This action is before the court on a motion for judgment on the agency record challenging various aspects of the U.S. Department of Commerce's ("Department" or "Commerce") final determination in the eleventh administrative review of the antidumping duty ("ADD") order covering certain frozen fish fillets from the Socialist Republic of Vietnam ("Vietnam"). SeeCertain Frozen Fish Fillets From [Vietnam],
Plaintiffs, An Giang Fisheries Import and Export Joint Stock Company, Cuu Long Fish Joint Stock Company, C.P. Vietnam Corporation, GODACO Seafood Joint Stock Company, International Development and Investment Corporation, Seafood Joint Stock Company No. 4-Branch Dong Tam Fisheries Processing Company, Thuan An Production Trading and Services Co., Ltd., and Viet Phu Foods and Fish Corporation (collectively, "Plaintiffs"), commenced this action pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012).
BACKGROUND
Commerce initiated this eleventh ADD administrative review covering subject imports entered during the period of review ("POR"), August 1, 2013 through July 31, 2014. See Initiation of Antidumping and Countervailing Duty Administrative Reviews,
Commerce preliminarily calculated weighted-average dumping margins of $0.36 per kilogram for HVG,
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 19 U.S.C. § 1516a(a)(2)(B)(iii) and
I. Application of Facts Otherwise Available to HVG and TAFISHCO
Plaintiffs challenge Commerce's decision to apply facts otherwise available to HVG and TAFISHCO as unsupported by substantial evidence and not in accordance with law. Pls.' Br. at 5-31. Plaintiffs claim that Commerce's request for control-number ("CONNUM")
Pursuant to 19 U.S.C. § 1677e(a)(1) and (2), Commerce has the power to use facts otherwise available in making its determinations when it lacks necessary information on the record. See 19 U.S.C. § 1677e(a). However, prior to applying facts otherwise available, Commerce must explain why the information it does have is insufficient and provide, where practicable, the non-complying party an opportunity to comply. 19 U.S.C. § 1677m(d). In non-market economies ("NME"), where Commerce constructs the normal value based on the FOPs used to produce the subject merchandise, Commerce will resort to facts otherwise available if there is insufficient information on the record to value an FOP.
In the final determination, Commerce found that HVG and TAFISHCO failed to report FOPs on a CONNUM-specific basis and failed to accurately report water soaking levels of the fillets sold in the United States. Final Decision Memo at 13-15. As a result, Commerce disregarded the FOP databases submitted by TAFISHCO and HVG, and instead used data prepared by tollers for TAFISHCO that was specific to the subject merchandise.
As to HVG's and TAFISHCO's failure to report an accurate water weight, Commerce learned during this POR "that HVG and [TAFISHCO] apply very different soaking formulae based on the requirements of different markets." Final Decision Memo at 14 (citing [Petitioners'] Comments Re: Prelim. [ADD] Margin Calculations for the HVG Respondents & TAFISHCO at 21-27, PD 230, bar code 3297374-01 (Aug. 10, 2015) ). The variance in soaking formula resulted in frozen subject merchandise bound for the United States being soaked at a lower percentage than frozen merchandise bound for other markets.
make an apples-to-apples comparison between FOPs and sales. More specifically, by expanding the denominator to include products that were soaked to a greater degree, i.e., by adding water to the denominator of all reported FOPs, HVG and [TAFISHCO] underreported all of their FOPs for subject merchandise [s]old to the United States.
Plaintiffs also make several arguments challenging Commerce's request for CONNUM-specific reporting. See Pls.' Br. at 6-23, 27-31. Plaintiffs argue that CONNUM-specific reporting has never been required of it in the past, see Pls.' Br. at 6-9, that Commerce's request for CONNUM-specific data was fundamentally unfair,
During the ninth review, Commerce accepted CONNUM-incompliant data and excused the respondents' non-compliance out of notice concerns.
Plaintiffs also claim that Commerce's identification of product form as a physical characteristic reflected in the CONNUM is commercially irrelevant. See Pls.' Br. at 9-10. It is reasonably discernible that Commerce found that product form is relevant because different product forms have different yields and therefore the lack of CONNUM-specific reporting leads to distortions. See Final Decision Memo at 15 (explaining that the tollers' data was free from distortions caused by the mixing of product forms that have different yields).
Plaintiffs contend that, despite HVG's and TAFISHCO's best efforts, it was not possible for them to comply with Commerce's data request because they do not track sales and FOPs on the basis of the product characteristics identified by CONNUM.
