An Giang Fisheries Imp. & Exp. Joint Stock Co. v. United States , 333 F. Supp. 3d 1381 ( 2018 )

Slip Op. 18-118
UNITED STATES COURT OF INTERNATIONAL TRADE
AN GIANG FISHERIES IMPORT AND EXPORT
JOINT STOCK COMPANY ET AL.,
Plaintiffs,
v.
Before: Claire R. Kelly, Judge
UNITED STATES,
Court No. 16-00072
Defendant,
and
CATFISH FARMERS OF AMERICA ET AL.,
Defendant-Intervenors.
OPINION
[Sustaining the U.S. Department of Commerce’s remand redetermination in the eleventh
antidumping duty administrative review of certain frozen fish fillets from the Socialist
Republic of Vietnam.]
Dated: September 12, 2018
Matthew Jon McConkey, Mayer Brown LLP, of Washington, DC, for 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.
Kara Marie Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, 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 Kristen McCannon,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Court No. 16-00072 Page 2
James R. Cannon, Jr. and Jonathan Mario Zielinski, Cassidy Levy Kent (USA) LLP, of
Washington, DC, for 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.
Kelly, Judge: Before the court is the U.S. Department of Commerce’s
(“Department” or “Commerce”) remand redetermination filed pursuant to the court’s order
in An Giang Fisheries Import and Export Joint Stock Company v. United States, 42 CIT
__, 287 F. Supp. 3d 1361 (2018) (“An Giang I”). See Final Results of Redetermination
Pursuant to An Giang Fisheries Import and Export Joint Stock Company, et al. v. United
States, Court No. 16-00072, Slip Op. 18-10, May 31, 2018, ECF No. 104 (“Remand
Results”); see also An Giang I, 42 CIT at __, 287 F. Supp. 3d at 1380–81.
In An Giang I, the court remanded for further explanation or reconsideration
Commerce’s decision to adjust the denominator and not the numerator when calculating
Hung Vuong Group’s (“HVG”) farming factors of production in the final determination in
the eleventh antidumping duty (“ADD”) administrative review of certain frozen fish filets
from the Socialist Republic of Vietnam (“Vietnam”). See An Giang I, 42 CIT at __, 287 F.
Supp. 3d at 1371–72, 1380–81; see also Certain Frozen Fish Fillets From [Vietnam], 81
Fed. Reg. 17,435 (Dep’t Commerce Mar. 29, 2016) (final results and partial rescission of
[ADD] administrative review; 2013–2014) (“Final Results”) and accompanying Certain
Frozen Fish Fillets from [Vietnam]: Issues and Decision Memorandum for the Final
Results of the Eleventh [ADD] Administrative Review; 2013–2014, A-552-801, (Mar. 18,
2016), ECF No. 20-3 (“Final Decision Memo”); see generally Certain Frozen Fish Fillets
From [Vietnam], 68 Fed. Reg. 47,909 (Dep’t Commerce Aug. 12, 2003) (notice of [ADD]
order).
Court No. 16-00072 Page 3
On remand, Commerce explains that although it intended to first divide the farming
factors of production (“FOP”) by the amount of harvested whole live fish and then apply
the shank equivalent conversation factor, for the Final Results it reversed the calculations,
making it appear that Commerce had incorrectly applied the shank equivalent conversion
factor. See Remand Results at 6 (citing Final Results Analysis Memo for An Giang
Fisheries Import and Export Joint Stock Company and the [HVG] at Attach. 5, CD 386,
bar code 3451921-01 (Mar. 18, 2016) (“Final Analysis Memo”)). Commerce contends
that on remand it applied the calculations as it had originally intended and that the
resulting farming FOP amounts remain the same. See id. at 4, 6–7. For the following
reasons, Commerce has complied with the court’s remand order in An Giang I,
Commerce’s determination is in accordance with law and supported by substantial
evidence, and the court sustains the Remand Results.
