287 F. Supp. 3d 1361
Ct. Intl. Trade2018Background
- Commerce conducted the 11th administrative review (Aug 1, 2013–Jul 31, 2014) of the antidumping duty order on certain frozen fish fillets from Vietnam and selected HVG and TAFISHCO as mandatory respondents. Final margins: HVG $0.41/kg, TAFISHCO $0.97/kg; Vietnam-wide rate $2.39/kg.
- Commerce requested CONNUM-specific (product-characteristic specific) factor-of-production (FOP) data; respondents submitted FOP databases that mixed subject and non-subject forms and did not account for market-specific soaking (added water) variations.
- Commerce found the submitted FOPs distorted, applied facts otherwise available (FA) to HVG and TAFISHCO, and used toller data for certain valuations; Commerce also applied partial adverse facts available (AFA) to TAFISHCO due to two non-cooperating tollers.
- Plaintiffs challenged (1) Commerce’s use of FA for HVG and TAFISHCO, (2) Commerce’s adjustment of HVG’s farming-factor denominator without adjusting the numerator, (3) partial AFA applied to TAFISHCO, and (4) several surrogate-value selections (fish feed, fingerlings, water, fish waste, packing tape).
- The Court sustained Commerce’s use of FA for HVG and TAFISHCO, sustained partial AFA for TAFISHCO, sustained the surrogate-value selections challenged, but remanded Commerce’s calculation of HVG’s farming factors (denominator adjustment without parallel numerator adjustment) for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Commerce applied facts otherwise available to HVG and TAFISHCO for failing to provide CONNUM-specific FOPs and accurate water-soaking data | CONNUM-specific reporting was unreasonable/impossible and past practice did not require it; respondents’ methodologies were reliable | Respondent firms were on notice to report CONNUM-specific data, had opportunities to comply, and their submissions produced distortions | Sustained — FA application supported by record and law; CONNUM requirement reasonable given prior notice and distortions from mixed product forms |
| Commerce adjusted HVG’s farming FOP denominator (shank-equivalent) but did not adjust numerator correspondingly | Adjusting denominator without adjusting numerator inflates farming FOPs; numerator should be converted to shank-equivalent too | Commerce’s conversion was necessary for apples-to-apples comparison; respondent did not adequately raise numerator argument at agency | Remanded — Court found HVG did raise the issue sufficiently and ordered Commerce to reconsider/explain why numerator need not be adjusted or to correct calculation |
| Partial AFA to TAFISHCO because two unaffiliated tollers did not cooperate | TAFISHCO did its best to induce toller cooperation, obtained substitute tollers and provided >80% of tolled product data; tollers were unaffiliated so AFA to TAFISHCO was improper | Although TAFISHCO cooperated, it could have done more to induce cooperation (e.g., refuse to do business with non-cooperative tollers); non-cooperating tollers represented a significant share of production and could benefit from TAFISHCO’s cooperation | Sustained — Commerce reasonably applied partial AFA to TAFISHCO under 19 U.S.C. §1677e(b) to serve deterrence and accuracy interests |
| Selection of surrogate values for fish feed, fingerlings, water, fish waste, and packing tape | Various challenges: fish feed should include sinking feed; fingerling conversion errors in affidavit; water is often free/raw and treated (not purchased); Adib quotes are historical/not bona fide; packing tape GT A HTS data is non-specific/aberrational | Commerce used best available information on the record (contemporaneous, specific, tax/duty exclusive, public, market-average). Respondents failed to supply record evidence to rebut those selections or to populate the record with alternatives | Sustained — Court upheld Commerce’s SV choices for fish feed (floating feed), fingerlings (Rukmono affidavit; exhaustion issue), water (Pam Jaya treated-water), fish waste (2013/14 Adib quotes weighted by components), and packing tape (Indonesian GTA HTS 3919.10 with outlier removed) |
Key Cases Cited
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir.) (defining "best of its ability" standard for adverse inferences)
- Mueller Comercial de Mexico, S. de R.L. de C.V. v. United States, 753 F.3d 1227 (Fed. Cir.) (Commerce may consider deterrence and collateral effects when applying AFA)
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (burden on respondent to build the administrative record)
- Consol. Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir.) (exhaustion of administrative remedies required)
- Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir.) (strict view of administrative exhaustion in trade cases)
- Gerritsen v. Shirai, 979 F.2d 1524 (Fed. Cir.) (agency abuse of discretion standard)