II. Commerce's Application of Facts Available to HVG's Farming Factors
Plaintiffs also challenge Commerce's application of facts otherwise available for HVG's Farming Factors by adjusting the FOP denominator as both unsupported by substantial evidence and not in accordance with law. Pls.' Br. at 31-32. Further, Plaintiffs argue that, even if Commerce correctly adjusted the farming FOP denominator, Commerce should have adjusted the numerator as well. Id. at 32. Plaintiffs claim that Commerce's adjustment to the denominator, without changing the numerator, wrongfully inflates HVG's farming FOPs. See id. Defendant claims that Plaintiffs failed to exhaust their argument as to the numerator, Def.'s Resp. Br. at 32-33, and argue that Commerce's determination to modify the denominator is necessary to ensure a proper comparison of FOPs and U.S. prices. Def.'s Resp. Br. at 32 (citing Final Decision Memo at 17). For the reasons detailed below, the court remands Commerce's decision to adjust HVG's farming FOP denominator without making a parallel adjustment to the numerator.
The basis for Commerce's decision to apply facts otherwise available to HVG's farming factors, see Final Decision Memo at 16-17, and Plaintiffs' challenge to that decision are identical to the basis of, and Plaintiffs' challenge to, Commerce's demand for CONNUM-specific reporting. See Pls.' Br. at 31-32. Specifically, Commerce explained that respondents' reported data was distorted because they included non-subject merchandise in the denominator that had different yields and fillets that have greater weight gain due to soaking in preservatives. Final Decision Memo at 17; see id. at 13-15. Commerce's decision to apply facts otherwise available with respect to HVG's farming factors is supported by substantial evidence.
In applying facts otherwise available, Commerce resorted to using data from tollers. Final Decision Memo at 16-17. However, the processing FOPs in the tollers' data are reported on a subject merchandise basis, while the farming FOPs, as reported by HVG, are reported on a whole live fish harvested basis. See id. at 17. To remedy the unparalleled denominators, Commerce converted HVG's denominator, which was based on whole live fish harvested, by what Commerce called, the "shank equivalent conversion factor." Id. Commerce explained the conversion factor as "simply the whole live fish to subject merchandise (shank fillets) FOP that is used for the processing factors [.]"
Defendant argues that although HVG now argues that Commerce's changes to the denominator would require a modification to the numerator, HVG did not actually raise the argument at the agency level, and therefore, HVG's argument has not been exhausted. Def.'s Resp. Br. at 32 (citing [Respondents'] Case Br. at 20-21, PD 344, bar code 3441848-01 (Fed. 12, 2016) ("Respondents' Agency Case Br.").
[t]he reason the adjustment methodology does not make since [sic] is because it incorrectly assumes that the reported farming FOPs were only consumed to raise the [ [ ] ] kg of the so-called shank equivalent live fish. However, to the contrary, the reported farming FOP were consumed to raise the total POR harvested fish-and not just the shank equivalent fish. Accordingly, the appropriate denominator for Agifish's farming FOP is the total harvested fish quantity of [ [ ] ] kg.
Respondents' Agency Case Br. at 26 (emphasis omitted). In their brief before the agency, Plaintiffs specifically recognize that the farming FOPs in the numerator are overstated, when compared to Commerce's adjusted denominator, because the numerator contains data for all farming factors consumed in raising the total number of harvested fish, across all of HVG's companies, during the POR. See id. Defendant's only response to Plaintiffs' argument is that Plaintiffs fail to support their position that Commerce's analysis leads to distortions or that adjusting the numerator would resolve such distortions. Def.'s Resp. Br. at 31-32. Therefore, the issue is remanded to Commerce for further explanation or consideration.
III. Application of Partial AFA to TAFISHCO
Plaintiffs challenge Commerce's decision to apply as partial AFA the Vietnam-wide rate of $2.39/kg to calculate TAFISHCO's dumping margin as contrary to law and unsupported by substantial evidence. Pls.' Br. at 33-36; see also Final Results,
In the final determination, Commerce applied AFA to TAFISHCO's unaffiliated Toller A
Pursuant to 19 U.S.C. § 1677e(a), (b) Commerce may use facts otherwise available and may subsequently apply an adverse inference to those facts if it "finds that in interested party has failed to cooperate by not acting to the best of its ability[.]" See 19 U.S.C. § 1677e(a), (b). "The statute does not provide an express definition of 'the best of its ability.' " Nippon Steel Corp. v. United States,
Plaintiffs do not dispute that Tollers A and B failed to cooperate. See Pls' Br. at 34-35 (providing a history of correspondence between TAFISHCO and the two unaffiliated tollers to secure the tollers' cooperation, ultimately culminating in failure). Plaintiffs, however, claim that record evidence demonstrates their very best efforts in attaining the tollers' cooperation.
