An Giang Fisheries Imp. & Exp. Joint Stock Co. v. United States , 317 F. Supp. 3d 1304 ( 2018 )

Slip Op. 18-60
UNITED STATES COURT OF INTERNATIONAL TRADE
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, Before: Claire R. Kelly, Judge
v. Consol. Court No. 14-00109
UNITED STATES,
Defendant,
and
CATFISH FARMERS OF AMERICA ET AL.,
Defendant-Intervenors and
Consolidated Defendant-Intervenors.
OPINION
[Sustaining the U.S. Department of Commerce’s second remand determination in the
ninth antidumping duty administrative review of certain frozen fish fillets from the Socialist
Republic of Vietnam.]
Dated: 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;
Consol. Court No. 14-00109 Page 2
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.
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., Consol. Court No. 14-00109, Slip Op. 17-00082 (July
10, 2017), Sept. 22, 2017, ECF No. 167 (“Second Remand Results”); see also An Giang
Consol. Court No. 14-00109 Page 3
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
Consol. Court No. 14-00109 Page 4
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
Consol. Court No. 14-00109 Page 5
the [surrogate value] for Vinh Hoan’s fish oil by-product 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., 41 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, Consol. Court No. 14-00109, Slip
Consol. Court No. 14-00109 Page 6
Op. 16-55 (June 7, 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 Indonesian import
data for HTS 1504.20.9000 constitutes the best available information, “Commerce does
not actually use the import data for fish oil [under HTS 1504.20.9000 as a surrogate
value],” but instead “builds a constructed value for the fish oil using fish oil FOPs and calls
this value a ‘cap.’” Id., 41 CIT at __, 236 F. Supp. 3d at 1359. The court determined that
Consol. Court No. 14-00109 Page 7
Commerce had, without explanation, deviated from its standard practice of choosing “the
best existing surrogate value data source for fish oil from the alternative sources” on the
record. See id., 41 CIT at __, 236 F. Supp. 3d at 1358. The court remanded again for
the agency to explain why constructing a value from fish oil FOPs, rather than using
alternative available surrogate value data, constitutes the best available information, or
reconsider its determination. Id., 41 CIT at __, 236 F. Supp. 3d at 1360–61.
Commerce issued the Second Remand Results on September 22, 2017. On
second remand, Commerce acknowledged that it constructed a value for the fish oil
surrogate value rather than capping a surrogate value already on the record. Second
Remand Results at 11 n.59 (“Based on the Court’s ruling, we will no longer refer to the
[surrogate value] used to value fish oil as a cap, but instead as a value the Department
calculated to yield a more reasonable result.”). Commerce explained that constructing a
value based on Vinh Hoan’s FOPs provided a more accurate value than any of the other
potential surrogate values on record in this review because it was based on “verified
information submitted from Vinh Hoan’s own books and records,” which is specific,
reliable, and meets the Department’s other selection criteria, while the alternative
surrogate values that had been placed on the record did not. See id. at 13–14. The
agency emphasized that, in this case, building up a value complies with its statutory
mandate to calculate the most accurate dumping margins possible based on the record.
Id. at 11. For these reasons, Commerce explained, it found that the calculated fish oil
surrogate value constitutes the best available information on the record of this review.
Consol. Court No. 14-00109 Page 8
See id. at 2–14. Vinh Hoan’s margin calculation did not change on second remand. Id.
at 2.
JURISDICTION AND STANDARD OF REVIEW
The court continues to have jurisdiction 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), 1 and 28 U.S.C.
§ 1581(c) (2012), which grant the court authority to review actions contesting the final
determination in an administrative review of an antidumping duty order. “The court shall
hold unlawful any determination, finding, or conclusion found . . . to be unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i). “The results of a redetermination pursuant to court remand are also
reviewed ‘for compliance with the court’s remand order.’” Xinjiamei Furniture
(Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014)
(quoting Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587 F.
Supp. 2d 1303, 1306).
DISCUSSION
On second remand, Commerce acknowledges that it constructed a value for Vinh
Hoan’s unrefined fish oil byproduct to be offset in this review. See Second Remand
Results at 11–13. Plaintiff continues to challenge Commerce’s use of that constructed
value, and argues that it was unreasonable to set aside the Indonesian import data for
HTS 1504.20.9000 because that data is not overbroad and its value is not unreasonably
1
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.
Consol. Court No. 14-00109 Page 9
high. See Pl.’s Comments on the Final Results of Redetermination Pursuant to 2nd
Remand at 5–27, Dec. 14, 2017, ECF No. 172 (“Pl.’s Second Remand Comments”).
