38 I.T.R.D. (BNA) 1145
Ct. Intl. Trade2016Background
- This is a CIT review of Commerce’s final results in the 8th AD administrative review of certain frozen fish fillets from Vietnam (POR Aug 1, 2010–Jul 31, 2011); Commerce treated Vietnam as an NME and selected a surrogate country to value factors of production (FOPs).
- Commerce initially selected Bangladesh preliminarily but chose Indonesia in the Final Results; Vinh Hoan and multiple Vietnamese exporters and U.S. industry parties challenged various surrogate-value (SV) selections, byproduct offsets, glazing weight adjustments, and consignment-sale treatment.
- The court previously remanded on surrogate-country selection, glazing-weight adjustment, and treatment of certain sales as consignment; Commerce issued remand results and the parties commented before the court.
- On remand Commerce retained Indonesia as primary surrogate, adjusted Vinh Hoan’s FOPs to net (non‑glazed) weight, and limited the consignment-treatment to actual consignment sales; Commerce also used Indonesian data or specific price quotes for many SVs but applied a constructed value (cap) to fish oil and took absolute values in a byproduct-offset calculation.
- The court sustained Commerce’s Indonesia selection and most SV choices (labor, financial ratios, inland freight and brokerage/handling, frozen/fresh broken meat, fish waste/belly/skin), and upheld glazing and consignment adjustments; but it remanded (1) Commerce’s use of a constructed value/cap for fish oil (insufficient explanation of departure from import data) and (2) Commerce’s taking of an absolute value in its net byproduct offset calculation, and (3) SV choices for sawdust and rice husk — directing Commerce to reconsider/explain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate-country selection (Indonesia v. Bangladesh) | Indonesia is not economically comparable once 2011 GNI considered; Bangladesh data preferable | Indonesia is economically comparable (2010–11 GNI) and Indonesian SV data superior in quality/specificity | Sustained: Commerce reasonably found Indonesia comparable and data concerns justified selection of Indonesia |
| Valuation of whole fish and non-fish FOPs (specificity/contemporaneity) | Bangladeshi DAM data or other sources are superior for some FOPs; certain Indonesian HTS categories are non-specific or aberrational (sawdust, rice husk) | Indonesian IAS and other Indonesian data are more specific, contemporaneous, and reliable; regulatory preference for primary surrogate country | Mixed: Court sustained many SV selections (labor, financial ratios, inland freight, frozen/fresh broken meat, fish waste/belly/skin) but remanded sawdust and rice husk for Commerce to address detracting record evidence |
| Glazing/net-weight adjustment to FOP usage ratios | Vinh Hoan argues it reported net-weight sales and did not sell glazed product; challenges remand adjustment | Commerce says record supports reporting difference and adjusted FOPs to net-weight; plaintiff failed to raise this in draft remand (no exhaustion) | Sustained: Commerce recalculated on net-weight basis; court declines to consider Vinh Hoan’s new exhaustion-based arguments |
| Fish oil byproduct valuation and byproduct-offset calculation | Vinh Hoan challenges Commerce’s constructed-value cap for fish oil and taking absolute value in net byproduct offset (unexplained departure; effectively added to NV) | Commerce says Indonesian import HTS data include refined oils and import values would be illogically high; constructed cap addresses mismatch; absolute-value step reflects production costs | Remanded: Court finds Commerce did not adequately explain using a constructed value (cap) instead of import data and failed to justify taking absolute value in offset; remand for further explanation or recalculation |
Key Cases Cited
- Viraj Grp., Ltd. v. United States, 343 F.3d 1371 (Fed. Cir. 2003) (agency may adopt position under protest after remand; appellate context on remands)
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir. 2011) (Commerce has broad discretion to choose best available information in NME proceedings)
- Consol. Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir. 2003) (administrative‑remedies/exhaustion principles in trade cases)
- Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir. 2007) (exhaustion doctrine and strictness in trade cases)
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990) (purpose of antidumping statute is to calculate accurate dumping margins; agency discretion in methodologies)
- Parkdale Int’l v. United States, 475 F.3d 1375 (Fed. Cir. 2007) (standards for surrogate financial ratio selection and use of best available information)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 882 F. Supp. 2d 1366 (CIT 2012) (weighing economic comparability against data considerations in surrogate-country selection)