IV. Commerce's Analysis of Specific Surrogate Values
Plaintiffs challenge Commerce's SV data selections for fish feed, fingerlings, packing tape, water, and fish waste by-products. See Pls.' Br. at 36-54. Defendant refutes all of these challenges and argues that Commerce's final determination should be sustained in all respects. See Def.'s Resp. Br. at 39-53. For the reasons that follow, the court sustains Commerce's SV selections for fish feed, fingerlings, water, fish waste by-product, and packing tape.
A. Legal Framework
In antidumping proceedings involving non-market economies ("NME"), Commerce generally calculates normal value using the FOPs used to produce the subject merchandise and other costs and expenses. 19 U.S.C. § 1677b(c)(1). Commerce will value respondents' FOPs using the "best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by [Commerce]." 19 U.S.C. § 1677b(c)(1)(B). To the extent possible, Commerce uses FOPs from market economy countries that are: "(A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of comparable merchandise." 19 U.S.C. § 1677b(c)(4). Commerce's regulatory preference is to "value all factors in a single surrogate country."
B. Fish Feed
Plaintiffs challenge Commerce's decision to value fish feed using prices for floating feed only, claiming that by doing so Commerce failed to use the most specific value and its decision was not in accordance with law. Pls.' Br. at 36-39. Defendant argues that record evidence supports Commerce's decision to use Indonesian prices for floating fish feed, and that "HVG cannot now claim that Commerce's determination was not specific to its input," as HVG "failed to build the record" demonstrating its use of any other type of fish feed. Def.'s Resp. Br. at 42 (citations omitted). The court agrees with the Defendant.
In the final determination, Commerce valued HVG's pangasius feed using floating feed prices because Commerce found those prices specific to fish feed consumed during the POR. Final Decision Memo at 35. Commerce found that HVG consumed floating pellets during the POR, based on usage guidance HVG submitted, HVG's website, and statements HVG made in its brief before the agency.
C. Fingerlings
Plaintiffs challenge Commerce's use of the 2012 affidavit from Dr. Djumbuh Rukmono, an official from the Indonesian Ministry of Marine Affairs and Fisheries. See Pls.' Br. at 40-42; [Petitioners'] Surrogate Country Comments & Submission of Proposed Factor Values at Ex. I-10B, PD 175, bar code 3278422-05 (May 26, 2015) ("2012 Rukmono Affidavit"). Plaintiffs claim that the 2012 Rukmono Affidavit contains "significant errors in the conversion of fish lengths-to-weights" and is therefore "not based on record evidence[.]" Pls.' Br. at 40. Defendant argues that HVG failed to exhaust this argument below and should be precluded from raising it now. Def.'s Resp. Br. at 43 (citing Respondents' Agency Case Br. at 28-29). Defendant-Intervenors' join in opposition. Def.-Intervenors'
If a party fails to exhaust available administrative remedies before the agency, " 'judicial review of Commerce's actions is inappropriate.' " See Consol. Bearings Co. v. United States,
In its brief to the agency, HVG did not contest the quality of the data in the 2012 Rukmono Affidavit, but only asked that Commerce instead use the 2013/14 affidavit from the same source for the final results, as it was contemporaneous with the POR. See Respondents' Agency Case Br. at 28-29; see generally [Petitioners' Second SV] Submission at Ex. I-2, PD 209, bar code 3292359-01 (July 20, 2015) (reproducing the 2013/2014 Rukmono Affidavit). It is only now, before this court, that Plaintiffs claim the data in the 2012 Rukmono Affidavit wrongfully computes prices per fingerling length. Pls.' Br. at 40-42, Exs. 1, 2. Absent exceptional circumstances, it would be inconsistent with the purposes of the exhaustion doctrine to require Commerce to explain a challenge to its findings that was not raised at the administrative level. See Consol. Bearings,
D. Water
Plaintiffs challenge Commerce's decision to value the respondents' water input using the value for treated water from Pam Jaya, an Indonesian water utility company. Pls.' Br. at 46-50. Plaintiffs argue that record evidence demonstrates that "[both Indonesian and Vietnamese subject merchandise] producers do not purchase ready-to-use water for their production activities." Id. at 46 (emphasis omitted); see also [Respondents'] Surrogate Values Submission at Ex. 32-3, PD 170, bar code 3278288-03 (May 22, 2015) ("Soetrisno Letter") (containing a copy of a letter from the Director of Aquaculture Fisheries, Coco Kokarkin Soetrisno, providing information regarding water usage practices of patin farmers and producers in Indonesia).