BACKGROUND
The court assumes familiarity with the facts of this case as discussed in the prior
opinion, see An Giang I, 42 CIT at __, 287 F. Supp. 3d 1361, 1365–66, and here restates
the facts relevant to the court’s review of the Remand Results. In the eleventh
administrative review, Commerce reviewed mandatory respondents HVG and Thuan An
Production Trading and Services Co., Ltd. (“TAFISHCO”). See Selection of Respondents
for Indiv. Review at 1, 4–7, PD 33, bar code 3240494-01 (Nov. 7, 2014); Second Selection
of Respondent for Individual Review, PD 67, bar code 3244597-01 (Dec. 1, 2014)
(explaining that review of the Vinh Hoan Corporation is rescinded and that in its stead
Court No. 16-00072 Page 4
Commerce selects TAFISHCO as a mandatory respondent).1 Pertinent here, in the final
determination, Commerce applied facts otherwise available to calculate HVG’s farming
FOPs, which were reported on a subject merchandise basis. See Final Decision Memo
at 16–17.
In An Giang I, the court sustained in part and remanded in part Commerce’s
determination in the eleventh administrative review of the subject merchandise.2 See An
Giang I, 42 CIT at __, 287 F. Supp. 3d at 1380–81. The court remanded Commerce’s
calculation of HVG’s farming FOPs. See id. The court determined that Commerce failed
to explain why it did not adjust the numerator of HVG’s farming FOPs, that were reported
on a whole live fish harvested basis, by “shank equivalent conversion factor,” as it did for
the denominator. Id., 42 CIT at __, 287 F. Supp. 3d at 1370–71. However, the court
sustained Commerce’s reliance on facts otherwise available to calculate HVG’s farming
FOPs. See id., 42 CIT at __, 287 F. Supp. 3d at 1371.
Commerce filed the Remand Results on May 31, 2018. 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
1
On July 5, 2016, Defendant submitted indices to the public and confidential administrative
records, which can be located on the docket at ECF Nos. 20-4–5. On June 14, 2018, Defendant
submitted indices to the public and confidential administrative records to the remand portion of
these proceedings. The indices to the remand redetermination are located on the docket at ECF
Nos. 105-2–3. All further references to administrative record documents are identified by the
numbers assigned by Commerce in these indices, unless otherwise specified.
2
Specifically, in An Giang I the court sustained Commerce’s application of facts otherwise
available to HVG and TAFISHCO, see An Giang I, 42 CIT at __, 287 F. Supp. 3d 1367–71, and
Commerce’s application of partial facts otherwise available with an adverse inference to
TAFISHCO. See id., 42 CIT at __, 287 F. Supp. 3d at 1372–74. Further, the court also sustained
Commerce’s surrogate value selections for fish feed, fingerlings, water, fish waste by-product,
and packing tape. See id., 42 CIT at __, 287 F. Supp. 3d at 1374–80.
Court No. 16-00072 Page 5
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, did not file comments on the draft
remand results with Commerce and did not file comment on the Remand Results with the
Court. Defendant-Intervenors, Catfish Farmers of America; America’s Catch, Alabama
Catfish Inc., Heartland Catfish Company, Magnolia Processing, Inc., and Simmons Farm
Raised Catfish, Inc., were the only party to comment on the draft remand results and the
final Remand Results, and indicate that they agree with Commerce’s redetermination.
See Def.-Intervenors’ Comments on Remand Redetermination, July 2, 2018, ECF No.
108; see also Remand Results at 7–8. No party challenges the Remand Results.
JURISDICTION AND STANDARD OF REVIEW
The court has 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) and 28 U.S.C. § 1581(c) (2012).
Commerce’s antidumping determinations must be in accordance with law and supported
by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i) (2012). “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 (2008)).
DISCUSSION
In An Giang I, the court remanded for further explanation or reconsideration
Commerce’s calculation of HVG’s farming FOPs. See An Giang I, 42 CIT at __, 287 F.
Supp. 3d at 1371–72. Specifically, the court determined that although Commerce’s
Court No. 16-00072 Page 6
decision to rely on facts otherwise available was in accordance with law and supported
by substantial evidence, Commerce did not explain why in calculating HVG’s farming
FOPs it only applied the “shank equivalent” conversation factor to the denominator and
did not make a parallel adjustment to the numerator. See id. For the following reasons,
Commerce’s Remand Results are sustained.
