Catfish Farmers of Am. v. United States , 2024 CIT 67 ( 2024 )

Slip Op. 24-67
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 21-00380
CATFISH FARMERS OF AMERICA
and eight of its individual members,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
QMC FOODS, INC.; COLORADO BOXED BEEF
COMPANY; VINH HOAN CORPORATION; and
NAM VIET CORPORATION,
Defendant-Intervenors.
Before: M. Miller Baker, Judge
OPINION
[The court sustains in part the agency’s redetermina-
tion and remands for further proceedings.]
Dated: June 5, 2024
Nazak Nikakhtar, Maureen E. Thorson, and Stephanie
M. Bell, Wiley Rein LLP, Washington, DC, on the com-
ments for Plaintiffs.
Ct. No. 21-00380 Page 2
Brian M. Boynton, Principal Deputy Assistant Attor-
ney General; Patricia M. McCarthy, Director; and
Kara M. Westercamp, Trial Counsel, Commercial Liti-
gation Branch, Civil Division, U.S. Department of Jus-
tice, Washington, DC, on the comments for Defendant.
Of counsel on the comments was K. Garrett Kays, Of-
fice of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, Washing-
ton, DC.
Matthew McConkey, Mayer Brown LLP, Washington,
DC, on the comments for Defendant-Intervenors Vinh
Hoan Corporation and Nam Viet Corporation.
Baker, Judge: This case involving the 16th admin-
istrative review of an antidumping duty on Vietnam-
ese catfish returns following remand to the agency.
The court presumes the reader’s familiarity with its
previous opinion, including its discussion of jurisdic-
tion and the standard of review. See Catfish Farmers
of Am. v. United States, Ct. No. 21-00380, Slip Op.
23-97, 2023 WL 4560815 (CIT July 7, 2023).
In that decision, the court held that the Depart-
ment of Commerce erred by excluding Indonesia from
consideration as a surrogate country because it is not
at the “same” level of economic development as Vi-
etnam despite the statutory standard being “compara-
ble.” See id. at 15–20, 2023 WL 4560815, at **5–7. The
court directed the agency to reconsider its choice of In-
dia as the appropriate surrogate. Id. at 20, 2023 WL
4560815, at *7.
Ct. No. 21-00380 Page 3
Commerce defensively stood its ground, explaining
why it thinks the statute permits exclusion of a poten-
tial surrogate that is not at the “same” level of eco-
nomic development as the nonmarket-economy coun-
try. See Appx21971–21982, Appx21996–22003. But
because the Department this time nevertheless went
ahead and compared the quality of the dueling Indian
and Indonesian data sets on the merits rather than
preemptively disqualifying the latter as before, see
Appx21982–21989, Appx22004–22017, the court
agrees to disagree with the agency’s flawed interpre-
tation of the legal standard. A remand on that issue
would serve no purpose given that the rest of Com-
merce’s analysis mitigates that error. See Nat’l Ass’n
of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
659–60 (2007) (noting that harmless error applies to
administrative law).
The remaining issue, therefore, is data quality.
Agency guidance states that where multiple nations
are “economically comparable” to the nonmarket-econ-
omy country whose products are at issue and “signifi-
cant producers” of that merchandise, 1 “the country
with the best factors data is selected as the primary
surrogate . . . .” Import Administration Policy Bulletin
04.1, Non-Market Economy Surrogate Country Selec-
tion Process (Mar. 1, 2004). 2
The Department compared the Indian and Indone-
sian data in the record and found the former superior.
1 There is no dispute that Indonesia is a significant pro-
ducer of frozen fish fillets.
2 http://enforcement.trade.gov/policy/bull04-1.html.