In the final determination, Commerce explains that its "practice is to value all inputs consumed in the production of the merchandise under consideration [,]" even if the FOP is obtained at no cost. Final Decision Memo. at 39 (citing Issues and Decision Memorandum for the Final Results
Commerce considered, but was not persuaded by, the Soetrisno Letter, which speaks of general practices of patin farmers and producers in Indonesia but does not identify individual companies who are able to pump water for free, either from a well or river. See Final Decision Memo at 39; see also Soetrisno Letter. It is reasonably discernible that Commerce did not find the Soetrisno Letter compelling because it addresses general practices within Indonesia and did not constitute substantial evidence that surrogate companies in Indonesia pump water at no cost. Final Decision Memo at 39. Therefore, Commerce's decision to value water on the basis of the Pam Jaya data is supported by substantial evidence.
E. Fish Waste By-Product
Plaintiffs challenge, as flawed, Commerce's decision to value fish waste by-product using data Commerce obtained in 2015 from the company Adib Food Supplies, which provides prices for the period of 2013-2014 ("2013/14 Adib price quotes"). Pls.' Br. at 50-54. Plaintiffs argue that this data is not a price quote, but rather historical data.
Commerce explained that the 2013/14 Adib price quotes are more specific because they cover the full range of fish waste by-products sold by TAFISHCO. See Final Decision Memo at 51. In the final determination, Commerce states that TAFISHCO defines its food waste as "including head, bone, blood, [and] skin."
Plaintiffs argue that the 2013/14 Adib price quotes are "post facto-prepared historical price lists," Pls.' Br. at 51, and not commercial offers to sell.
Plaintiffs also argue that "even if Commerce's data source is appropriately used, Commerce incorrectly applied it" to TAFISHCO. Pls.' Br. at 52. Specifically, Plaintiffs challenge what Commerce determined would be classifiable as fish waste by-product. Plaintiffs claim that Commerce improperly limited TAFISHCO's fish waste to head, bone, skin, and blood.
Commerce then looked at what data was available on the record for head, bone, skin and blood. See [SVs] for the Final Results [Memo] at 1-2, PD 373, bar code 3451526-01 (Mar. 18, 2016) ("Final SV Memo"). Commerce explained that because there were "no surrogate values on the record for fish blood," it did not include fish blood in its SV calculations.
valued the fish wastes reported by [TAFISHCO] using prices for fish head and fish skin.... [and subsequently] weighted these prices by record information found in the verification reports which indicate that the amount of fish skin produced from a fillet, is approximately ten percent of the fish waste produced.
Final SV Memo at 2. Plaintiffs do not raise an argument disputing the weight afforded to fish skin. Commerce's valuation of fish waste by-product using 2013/14 Adib price quotes is therefore supported by substantial evidence.
F. Packing Tape
Plaintiffs challenge Commerce's selection of Indonesian Global Trade Atlas ("GTA") import data under the Harmonized Tariff Schedule ("HTS") 3919.10 to value packing tape as unsupported by substantial evidence, and as contrary to law. Pls.' Br. at 42-46. Specifically, Plaintiffs
In the final determination, Commerce continued to value packing tape using Indonesian GTA import data under HTS 3919.10, see Final Decision Memo at 45, with one adjustment-it removed the average unit value ("AUV") from Switzerland because it was "significantly higher as compared to other countries' data on the record."
In the final determination, Commerce explained that respondents did not meet their burden of demonstrating that HTS 3919.10 contained aberrational data. Final Decision Memo at 46. Plaintiffs point to the fact that the average unit values ("AUVs") in the import data vary greatly "from a high of IDR 21,946,194/kg (Switzerland) to a low of IDR 32,738/kg (Malaysia)." Pls.' Br. at 44. Commerce looked at packing tape data from other countries on the surrogate country list and compared it to HTS 3919.10. Final Decision Memo at 46. It found that the price difference was "not so large as to demonstrate an aberration with the current POR's data for HTS 3919.10."