Defendant responds that constructing a value in this case using FOP data reported by
Vinh Hoan and verified by Commerce resulted in the most accurate surrogate value
available on this record, so it was reasonable for Commerce not to use the Indonesian
HTS 1504.20.9000 data. See Def.’s Resp. Pl.’s Comments on Second Remand
Redetermination at 6–18, Feb. 23, 2018, ECF No. 185 (“Def.’s Second Remand
Comments”). Defendant emphasizes that Commerce determined that the import data for
the Indonesian HTS 1504.20.9000 category would not be a reasonable surrogate value
because the import data is not specific to, and thus not representative of the value of,
Vinh Hoan’s unrefined fish oil. See id. at 5, 9–12, 19.
In non-market economy cases, Commerce obtains the normal value of the subject
merchandise by adding the value of the FOPs used to produce the subject merchandise
together with “an amount for general expenses and profit plus the cost of containers,
coverings, and other expenses.” 19 U.S.C. § 1677b(c)(1). Commerce offsets that figure
with the production costs of any byproducts generated during the production process that
the respondent sold. Commerce values the byproduct offset and other FOPs using “the
best available information regarding the values of such factors in a market economy
country or countries. . . .” 19 U.S.C. § 1677b(c)(1). Commerce’s methodology for
selecting the best available information evaluates data sources based upon their: (1)
specificity to the input; (2) tax and import duty exclusivity; (3) contemporaneity with the
period of review; (4) representativeness of a broad market average; and (5) public
Consol. Court No. 14-00109 Page 10
availability. See Final Decision Memo at 13; Import Admin., U.S. Dep’t Commerce, Non-
Market Economy Surrogate Country Selection Process, Policy Bulletin 04.1 (2004),
available at http://enforcement.trade.gov/policy/bull04-1.html (last visited May 21, 2018).
Commerce’s practice for selecting the best available information to value individual FOPs
favors selecting a data source that satisfies the breadth of its selection criteria where
possible. See Final Decision Memo at 13. Although Commerce has discretion to decide
what constitutes the best available information, see QVD Food Co. v. United States, 658
F.3d 1318, 1323 (Fed. Cir. 2011), Commerce must ground its selection of the best
available information in the overall purpose of the ADD statute, calculating accurate
dumping margins. See Shakeproof Assembly Components, Div. of Illinois Tool Works,
Inc. v. United States, 268 F.3d 1376, 1382 (2001); see also Lasko Metal Prods., Inc. v.
United States, 43 F.3d 1442, 1443 (Fed. Cir. 1994) (“[T]here is much in the statute that
supports the notion that it is Commerce’s duty to determine margins as accurately as
possible, and to use the best information available to it in doing so.”); Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990).
Here, Commerce deviates from its standard methodology of selecting an already-
established value from sources placed on the record. Commerce explains that this
decision is, however, not a deviation from its overall practice “to follow [its] statutory
mandate to select [surrogate values] from the best available information,” which
Commerce emphasizes it has done here by constructing a value using the FOPs placed
on the record by Vinh Hoan. Second Remand Results at 11. Commerce explains that,
because there were no reasonable established surrogate values available, constructing
Consol. Court No. 14-00109 Page 11
a value using the respondent’s own FOP data is preferable in this case as it will result in
a more accurate value for the fish oil byproduct. See id. at 11–14. Commerce states:
The record of this review contained additional information beyond the
sources proffered by the interested parties concerning fish oil, specifically,
all of the FOPs consumed by Vinh Hoan to produce fish oil. Because this
additional information was on the record, we were able to evaluate whether
this information could credibly be used to value fish oil. We reiterate that
we have calculated [surrogate values] using record information in other
cases where the record contains the requisite information to do so, and the
record calculated [surrogate value] information represented the best
available information.
Id. at 11. On this record, Commerce’s decision is reasonable.
Commerce explains that a constructed value would achieve a more accurate
surrogate value than the existing values from sources placed on the record. Second
Remand Results at 13–14. There were six potential surrogate values placed on the
record in this administrative review: five price quotes for fish oil from five different
companies and the GTA import data for Indonesian HTS category 1504.20.9000. Id. at
3. Among the five price quotes, two were from Indonesian companies, two were from
Indian companies, and one was from a Bangladeshi company. Id. On second remand,
Commerce reexamined each of the values to determine whether any would satisfy the
standard selection criteria and accordingly be a reasonable surrogate value. See id. at
4–11. Commerce concluded that none of the five price quotes satisfied more than two of
the selection criteria, and that none were reliable values. See id. at 4–9.