Ct. No. 21-00380 Page 4
See Appx21982–21989. Plaintiffs (Catfish Farmers)
challenge three aspects of that finding: (1) the Indian
sources used to value the “main” factors of production
(whole live fish, fingerlings, and fish feed), see ECF 81,
at 22–34; (2) the use of Indian financial statements,
see id. at 34–40; and (3) the valuation of labor and cer-
tain by-products and co-products, see id. at 40–50. The
court addresses each issue in turn, bearing in mind
that its “duty is not to evaluate whether the infor-
mation Commerce used was actually the best availa-
ble, but rather whether a reasonable mind could con-
clude that [it] chose the best available information.”
Jiangsu Zhongji Lamination Materials Co. (HK) v.
United States, Ct. No. 21-00138, Slip Op. 23-84, at 11,
2023 WL 3863201, at *4 (CIT June 7, 2023) (cleaned
up) (quoting Zhejiang DunAn Hetian Metal Co. v.
United States, 652 F.3d 1333, 1341 (Fed. Cir. 2011)).
“Affirming the Department’s determination requires a
reasoned explanation from Commerce that is sup-
ported by the administrative record.” Id. (cleaned up).
I. Whole live fish, fingerlings, and fish feed
The Indian data for whole live fish, fingerlings, and
fish feed came from two trade press sources: Fishing
Chimes and Undercurrent News. The Department
found them publicly available, contemporaneous with
the period of review, representative of broad market
average pricing data, tax- and duty-exclusive, and spe-
cific to the inputs (including the particular species in
question). Appx21983. Catfish Farmers object to both
sources.
Ct. No. 21-00380 Page 5
A. Fishing Chimes
Catfish Farmers note that “[t]he Court remanded
the use of [the Fishing Chimes] data in the [15th] re-
view over concerns that it did not reflect broad-market
averages,” and they argue, without elaboration, that
“[t]he same issues . . . are present here.” ECF 81, at 23
(citing NTSF Seafoods Joint Stock Co. v. United
States, Ct. Nos. 20-00104, 20-00105, Slip Op. 22-38,
at 41–48, 2022 WL 1375140, at **14–16 (CIT Apr. 25,
2022)). The court would not ordinarily entertain that
argument because it is unsupported by either a cita-
tion to the record or an explanation of why a ruling
from a different review applies here. After all, “[e]ach
[segment] is a separate exercise of Commerce’s author-
ity and allows for different conclusions based on differ-
ent facts in the record.” Hung Vuong Corp. v. United
States, 483 F. Supp. 3d 1321, 1353 (CIT 2020) (quoting
ABB Inc. v. United States, 437 F. Supp. 3d 1289, 1301
(CIT 2020)).
The Department itself, however, cited the prior re-
view as a reason for finding Fishing Chimes reliable.
See Appx22004 (“Consistent with Commerce’s exten-
sive analysis of this issue in the context of the prior
review, we continue to find that Fishing Chimes data
are representative of a broad market average.”). That
finding opened the door for Catfish Farmers to refer to
the court’s remand decision. 3
3 In discussing “economic comparability,” the Department
itself emphasized that its “long-standing practice” is to
treat the investigation and each administrative review “as
Ct. No. 21-00380 Page 6
In its decision regarding the 15th review, the court
noted that while Fishing Chimes estimated that pan-
gasius is farmed in more than 300 villages in two dis-
tricts in the Indian state of Andhra Pradesh, it stated
that only 46 of the 300 villages the study covered were
in those two districts. “By negative implication, that
means the other 254 studied villages were not so lo-
cated.” Catfish Farmers of Am. v. United States, Ct.
No. 20-00105, Slip Op. 24-23, at 8, 2024 WL 775181,
at *4 (CIT Feb. 26, 2024) (emphasis in original). That
is, if the study covered 300 villages of which 46 were
in the two districts, the rest must be somewhere else.
The court remanded because it was not apparent how
a study focusing on fish farming in a significant minor-
ity of villages could represent a “broad market aver-
age.” Id. Because Commerce evidently based its find-
ing on its past analysis that the court remanded as in-
adequate, it is not supported by substantial evidence,
so the court remands. 4
independent segments with separate records and which
lead to independent determinations.” Appx21978. If Com-
merce elects to refer to analysis from prior segments, then
parties can do the same in seeking to discredit that analy-
sis.