CONCLUSION
The court remands Commerce's application of facts otherwise available to HVG's farming factors. The court sustains the Final Results in all other respects. In accordance with the foregoing, it is
ORDERED that Commerce's calculation of HVG's farming factors is remanded
ORDERED that Commerce shall file its remand redetermination with the court within 60 days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments on the remand redetermination; and it is further
ORDERED that the parties shall have 30 days to file their replies to comments on the remand redetermination.
Notes
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2012 edition.
Although 19 U.S.C. § 1677e(a) -(b) and
Respondent in the underlying review Can Tho Import-Export Joint Stock Company commenced the action Can Tho Import-Export Joint Stock Company v. United States, Court No. 16-00071 ("Court No. 16-00071") to challenge Commerce's determination that it is not entitled to a separate rate. See Compl. at ¶¶ 1, 14, 20, May 4, 2016, ECF No. 8, Can Tho Import-Export Joint Stock Company v. United States, Court No. 16-00071. Court No. 16-00071 was later consolidated under An Giang Fisheries Import and Export Joint Stock Company v. United States, Consol. Court No. 16-00072 ("Consol. Court No. 16-00072"). See Scheduling Order and Order on Consolidation, Aug. 3, 2016, ECF No. 22. On November 14, 2017, after a period of briefing, this court ordered that Court No. 16-00071 be severed from Consol. Court No. 16-00072, and that Court No. 16-00071 be stayed pending the final disposition of all challenges in An Giang Fisheries Import and Export Joint Stock Company et al. v. United States, Consol. Court No. 15-00044, and all challenges in the present action. Mem. & Order at 12-13, Nov. 14, 2017, ECF No. 85.
On July 5, 2016, Defendant submitted indices to the confidential and public administrative records, which can be found at ECF Nos. 20-4 and 20-5, respectively. See Administrative Record, July 5, 2016, ECF Nos. 20-4-5. All further references to documents from the administrative records are identified by the numbers assigned by Commerce in these administrative records.
HVG includes An Giang Fisheries Import and Export Joint Stock Company, as well as other exporters of subject merchandise. Prelim. Results,
Commerce also calculated a weighted-average dumping margin of $0.69 per kilogram for Plaintiffs C.P. Vietnam Corporation, Cuu Long Fish Joint Stock Company, GODACO Seafood Joint Stock Company, Seafood Joint Stock Company No. 4-Branch Dong Tam Fisheries Processing Company, and Viet Phu Foods and Fish Corporation. Final Results,
"CONNUM" are control-numbers created by Commerce and specific to the subject merchandise under review. They are unique because they identify the key physical characteristics that are commercially meaningful to the U.S. market and have an impact on sale price and cost of production of the subject merchandise. See Final Decision Memo at 10 (citing e.g., Large Residential Washers from the People's Republic of China [ ("PRC") ],
Commerce focuses on the FOPs utilized in production of the subject merchandise to meet its statutory obligations under 19 U.S.C. § 1677b(a) and (c)"to compare [normal values] to U.S. prices on an apples-to-apples basis[.]" Final Decision Memo at 10 (citing 19 U.S.C. § 1677b(a), (c) ).
When Commerce investigates companies operating within NME countries, it requires respondents to provide to Commerce the FOPs associated with each CONNUM. Final Decision Memo at 10-11 (citation omitted). For the subject merchandise here, the CONNUM included species, product form, product coating, product size, frozen form, preservatives, and net weight factor. See Suppl. Questionnaire Sent to HVG Apr. 2015 at 3-4.
Commerce's final determination references two related, but distinct, distortions caused by the respondents' failure to track FOPs by product form. See Final Decision Memo 13-15. The first distortion is the inclusion of non-subject merchandise in the denominator, which Commerce explains causes distortions because fillets and whole fish have very different yields.
Commerce presented HVG and TAFISHCO with two opportunities to comply and provide Commerce with the requested information. Final Decision Memo at 11. Respondents, however, provided an alternative methodology that failed to account for the water weight of the product,
Specifically, in the final determination to the ninth administrative review, Commerce explained that it would not implement the requirement of CONNUM-specific reporting because respondents would not have known of the need to maintain their records on a CONNUM-specific basis until "eight months after the conclusion of the POR for [the ninth administrative] review." Ninth Admin. Review IDM at 74. However, Commerce went on to remark that, "[f]or all future reviews, the Department intends to require Vinh Hoan and other respondents to report its FOPs on a CONNUM-specific, product-specific, or at a minimum, glazed- and unglazed-specific basis."