In the final determination, Commerce relied on data prepared by tollers as facts
otherwise available to calculate HVG’s farming FOPs. See Final Decision Memo at 16–
17. The data provided by tollers was on a subject merchandise or shank basis, while
HVG’s data was on a whole live fish harvested basis. Id. Accordingly, and because
Commerce’s standard practice is to allocate FOPs over the total quantity of the subject
merchandise, Commerce explained that it needed to convert HVG’s data. Id.
On remand, Commerce explains that it applied the math sequence in the Final
Results in the reverse order than it intended. Remand Results at 6. Specifically, for the
Final Results, Commerce explains that it first converted HVG’s denominator, which was
based on whole live fish harvested, by what Commerce called the “shank equivalent
conversion factor.” Id. (citing Final Analysis Memo at Attach. 5). The resulting amount
was then used as the denominator over which Commerce divided the farming FOPs from
all farming activities of HVG, Agifish, and Europe JSC. See id.; Final Analysis Memo at
Attach. 5. In the remand redetermination, Commerce explains that applying the
mathematical sequence in this order “makes it appear as if Commerce adjusted only the
Court No. 16-00072 Page 7
denominator and not the numerator.”3 Remand Results at 6. By contrast, for the Remand
Results, Commerce explains that it first divided the farming FOP numerators “by the
reported production quantity of harvested whole live fish.” Id. (citing Draft Remand
Analysis Memo at Attach. I, Remand CD 1, bar code 3705319-01 (May 10, 2018)
(referring to column labeled “Step 1”) (“Draft Remand Analysis Memo”)). Commerce then
multiplied the resulting farming FOPs by the shank equivalent conversion factor so they
would be on the same basis as the U.S. price. Id. (citing Draft Remand Analysis Memo
at Attach. I (referring to the column labeled “Step 2”)). As a result, the farming FOPs are
now on the same subject merchandise or shank basis as the processing FOPs.
Commerce notes, however, that the correction to the order in which the math sequence
was applied did not change the resultant farming FOPs, as calculated in the Final Results.
See id. at 7 (citing Final Analysis Memo at Attach. 5; Draft Remand Analysis Memo at
Attach. I).
3
In actuality, Commerce has two articulations of the same formula. The formula in the Final
Results can be expressed as A/(B divided by E), with “A” representing the farming FOP
numerator, “B” the harvested whole live fish denominator, and “E” the shank equivalent
conversion factor. The formula, as articulated in the Final Results, first reduced the harvested
whole live fish denominator by dividing it by the shank equivalent conversion factor, as to convert
the harvested whole live fish to its shank equivalent. See Final Analysis Memo at Attach. 5.
Commerce then divided the farming FOP numerator by a denominator that was already reduced
because it had been divided by the shank equivalent conversion factor. See id. In the Remand
Results, Commerce achieved the same numerical result, but with more steps. First, Commerce
established a ratio of farming FOP to harvested whole live fish, expressed as A/B. See Draft
Remand Analysis Memo at Attach. I (referring to column labeled “Step 1”). In that ratio, the
farming FOP numerator is divided by the harvested whole live fish denominator. The resulting
amount is then multiplied by the shank equivalent conversion factor (E). See id. (referring to
column labeled “Step 2”). The two articulations of the formula used in the Final Results and the
Remand Results, side by side, are: A/(B divided by E) and (A/B) x E. Dividing a number by a
fraction is the same as multiplying it by the inverse of the fraction. Therefore, both equations yield
the same result because A x (E/B) = (A/B) x E.
Court No. 16-00072 Page 8
On remand, Commerce complied with the court’s order in An Giang I, and its
explanation is in accordance with law and supported by substantial evidence.
CONCLUSION
For the foregoing reasons, the Remand Results comply with the court’s order in
An Giang I, are in accordance with law and supported by substantial evidence, and are
therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:September 12, 2018
New York, New York