4 The government cites Commerce’s finding that Fishing
Chimes involved farms that produce a “significant volume
of fish.” ECF 82, at 29 (quoting Appx22006). It contends
that because the “data represent a large volume of trans-
actions,” Catfish Farmers failed to demonstrate that the
Department’s “finding that the Fishing Chimes data are
representative of a broad market average was unreasona-
ble.” Id. at 30. That argument fails. The mere existence of
a “large volume of transactions” does not establish a “broad
Ct. No. 21-00380 Page 7
B. Undercurrent News
Catfish Farmers assert that Undercurrent News
has “no volume information for any of the data sets,
making it impossible to determine how much trade the
prices represent. Nor is there any identification of the
number of farmers/mills interviewed or their loca-
tions.” ECF 81, at 27 (citations to Appx21457–21521
omitted). Commerce acknowledged that the “database
screenshots do not provide details on the individual
survey respondents,” but cited the publication’s refer-
ences to “[d]ata collected via interviews with farmers
in all major producing regions” and “[d]ata collected
via interviews with feed mills in all major producing
regions.” Appx22008 (citing Appx21470–21482;
Appx21483–21495). Insofar as the court can discern,
those are the only two statements the Department
made about Undercurrent News that can reasonably
be construed as referring to the “broad market aver-
age” issue.
As Catfish Farmers argue, however, “[w]ithout vol-
ume data or even an indication of how many survey
participants there are, Commerce has no way of know-
ing whether the prices reflect a meaningful breadth of
trade.” ECF 81, at 29. The government cites the De-
partment’s reference to “farmers in all major produc-
ing regions” and then argues that Catfish Farmers
market average.” See Slip Op. 24-23, at 9, 2024 WL 775181,
at *3 (“[A] significant volume of fish . . . does not indicate
anything as to a ‘broad market average’ absent any discus-
sion showing how those amounts compare to India’s overall
pangasius production . . . .”).
Ct. No. 21-00380 Page 8
“ultimately cite[ ] nothing to undermine Commerce’s
determination that the volume is sufficiently robust
and reliable.” ECF 82, at 32. That argument rests on
the assumption that substantial evidence supports the
decision. The standard of review requires the court to
“hold unlawful” any determination that is “unsup-
ported by substantial evidence on the record.”
19 U.S.C. § 1516a(b)(1)(B)(i). Catfish Farmers can
therefore challenge Commerce’s results in at least two
ways: first, by citing contradictory record evidence
that calls the conclusions into question, see, e.g., Fred-
erick v. Dep’t of Justice, 73 F.3d 349, 352 (Fed. Cir.
1996) (“Consideration of contradictory evidence in the
record is required, since the substantiality of evidence
must take into account whatever in the record fairly
detracts from its weight.”) (cleaned up), and second, by
explaining how the Department’s analysis does not
support the conclusion reached, see, e.g., Goodyear Tire
& Rubber Co. v. Dep’t of Energy, 118 F.3d 1531, 1541
(Fed. Cir. 1997) (finding that “superficial observa-
tions” by an agency “are not substantial evidence”).
Here, their argument is of the latter sort. Com-
merce essentially accepted Undercurrent News’s
vague and unsupported reference to an unspecified
number of farmers and feed mills in “all major produc-
ing regions.” Substantial evidence “must do more than
create a suspicion of the existence of the fact to be es-
tablished.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951); cf. Cozart v. Sec’y of Health & Hum.
Servs., 126 Fed. Cl. 488, 498 (2016) (“[A]bsence of evi-
dence is not evidence.”). The court remands for the De-
partment to reconsider its reliance on Undercurrent
News.
Ct. No. 21-00380 Page 9
II. Financial statements
Next, Catfish Farmers challenge Commerce’s
choice of Indian over Indonesian financial statements.