Plaintiffs also claim that despite "an exceedingly similar fact pattern on CONNUM-specificity [in the tenth administrative review of the ADD Order ], the issue [of CONNUM compliance] was not even raised by the parties (including Petitioners and Commerce) in the final results." Pls.' Br. at 8 (citing Certain Frozen Fish Fillets from [Vietnam]: Issues and Decision Memorandum for the Final Results of the Tenth [ADD] Administrative Review; 2012-2013, A-552-801, (Jan. 7, 2015), available at http://ia.ita.doc.gov/frn/summary/vietnam/2015-00649-1.pdf (last visited (Feb. 8, 2018) ). Notwithstanding the lack of discussion of CONNUM in the tenth administrative review of the ADD Order, Plaintiffs were notified of Commerce's preference for CONNUM-specific reporting and had enough time to come into compliance.
Plaintiffs rely on cases such as Skidmore v. Swift & Co., United States v. Mead Corp., and NSK Ltd. v. United States, to argue that because deference to an agency depends on the reasonableness of the justification for deviation, and here, Commerce reversed one of its practices, the agency's actions should not be afforded deference. Pls.' Br. at 8-9 (citing United States v. Mead Corp.,
Plaintiffs also argue that "product size" is commercially irrelevant. Pls.' Br. at 9-13. In the final determination, Commerce agreed with respondents that product size "did not impact [HVG and TAFISHCO's] cost accounting," and specifically stated that it would not require CONNUM-specific data for product size. Final Decision Memo at 15.
Plaintiffs argue that it was impossible for it to report on a CONNUM-specific data given the timing of Commerce's request, i.e., the supplemental questionnaires were issued well beyond the POR, and requested "data that would have had to have been collected well more than a year prior." Pls.' Br. at 13; see id. at 13-17. However, Plaintiffs have been on notice since the eighth administrative review of the ADD Order. See Eighth Admin. Review IDM at 44. Further, at the outset of this review, Commerce requested CONNUM-specific reporting of respondents' FOPs and in two follow-up questionnaires. See Suppl. Questionnaire Sent to HVG Apr. 2015 at 5-6; Suppl. Section A, C, & D Questionnaire [Sent to HVG] at 4-5, PD 223, bar code 3295664-01 (Jul. 31, 2015); [TAFISHCO] Suppl. Section A, C, & D Questionnaire at 8-9, PD 143, bar code 3269666-01 (Apr. 9, 2015); Second Suppl. Sections C & D Questionnaire [Sent to TAFISHCO] at 4-7, bar code 3295673-01 (Aug. 3, 2015); see, e.g., Antidumping Questionnaire at D-2 (questionnaire issued to HVG). Plaintiffs' reliance on Certain Activated Carbon from the [PRC] for the proposition that Commerce has, in the past, recognized the unfairness of "impos[ing] a previously un-enforced CONNUM-specificity requirement," is likewise misplaced. Pls.' Br. at 14 (citing Certain Activated Carbon from the [PRC],
Commerce used a conversion factor reported by pangasius producers who are also tollers for Plaintiffs. Final Decision Memo at 16 (citations omitted).
Defendant's citation directs the reader to the section of respondents' brief addressing the CONNUM factors. However, respondents' brief to the agency includes a separate section addressing farming factors and Commerce's methodology in converting the denominator on a shank-equivalent basis. Respondents' Agency Case Br. at 25-27.
[ [ ] ]
[ [ ] ]
TAFISHCO's unaffiliated tollers are interested parties under
Plaintiffs argue that Commerce's decision to apply partial AFA is contrary to Commerce's practice, citing two prior determinations in support of that claim. Pls.' Br. at 35-36 (citing Issues and Decision Memorandum for the Final Determination in the [ADD] Investigation of Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the [PRC] at 76-78, A-570-979, (Oct. 9, 2012), available at http://ia.ita.doc.gov/frn/summary/prc/2012-25580-1.pdf (last visited Feb. 8, 2018) ("Solar Cells IDM"); Small Diameter Graphite Electrodes from the [PRC]: Issues and Decision Memorandum for the Final Results of the First Administrative Review of the [ADD] Order at 14-17, A-570-929, (Sept. 6, 2011), available at http://ia.ita.doc.gov/frn/summary/prc/2011-23357-1.pdf (last visited Feb. 8, 2018) ("Electrodes IDM") ). However, in Solar Cells IDM, Commerce made specific findings as to the percentage the missing data represented and concluded that because "the non-reported production quantities [i.e., 0.67 percent] account for a small portion of the FOPs[,]" and there was other reliable data on the record, Solar Cells IDM at 77, a finding of AFA was not appropriate for the unreported data.