Regarding the HTS data, Commerce determined that, while satisfying the other
four criteria, the data was not specific to Vinh Hoan’s unrefined fish oil because HTS
category 1504.20.9000 covers both refined and unrefined fish oil, such that the value of
Consol. Court No. 14-00109 Page 12
the import data is not representative of Vinh Hoan’s fish oil. Second Remand Results at
9–10. Commerce determined that the data within HTS 1504.20.9000 is not “sufficiently
similar to the fish oil by-product produced by Vinh Hoan,” id. at 9, because that HTS
category covers “unrefined fish oil that is packaged and containerized for international
shipment, as well as high value refined fish oil containing Omega-3 fatty acids,” in addition
to unrefined, unpackaged fish oil such as Vinh Hoan’s. Id. at 9–10. Commerce explained
that this lack of specificity of the HTS import data is concerning and significant on these
facts, where the import data value is high relative to the main input, whole, live fish. Id.
at 10. Given the price disparity between the HTS data and the main input, Commerce
determined that the HTS data is more representative of refined than unrefined fish oil. 2
See id. at 10–11, 16–17. Thus, Commerce concluded that the import data for HTS
2
Commerce also emphasized that the surrogate value derived from the Indonesian HTS
1504.20.9000 data would exceed the value of the main input and of the subject merchandise,
which would be an unreasonable result for this byproduct. Second Remand Results at 10–11. In
response, Plaintiff argues that, in this case, it is not unreasonable for the HTS value to exceed
the value of the main input (whole, live fish) because more fish are required to make one kilogram
of fish oil than one kilogram of fish. See Pl.’s Second Remand Comments at 17–18. As an initial
matter, Defendant contends that this argument was not exhausted before the agency. Def.'s
Second Remand Comments at 17. Plaintiff responds that it has consistently argued in these
proceedings that there is not a rational connection between the value of a live fish and the
byproduct it is producing. See Oral Arg. at 00:13:51–00:18:25, Apr. 11, 2018, ECF No. 198.
Nevertheless, Plaintiff’s argument is unpersuasive. Plaintiff argues that “the fish oil value that will
actually be used for purposes of deducting the by-product offset is not higher than the value of
the main input,” because the correct inquiry is not the value of the byproduct but “the value
applicable to the amount of fish oil obtained from the FOPs used to obtain 1 kg of the subject
merchandise, which will only be a fraction of $3.10/kg.” Pl.’s Second Remand Comments at 18.
Even accepting Plaintiff’s argument as correct, the argument by itself does not undermine
Commerce’s justification for rejecting the HTS import data as unrepresentative and overbroad in
light of the fact that Vinh Hoan’s byproduct is low value, minimally processed, unpackaged,
unrefined fish oil. Commerce did not determine that the value was inappropriate simply because
its value was greater than the main input; instead, Commerce found the data inappropriate
because of the high value in combination with the fact that the heading contained refined fish oil
where Vinh Hoan’s fish oil is unrefined. On these facts, Plaintiff has not demonstrated that
Commerce’s determination to use the constructed FOP value is unreasonable.
Consol. Court No. 14-00109 Page 13
1504.20.9000 is “overly broad and not specific to the low value, unrefined fish oil produced
by Vinh Hoan[.]” Id. at 10.
The record supports Commerce’s determination. Commerce explained that Vinh
Hoan’s “low value, unrefined fish oil” is “physically dissimilar to many of the products
covered” by the heading, and that the value derived from the heading would exceed the
value of the main input and of the subject merchandise. Second Remand Results at 9–
10. Record evidence indicates that Vinh Hoan’s byproduct is unrefined fish oil. See id.
at 9 (citing Commerce Mem. re: Verification of the Sales and [FOP] Response of Vinh
Hoan Corporation, PD 393, bar code 3110870-01 (Dec. 14, 2010), Consol. Court No. 13-
00156). 3 Commerce concluded that, because Vinh Hoan’s fish oil is unrefined and of
lower value, the Indonesian HTS 1504.20.9000 data would constitute an unrepresentative
surrogate value. Id. at 10–11, 13–14. It is reasonable for Commerce to determine that,
on this record, the surrogate value that results from the use of data from HTS category
1504.20.9000 is not representative of the value of Vinh Hoan’s byproduct because many
of the products covered by that category are not sufficiently similar to Vinh Hoan’s
unrefined fish oil. The agency therefore constructed a value using Vinh Hoan’s own
reported FOP data, which it considered would result in a more accurate value. Id. at 13–
14. On this record, Commerce’s determination is reasonable.
Commerce has explained why it deviated from its usual practice and constructed
a value using Vinh Hoan’s FOP data in this review, and the method used by the agency
3
This document is filed on the administrative record of Vinh Hoan Corporation v. United States,
Consol. Court No. 15-00156. See Admin. Record, June 19, 2013, ECF No. 27, Consol. Court No.