The Department deemed the former better because
they were contemporaneous to the period of review
and because their subject companies “substantially en-
gage[ ] in the processing and sales of frozen seafood
products.” Appx21985–21986. It found the latter “less
favorable in certain aspects” because, while they were
neither unusable nor unreliable, one contained an au-
ditor’s note questioning the company’s ongoing viabil-
ity and the other said “aquaculture” is a small fraction
of the company’s sales. Appx21986. It also observed
that the three Indian reports were more representa-
tive of the relevant manufacturing sector than their
two Indonesian analogs. Appx21986–21987.
Catfish Farmers attack the Indian statements on
two grounds. First, they argue the reports cover only
eight of the period of review’s twelve months while the
Indonesian ones cover all twelve. ECF 81, at 31–35
(citing Appx21087–21256; Appx12889–12955;
Appx16369–16447; Appx16622–17015; Appx20314–
20843). The Department considered that argument
and responded that while the latter’s full contempora-
neity was an advantage, “we do not find that this fac-
tor warrants a finding that the Indonesia[n] state-
ments are superior” because “all of the proffered state-
ments (for either country) are contemporaneous and
cover the majority of the [period of review].”
Appx22014. The court cannot find fault with that ex-
planation because the agency’s guidance simply says
data should be “contemporaneous with” the period of
Ct. No. 21-00380 Page 10
review—it does not necessarily require contemporane-
ity with the entire period. See Policy Bulletin 04.1,
above note 2.
Second, Catfish Farmers contend that the evidence
does not establish that the Indian statements are for
companies that “substantially” engage in processing
and sales of frozen seafood and that Commerce ignored
evidence contradicting its conclusion. They assert that
the Indian report from MMC Exports Limited “shows
no possession of relevant production assets such as
deep freezers,” ECF 81, at 35 (citing Appx12949), and
refers to “retail sale of food in specialized stores” as
accounting for 100 percent of the company’s revenue,
id. at 35–36 (quoting Appx12933). Therefore, they
argue, “the financial statement indicates that [MMC]
simply buys and sells at retail, making it an
inappropriate proxy for a frozen seafood processor like
Vinh Hoan here.” Id. at 36. They admit the
Department acknowledged that MMC engages in
“limited processing” and found it no different from PT
Japfa Comfeed Indonesia Tbk, whose statement
showed “aquaculture” as a 10 percent portion of its
overall business. Id. at 36–37 (citing Appx21986,
Appx22012–22013). But they maintain that Japfa
does engage in seafood processing, while MMC’s is
either minimal or nonexistent, and they contend that
the agency’s “treatment of the two companies as
equivalent is unexplained and unsupported.” Id. at 37.
The government responds that Commerce acknowl-
edged the contrary evidence and explained why both
the MMC and Japfa materials had similar drawbacks
such that neither was clearly superior. ECF 82, at 38–
Ct. No. 21-00380 Page 11
39 (citing Appx22013). Thus, the government argues,
the Department cited its preference for using multiple
financial statements where possible and favored India
because it had more of them on the record than Indo-
nesia, id. at 39 (citing Appx21986–21987), such that
“substantial evidence supports Commerce’s determi-
nation that the Indian financial statements offered an
‘advantage’ over the Indonesian,” id. (citing
Appx21987). While there does not appear to be sub-
stantial evidence of any such “advantage,” regulatory
preferences “are acceptable tiebreakers, provided
Commerce undertakes a fair comparison of the com-
peting datasets.” New Am. Keg v. United States, Ct.
No. 20-00008, Slip Op. 21-30, at 34, 2021 WL 1206153,
at *13 (CIT Mar. 23, 2021) (citing Peer Bearing Co.-
Changshan v. United States, 804 F. Supp. 2d 1337,
1353 (CIT 2011)). The Department compared the
statements and found neither one to be superior, so it
used a regulatory preference to decide the issue. That
was permissible. 5
III. Labor, by-products, and co-products
Finally, Catfish Farmers challenge the agency’s
choice of 2006 Indian—over contemporaneous Indone-
5 Catfish Farmers also argue that MMC was not profitable
enough for its statements to be useful. ECF 81, at 37 (citing
Appx22013–22014; Appx12955). Commerce considered
that argument and said what matters is that the company
was not losing money. Appx22013. Catfish Farmers have
not shown why a slim (or minimal) margin renders a finan-
cial statement problematic, much less how the court can
weigh that evidence.