Further citations to the Code of Federal Regulations are to the 2014 edition.
Plaintiffs contend that, by relying on floating fish feed prices only, Commerce excluded data for three protein levels and therefore had to average other data in their place. Pls.' Br. at 39 (citing [SVs] for the Final Results [Memo] at 2, PD 373, bar code 3451526-01 (Mar. 18, 2016) ). Plaintiffs claim that the need to use the averaging method demonstrates that Commerce did not use the best available information.
Plaintiffs also claim that Commerce abused its discretion by not specifically asking whether only floating fish feed was used. See Reply of [Pls.'] to Def. & Def.-Intervenor's Resps. Pls.' Mots. J. Upon Agency R. at 4, Sept. 8, 2017, ECF No. 56; Pls.' Br. at 38-39. Commerce abuses its discretion when its decision "is clearly unreasonable, arbitrary, or fanciful ... is based on an erroneous conclusion of law ... rests on clearly erroneous fact findings[,] or follows from a record that contains no evidence on which the [agency] could rationally base its decision." See Gerritsen v. Shirai,
Plaintiffs claim that "usage guidelines" represent recommended practices, and should not be used to infer that HVG "only used floating fish feed during the [POR]." Pls.' Br. at 38 (emphasis in original). To bolster their position, Plaintiffs point to record evidence "from the Ratna Sari Fish Farm & Poultry Shop that demonstrates that [the shop] sold both floating and sinking [pangasius] fish feed in Indonesia during the [POR]."
Patin and pangasius are used interchangeably by the parties to refer to the subject merchandise at issue here.
Plaintiffs also argue that Commerce only critiqued the July 2015 Adib price quote as being not specific and claim that critique was inapplicable to the April 2015 Adib price quote. Pls.' Br. at 52 (citing [An Giang & TAFISHCO] Final Direct [SV] Submission at Ex. 6-C, PD 204, bar code 3291951-02 (July 17, 2015) (reproducing a copy of the July 13, 2015 Adib price quote); [An Giang & TAFISHCO] Surrogate Values Submission at Ex. 11-D, PD 168, bar code 3278288-01 (May 22, 2015) (reproducing the Apr. 10, 2015 Adib price quote for fish waste) (also reproduced as Ex. 5 in Pls.' Br.) ). Plaintiffs do concede that the April 10, 2015 Adib price quote is not contemporaneous. Pls.' Br. at 52. In the final determination, Commerce explained that, "[a]ll other things being equal, [it] prefers contemporaneous [SV] information to non-contemporaneous [SV] information." Final Decision Memo at 51 (citation omitted).
Plaintiffs argue that Indonesian GTA data for HTS 3919 is more specific to the input used by HVG as "[t]his value is much more in line with actual packing tape prices in Indonesia[.]" Pls.' Br. at 45 (citing [An Giang &TAFISHCO] Surrogate Values Submission at Ex. 17-A, PD 169, bar code 3278288-02 (May 22, 2015) ). As Commerce explained in the final determination, HTS 3919 "encompasses HTS 3919.10, but is less specific [because] it covers larger rolls of adhesive plastics ... [and] contains the very [Swiss] data Respondents argue is aberrational." Final Decision Memo at 45.
Plaintiffs also argue that there was "better data on the record" in the form of price quotes generated by the Indonesian company, Adib Food Supplies. Pls.' Br. at 45-46. Plaintiffs claim that the Adib Food Supplies' price quotes are reliable, as the company is reputable and both Commerce and petitioners have relied upon its data for SV information. Id. at 46. In the final determination, Commerce addressed the Adib price quote, explaining that although input specific, publicly available and tax and duty free, "it reflects the experience of [a] single company and, thus, is not representative of a broad market average." Final Decision Memo at 46. Additionally, the quote "is not contemporaneous with the POR." Id. Comparatively, Commerce found Indonesian import data under HTS 3919.10 contemporaneous, publicly available, representative of a broad market average and tax and duty free. Id. at 45.