Vinh Hoan Corp. v. United States
2015 Ct. Intl. Trade LEXIS 18
Ct. Intl. Trade2015Background
- This consolidated action challenges Commerce’s final results in the 8th administrative review of antidumping duties on certain frozen fish fillets from Vietnam; Commerce selected Indonesia as the primary surrogate country for valuing NME factors of production (Final Results, amended after ministerial errors).
- Mandatory respondents: Anvifish (margin revised to $2.39/kg) and Vinh Hoan (margin 0.19 USD/kg); separate-rate respondents received an averaged rate; others received adverse rates.
- Major contested agency choices: (1) selection of Indonesia as primary surrogate country (Commerce had chosen Bangladesh at the preliminary stage), (2) valuations for whole live fish and other surrogate values, (3) use of facts available for certain consignment (CCEP) sales, (4) calculation of fish-oil byproduct offsets, (5) inclusion of sample transactions, and (6) whether Commerce should adjust NV/FOP ratios for glazing/net vs. gross weight.
- The court found Commerce’s primary surrogate-country selection contrary to law and unsupported by substantial evidence, granted a voluntary remand for fish-oil byproduct calculation, rejected Commerce’s application of facts-available to all sales to a customer, sustained inclusion of sample transactions, and remanded Commerce’s refusal to adjust Vinh Hoan’s normal value.
- The court directed Commerce to reconsider its surrogate-country choice (including GNI data on the record and weighing relative economic comparability against data quality), to explain or reconsider treating all sales to a customer as consignment sales, and to address the net vs. gross weight (glazing) adjustment issue on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Primary surrogate-country selection (Indonesia vs. Bangladesh) | Commerce ignored relevant 2011 GNI data, failed to compare relative economic comparability, and overly relied on contemporaneity and Indonesian whole-fish data (IAS) | Commerce followed its policy treating OP-list countries as equally comparable and permissibly chose the best data (contemporaneity, specificity, reliability) | Remanded: Commerce must consider the 2011 GNI record evidence, meaningfully weigh relative economic comparability against data-quality criteria, and re-evaluate surrogate selection with a reasoned comparison |
| Use of nonfish FOPs and financial ratios in surrogate choice | Commerce improperly prioritized contemporaneity for nonfish FOPs and relied circularly on the primary surrogate selection to choose financial statements | Commerce says it evaluated many FOPs and used regulatory preference to value from a single country | Remanded: Commerce may consider nonfish FOPs, but cannot rely on contemporaneity alone and must compare financial statements and other criteria without circular reasoning |
| Valuation of whole live fish (IAS vs. DAM data) | DAM (Bangladesh) is more contemporaneous and specific to subject species; concerns DAM may include dead fish; IAS may include non-subject species and be distorted by imports/subsidies | Commerce found IAS more specific/reliable and DAM raised unanswered questions (DAM did not respond to inquiries) | Remanded for further consideration consistent with requirement to weigh relative economic comparability and to address specificity, contemporaneity, broad-market-average, and reliability concerns in a reasoned explanation |
| Fish-oil byproduct offset | Vinh Hoan and intervenors asserted errors in Commerce’s new methodology | Commerce requested voluntary remand to reconsider a methodology used for the first time in the Final Results | Voluntary remand granted for Commerce to reconsider the fish-oil byproduct calculation |
| Facts available for CCEP/consignment sales | Vinh Hoan: Commerce improperly applied facts available to all sales to a customer though only some were consignment sales | Commerce treated the application as a methodological choice, not a ministerial error | Remanded: Commerce must explain or correct its decision to treat all sales to that customer as consignment sales in light of record evidence |
| Inclusion of sample transactions in margin calc. | Vinh Hoan: samples with positive prices should be excluded | Commerce: excludes sales only upon compelling reason; none shown | Sustained: court affirms Commerce’s inclusion of sample transactions |
| Net vs. gross weight (glazing) adjustment to NV/FOP ratios | Catfish Farmers: Commerce must adjust FOP denominators because Vinh Hoan’s U.S. sales were unglazed (net) while FOP ratios used gross denominators including glazed weight, causing an unfair comparison | Commerce argued reported bases were consistent (gross=gross) and relied on past practice and reporting | Remanded: Commerce failed to provide a rational explanation; must reconsider or explain why no adjustment is required to make a fair comparison |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (Commerce has broad discretion to select "best available information")
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir.) (statute’s purpose—accurate margins—limits agency discretion)
- Parkdale Int’l v. United States, 475 F.3d 1375 (Fed. Cir.) (Commerce must aim for accurate dumping margins)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S.) (substantial-evidence standard requires considering evidence that detracts from agency conclusions)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 618 F.3d 1316 (Fed. Cir.) (agency should weigh relative GNI differences when data-quality differences are marginal)
- SKF USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir.) (standards for voluntary remand and agency reconsideration)