Ct. No. 21-00380 Page 12
sian—labor data and its valuation of by-products and
co-products. 6
A. Labor
Catfish Farmers argue that Commerce “concede[d]
that the Indonesian labor data are ‘better’ than the
data on the record for India.” ECF 81, at 40 (citing
Appx21987). The Department’s finding was somewhat
more nuanced: “There are only two areas where the
Indonesian data fare better. First, the Indian data
used to value labor inputs are not contemporaneous
with the [period of review]” because they were from
2006. Appx21987. 7 The agency acknowledged that Pol-
icy Bulletin 04.1 requires contemporaneity but conclu-
ded it was more important to select data from a single
country. Id. It therefore inflated the Indian data to 90¢
per hour, compared that to the Indonesian 71¢ per
hour, and surmised that nothing on the record sug-
gested 90¢ was “anomalous” and no party had argued
such. Appx21987–21988. Catfish Farmers now assert
it is “not apparent” why the comparison “inherently in-
dicates a lack of anomaly,” ECF 81, at 42, but it ap-
pears they made no such contention before the agency.
More importantly, however, Catfish Farmers argue
that while the Indonesian data are both contempora-
6 The Department elected to use Indonesian data to value
the fish oil by-product because it found the Indian data “ab-
errational.” Appx21988. As Catfish Farmers do not chal-
lenge that finding, the court sustains it.
7 The second area was the fish oil by-product. Appx21988;
see also above note 6.
Ct. No. 21-00380 Page 13
neous with the period of review and “specific to ‘agri-
culture’ and ‘manufacturing’ workers,” it is unclear
whether the Indian data are specific to the relevant
industry. Id. at 41 (citing Appx12499; Appx20845–
20864). Commerce conceded the latter. Appx22015
(“We agree that the exhibit does not specify this infor-
mation.”). But “[n]otwithstanding the drawbacks of
the Indian labor data, . . . we continued to rely on [it]
because, overall, the Indian data are preferable.” Id.(emphasis added). In other words, the Department
found the Indian labor data better than the Indonesian
because the former country’s information for other fac-
tors is superior.
The government mimetically restates the agency’s
conclusion. See ECF 82, at 43–44 (arguing that Catfish
Farmers “diminish[ ] Commerce’s regulatory prefer-
ence to ‘value all factors in a single surrogate coun-
try’୻”) (quoting 19 C.F.R. § 351.408(c)(2)). It maintains
that the sole-country preference means it was reason-
able for the agency to select the Indian data regardless
of any flaws. Id. at 44.
The problem with both the government’s argument
and the Department’s analysis is that the statute re-
quires, in all instances, the use of “the best available
information” about the value of factors of production
“in a market economy country or countries considered
to be appropriate by” Commerce. 19 U.S.C.
§ 1677b(c)(1). While the regulations express a prefer-
ence for a single country,
the regulation cannot be read so broadly as to
defeat the statutory directive that the factors of
Ct. No. 21-00380 Page 14
production be valued according to the best avail-
able information. In other words, the uniformity
of data that results from having all surrogate
values determined according to data from the
same surrogate country may be a consideration
in deciding which surrogate data to use for a par-
ticular factor of production. But in light of the
statutory directive of 19 U.S.C. § 1677b(c)(1) to
use the best available information from a surro-
gate country “or countries,” it cannot be the sole
consideration.
Qingdao Qihang Tyre Co. v. United States, 308
F. Supp. 3d 1329, 1352 (CIT 2018) (emphasis in origi-
nal). The Department’s “preference” therefore “carries
the day only when it is used to support a choice of data
as the best available information where the other
available data upon a fair comparison, are otherwise
seen to be fairly equal.” Calgon Carbon Corp. v. United
States, 145 F. Supp. 3d 1312, 1326–27 (CIT 2016)
(cleaned up).
