that it had concerns that the HTS category was too broad because it included values for both refined and unrefined fish oil, and Vinh Hoan's byproduct is solely unrefined fish oil. Id. at 82. Commerce explained that it "finds that the value derived from the Indonesian GTA import data under HTS 1504.20.9000 is unrepresentative of Vinh Hoan's ‘unrefined’ fish oil because this value likely reflects ‘refined’ fish oil prices." Id. at 83. To address its concern about overbreadth, Commerce "capped" the HTS value at a value for unrefined fish oil, calculated using Vinh Hoan's factor of production ("FOP") data, as it had in the eighth review. See id. at 81–83. Commerce explained that it was "capping" the Indonesian import data value for HTS 1504.20.9000 at a value representative of Vinh Hoan's fish oil, derived from a build-up of FOPs used to produce unrefined fish oil. See id. at 82–82. Commerce explained that such a cap was warranted because the import value was greater than the value for whole fish, the main input, and it would be "unreasonable that the [surrogate value] for Vinh Hoan's fish oil byproduct derived from whole fish would be higher than its main input (i.e., whole fish)." Id. at 82.

In An Giang I, the court determined that what Commerce referred to as a "cap" of the Indonesian data was "in fact a rejection of the import data in favor of a [constructed value]." An Giang I, 40 CIT at ––––, 179 F.Supp.3d at 1281–82. The court stated that, until Commerce acknowledged that it was actually constructing a value rather than capping a surrogate value from an existing data source, the court could not review whether Commerce's selection of the Indonesian import data was reasonable because it was not clear whether and how Commerce actually valued Vinh Hoan's fish oil byproduct using the Indonesian import data. Id., 40 CIT at ––––, 179 F.3d at 1282–83. The court noted that,

[a]lthough the court cannot say Commerce unreasonably concluded that Vinh Hoan's fish oil is unrefined fish oil (a low value-added product), Commerce has not explained why it is reasonable to depart from its normal methodology of choosing the best [surrogate value] data source to value respondents' fish oil byproduct.... Commerce may have good reason to go beyond its stated methodology and construct a value instead of choosing the best available [surrogate value] data source on the record to value fish oil. If so, Commerce needs to state what it is doing and explain why this alternative methodology is reasonable so that the court may review Commerce's methodology and determination.

Id. (internal citation omitted). The court remanded Commerce's determination on this issue for the agency to clarify its methodology. See id., 40 CIT at ––––, ––––, 179 F.Supp.3d at 1283, 1285.

On first remand, Commerce continued to refer to its methodology as a "cap." See generally 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 (CIT 2016) at 13–17, 22–26, Feb. 10, 2017, ECF No. 151–1. Commerce again explained that it had "capped" the HTS 1504.20.9000 data at a value for unrefined fish oil based on Vinh Hoan's own FOP data. See id. at 14–15. Commerce again concluded that the HTS data was not representative of Vinh Hoan's unrefined fish oil byproduct because the HTS value was significantly higher than the main input and includes data values for both refined and unrefined fish oil. See id. Commerce explained that, pursuant to its practice, such a cap was appropriate because the HTS data value was higher than the value of the main input, whole live fish, and a surrogate value priced above the value of the main input would be unreasonable. Id. at 14. Commerce explained that "the use of the contemporaneous, recently verified FOP data to produce unrefined fish oil provided by Vinh Hoan, provides a more accurate cap than the [surrogate value] for live whole fish, improves the accuracy of the Department's dumping calculation, and represents the best available information." Id. at 17.

In An Giang II, the court again determined that Commerce had still not explained, or even "squarely acknowledged," An Giang II, 41 CIT at ––––, 236 F.Supp.3d at 1359, that it was using a constructed value rather than selecting a surrogate value for fish oil from the values available on the record. Id., 41 CIT at ––––, 236 F.Supp.3d at 1359–61. The court explained that, although the agency had determined that...