13-00156.
Consol. Court No. 14-00109 Page 14
to construct a value in this case is reasonable. Commerce used the respondent’s own
reported FOP data to build up a price that reflects the value of that respondent’s fish oil
byproduct. Second Remand Results at 11–14. These FOPs were provided by the
respondent and verified by the Department. Id. at 13.
Plaintiff contends that Vinh Hoan’s unrefined fish oil is a “value-added product,”
such that a surrogate value (here, the HTS import data) that exceeds the value of the
main input is not an unreasonable category with which to value the byproduct. Pl.’s
Second Remand Comments at 18–23. Defendant contends that, despite this minimal
further processing, it would be unreasonable for the value of the fish oil to exceed that of
the main input. Def.’s Second Remand Comments at 16–17. Whether the product is
value-added does not undermine Commerce’s reasonable determination that the HTS
value covering “unrefined fish oil that is packaged and containerized for international
shipment, as well as high value refined fish oil containing Omega-3 fatty acids,” in addition
to unrefined, unpackaged fish oil such as Vinh Hoan’s, is not specific to Vinh Hoan’s fish
oil. Second Remand Results at 9–10.
Finally, Plaintiff argues that Commerce’s determination on second remand that
Indonesian import data for HTS category 1504.20.9000 is not specific to Vinh Hoan’s fish
oil byproduct is not supported by the agency record because it is inconsistent with the
agency’s prior determinations in these proceedings that the HTS import data was specific.
See Pl.’s Second Remand Comments at 4–5, 14–16. Commerce explained in the second
remand that it in fact had expressed concern early on in the proceedings regarding the
specificity of the HTS import data: “In the [final determination], while we found the
Consol. Court No. 14-00109 Page 15
Indonesia HTS to be contemporaneous, we also found it to be not sufficiently similar to
the fish oil by-product produced by Vinh Hoan.” Second Remand Results at 9; see id. at
16–17 (noting that, in the final determination, “the Department found that HTS
1504.20.90.00 is reflective of refined fish oil prices.” (citing Final Decision Memo at 76–
86)). While the second remand may have been the first time that the agency explicitly
stated that the HTS import data was not specific to Vinh Hoan’s unrefined fish oil,
throughout these proceedings Commerce consistently expressed concern that the HTS
data was overly broad, which was the reason that the agency decided to “cap” the import
value at a value more representative of unrefined fish oil. See Final Decision Memo at
82–84. Indeed, in the final determination, Commerce stated that
the Department finds that the value derived from the Indonesian GTA import
data under HTS 1504.20.90.00 is unrepresentative of Vinh Hoan’s
“unrefined” fish oil because this value likely reflects “refined” fish oil prices.
Nevertheless, the Department will continue to value fish oil using the
Indonesian GTA import data under HTS 1504.20.9000 because it is the
most specific of the available Indonesian HTS categories on the record and,
by its terms, encompasses “unrefined” fish oil. Moreover, the GTA data is
contemporaneous with the POR. And, as stated above, the Department
previously found GTA data to be publicly available, free of taxes and duties,
and representative of broad market averages. However, because of the
concerns articulated [by Commerce with respect to representative value],
the Department will “cap” the price of HTS 1504.20.9000 at the calculated
CV of the FOPs and ratios used by Vinh Hoan to make fish oil, i.e., fish
waste, labor and energy, plus surrogate ratios, to ensure that it is a fully-
loaded fish oil value.
Id. at 83 (citations omitted). This passage clearly reflects a concern about the specificity
of the data, which formed the basis for Commerce’s decision to calculate a value more
representative of the value of the respondent’s fish oil byproduct. Accordingly, Plaintiff’s
Consol. Court No. 14-00109 Page 16
argument that Commerce’s determination on second remand that the HTS import data is
not specific is inconsistent with prior findings on the record is unpersuasive.
CONCLUSION
For the foregoing reasons, the Second Remand Results in Commerce’s ninth
antidumping duty administrative review of certain frozen fish fillets from the Socialist
Republic of Vietnam comply with the court’s order in An Giang II, 41 CIT at __, 236 F.
Supp. 3d at 1361, are supported by substantial evidence, and are in accordance with law.
Therefore, the Second Remand Results are sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:May 24, 2018
New York, New York