The “regulatory preference,” in other words, is a
mere tiebreaker, not a rule of decision, and here, Com-
merce jumped to the tiebreaker without first declaring
the game to be tied. Nothing here shows that the De-
partment found the Indian labor data superior. To the
contrary, every indication is that the agency selected
that information despite its deficiencies and because of
the preference. Accordingly, that choice is not sup-
ported by substantial evidence. A remand is necessary
for the Department to reconsider whether the prob-
lems it identified with the Indian data warrant using
the Indonesian counterpart.
Ct. No. 21-00380 Page 15
B. By-products and co-products
Catfish Farmers also object to the use of Indian
data that result in by-product and co-product values
worth more than the inputs from which they were gen-
erated. ECF 81, at 42–50. Commerce summarized the
argument as being that because it rejected the “aber-
rational” Indian fish oil figure, “a similar rationale ap-
plies to certain other Indian by/co-product values.”
Appx22015. It said it was “improper” to “contrast[ ]
the values on an equal weight basis” as Catfish Farm-
ers argued, 8 id. (emphasis added), because it “has rec-
ognized that certain byproducts can be worth more, on
an equal volume basis, than the underlying inputs,”
Appx22016 (emphasis in original). The agency found
that the by- and co-products had “undergone different
levels of additional processing, as compared to the
whole fish input,” and that “their contribution to the
total normal value figure demonstrates that they are
not distortive here.” Appx22016–22017. Finally, it
deemed the Indonesian data “disfavored” because they
consisted of price lists and affidavits. Appx22017. 9
8 Catfish Farmers cited the by- and co-products’ value per
kilogram. Appx22015; see also ECF 81, at 43 (citing rupees
per kilogram).
9 The Department said it disfavors price lists because they
“often represent a starting point in negotiations rather
than a final price, and frequently do not reflect the experi-
ence of the market as a whole.” Appx22010. It also “see[s]
no basis to find that [affidavits are] more accurate or relia-
ble than the information obtained from the various govern-
ment sources (including the agency involved in collecting
the data).” Id.Ct. No. 21-00380 Page 16
In response, Catfish Farmers cite three prior Com-
merce decisions. Two stated that the Department “has
a long-standing practice of rejecting or capping the by-
product [surrogate value] in instances where [that
value] exceeds the [surrogate value] of the product
from which it was derived.” Issues & Decision Memo
at 52 (Apr. 8, 2015) accompanying Certain Pneumatic
Off-the-Road Tires from the People’s Republic of
China; 2012–2013, 80 Fed. Reg. 20,197 (Dep’t Com-
merce Apr. 15, 2015), quoted in ECF 81, at 44; I&D
Memo at 58 (Sept. 6, 2016) (same) accompanying Cer-
tain Frozen Warmwater Shrimp from the Socialist Re-
public of Vietnam, 81 Fed. Reg. 62,717 (Dep’t Com-
merce Sept. 12, 2016), cited in ECF 81, at 44, 45. The
third repeated that statement and then noted that “[a]
by-product by definition is less valuable than the input
from which it is derived.” I&D Memo at 21 (Sept. 22,
2014) accompanying Monosodium Glutamate from the
People’s Republic of China, 79 Fed. Reg. 58,326 (Dep’t
Commerce Sept. 29, 2014) (MSG). The agency hedged
a bit, however, stating that assigning the by-product a
higher value than the input is unreasonable “[w]here
there is no evidence that the by-product is a value-
added by-product.” Id. But it reiterated that it “has a
consistent practice of rejecting or capping the by-prod-
uct offset.” Id. at 22.
Catfish Farmers object that here Commerce merely
asserted, without analysis, that the by-products un-
derwent different levels of processing than the whole
live fish. ECF 81, at 46–47 (“[T]he agency points to no
record evidence to support this conclusion, much less
evidence showing that any processing is sufficient to
increase value to the point reflected in the Indian [sur-
Ct. No. 21-00380 Page 17
rogate values].”) (citing Appx22016). They also con-
tend that Vinh Hoan’s reporting did not show any
added materials, labor, or energy for generating by-
products, that the Department did not identify any,
and that the co-product reporting reflected only mini-
mal processing. Id. at 47.
The government responds that Catfish Farmers
“fail[ ] to demonstrate that the Indian data are ‘una-
vailable or unreliable’ such that Commerce should
have departed from its primary surrogate country
preference by using Indonesian data for these by/co-
products.” ECF 82, at 46. It is unclear how that argu-
ment is relevant to whether the by- or co-products can
be worth more than the inputs. The government fur-
ther contends that the Department’s “reliance on In-
dian data must be compared to the Indonesian data,
which [it] found to be disfavored because they included
price lists and affidavits.” Id. Again, however, that ar-
gument says nothing about the Indian data’s value
and simply presumes their reliability. Finally, the gov-
ernment cites a decision saying that “where a by-prod-
uct yields a higher value than the input, capping of the
[surrogate value] at the value of the input is not war-
ranted.” I&D Memo at 11 (Nov. 2, 2022) accompanying
Certain Activated Carbon from the People’s Republic of
China: Final Results of Antidumping Administrative
Review; and Final Determination of No Shipments;
2020–2021, 87 Fed. Reg. 67,671 (Dep’t Commerce
Nov. 9, 2022), cited in ECF 82, at 47.
Based on those three points, the government ar-
gues that “[s]ince Commerce explained that certain by-
products can be worth more, on an equal volume basis,
Ct. No. 21-00380 Page 18
than the underlying inputs after being processed into
other by-products, [Catfish Farmers] cannot solely
rely on a ‘higher’ priced by-product to warrant the cap-
ping of the value for the by-product.” 10 Id. at 48 (citing
Appx22016–22017). That assertion amounts to the
proposition that because by-products can be worth
more than the inputs, it is necessarily reasonable to
assign such higher values to the former. The Depart-
ment’s MSG decision discussed above forecloses that
position because it requires evidence that processing
renders the by-product more valuable than the input.
In sum, Catfish Farmers are correct that Com-
merce stated its conclusion with no meaningful cita-
tion to the record. It simply said the by-products and
10 The parties offer conflicting interpretations of An Giang
Fisheries Import and Export Joint Stock Company v.
United States, 317 F. Supp. 3d 1304, 1311–12 & n.2 (CIT
2018), in which the court sustained Commerce’s finding
that it was unreasonable for a by-product’s surrogate value
to exceed that of the main input and the subject merchan-
dise. The court noted that the Department “did not deter-
mine that the value was inappropriate simply because [it]
was greater than the main input; instead, Commerce found
the data inappropriate because of the high value in combi-
nation with” other considerations, including that the plain-
tiff’s proposed data related to a different sort of fish oil. Id.at 1311 n.2. The court also found that the agency had ex-
plained why it chose the methodology it did and that the
outcome was reasonable. Id. at 1312. An Giang therefore
does not dictate a bright-line rule either way—it was a de-
cision based on the facts presented. It does, however, sup-
port the government’s assertion that Catfish Farmers’
“proposed blanket rule—to cap all by-products when they
pose a higher value than the main input—is not war-
ranted,” ECF 82, at 49, at least not automatically.
Ct. No. 21-00380 Page 19
co-products have undergone “different levels of pro-
cessing” from the inputs and that the result is “not dis-
tortive.” Appx22016–22017. That Indian data might
be better for other factors of production and that the
Indonesian data are based on price lists and affidavits
do not answer the fundamental question of whether
the Indian by-product and co-product data are in fact
reliable and the best available information for those
factors, so the court remands.
* * *
The court sustains Commerce’s redetermination in
part and remands for further proceedings consistent
with this opinion.
Dated: June 5, 2024 /s/ M. Miller Baker
New York, NY Judge