Catfish Farmers of Am. v. United States

Slip Op. 16 - 29

UNITED STATES COURT OF INTERNATIONAL TRADE

:
CATFISH FARMERS OF AMERICA, et al., :
:
Plaintiffs, :
:
v. : Before: R. Kenton Musgrave, Senior Judge
:
UNITED STATES, : Consol. Court No. 12-00087
:
Defendant, :
:
and :
:
VINH HOAN CORP., QVD FOOD CO., LTD., :
VIETNAM ASSOCIATION OF SEAFOOD :
EXPORTERS AND PRODUCERS, ANVIFISH :
JOINT STOCK CO., BIEN DONG SEAFOOD :
CO., LTD., and VINH QUANG FISHERIES :
CORP., :
:
Defendant-Intervenors. :
:

OPINION

[Sustaining final results of redetermination of seventh administrative review of frozen fish fillets
from the Socialist Republic of Vietnam.]

Decided: March 30, 2016

James R. Cannon, Jr., Jonathan Mario Zielinski, Nazak Nikakhtar, and Nathaniel J.
Halvorson, Cassidy Levy Kent (USA) LLP, of Washington D.C., for the plaintiffs. On the initial
comments were also Valerie A. Slater and Dallas Woodrum, Akin Gump Strauss Hauer & Feld LLP,
of Washington D.C.

Ryan M. Majerus, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, of Washington D.C., argued for the defendant. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin
E. White, Jr., Assistant Director. Of Counsel on the brief was Elika Eftekhari, Attorney, Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.
Consol. Court No. 12-00087 Page 2

Matthew J. McConkey, Mayer Brown LLP, of Washington D.C., for defendant-intervenors
Vinh Hoan Corporation and QVD Food Company, Ltd.

Andrew B. Schroth, Mark E. Pardo, and Andrew T. Schutz, Grunfeld Desiderio Lebowitz
Silverman & Klestadt, LLP, of Washington D.C., for defendant-intervenor Vietnam Association of
Seafood Exporters and Producers.

Robert G. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington D.C., for
defendant-intervenors Anvifish Joint Stock Company, Bien Dong Seafood Company Ltd., and Vinh
Quang Fisheries Corporation.

Musgrave, Senior Judge: Before the court are the Final Results of Redetermination1

on the seventh administrative review of the antidumping duty order covering certain frozen fish

fillets from the Socialist Republic of Vietnam.2 The plaintiffs3 and a defendant-intervenor, Vinh

Hoan Corporation (“Vinh Hoan”), continue to challenge several aspects of the Remand Results.

Familiarity with the case is presumed. The court finds Commerce’s Remand Results supported by

substantial evidence on the record.

1
Final Results of Redetermination Pursuant to Court Order (June 29, 2015), ECF No. 92
(“Remand Results”), filed by the defendant’s U.S. Department of Commerce, International Trade
Administration (“Commerce” or “defendant”) pursuant to Catfish Farmers of America v. United
States, 38 CIT ___, Slip Op. 14-146 (Dec. 18, 2014) (“Catfish Farmers I”).
2
See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Final Results and
Partial Rescission of the Seventh Antidumping Duty Administrative Review, 77 Fed. Reg. 15039
(Mar. 14, 2012), PDoc-II-129 (“Final Results”), and accompanying issues and decision
memorandum, PDoc-I-112 (“IDM”). The period of review (“POR”) covers August 1, 2009 through
July 31, 2010.
3
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. (“Catfish Farmers” or “plaintiffs”).
Consol. Court No. 12-00087 Page 3

Background

To summarize briefly, Catfish Farmers I remanded the Final Results to Commerce

to further explain, inter alia, Commerce’s determination that the Bangladeshi Department of

Agricultural Marketing (“DAM”) data are the “best available information” for valuing the whole

live fish input in light of the plaintiffs’ concerns regarding (1) the DAM data’s reliability and (2)

their commercial quantities, and (3) Commerce’s surrogate value by-product calculations for fish

waste, fresh broken fillets, frozen broken fillets and fish oil. See Catfish Farmers I. On remand,

Commerce considered these and other issues, ultimately continuing to determine the DAM data are

reliable and constitute the best available information. Remand Results at 2-12, 16-25; Defendant’s

Response to Plaintiffs’ and Defendant-Intervenors’s Comments on the Final Remand

Redetermination (Jan. 6, 2016), ECF No. 121 (“Def.’s Resp.”), 6-15. Commerce also determined

different surrogate values for each challenged by-product.

Discussion

The plaintiffs assert that Commerce’s Remand Results are not supported by

substantial evidence and otherwise not in accordance with law because (1) the DAM data are not

specific to the main production input of whole live fish, and (2) the DAM data are otherwise not

reliable. Plaintiff’s Comments on Defendant’s Remand Determination (Aug. 12, 2015) (Public

Version), ECF No. 99 (“Pls’ Cmts”). Defendant-intervenor Vinh Hoan challenges Commerce’s fish

oil by-product surrogate value (“SV”), claiming that imposing a cap on the price is not supported

by the record and that the calculated cap incorporates serious errors. Defendant-Intervernor’s

Comments on the Final Redetermination Pursuant to Remand (Aug. 12, 2015), ECF No. 97 (“Def-
Consol. Court No. 12-00087 Page 4

Int’s Cmts”); see also Plaintiff’s Response to Defendant-Intervenor’s Comments on the Remand

Results (Oct. 9, 2014), ECF No. 114 (“Pls’ Resp.”).

I

The plaintiffs contend that Commerce’s Remand Results are not supported by

substantial evidence because the pricing data used to value the main production input of whole live

fish (the DAM data) are not specific to the input in question and are not reliable. The plaintiffs’

central argument regarding specificity is that because the DAM data reference wholesale price data

and not farm-gate price data, they represent prices for “dead or sluggish” fish and are therefore not

specific to whole live fish. Pls’ Cmts at 2-11. The plaintiffs’ contention against the reliability of

the DAM data centers on previously-raised concerns regarding the lack of data validation by the

DAM and the overlap between the DAM’s “worksheet” data and its derivative “website” data.4 Id.

at 11-23. These arguments do not persuade the court that Commerce’s determination is unsupported

by substantial evidence on the record.

A

The plaintiffs assert that the DAM data are not specific because the data refer to

“dead or sluggish” fish and not whole live fish. They contend that, as a result, using the DAM data

results in a “less accurate” SV because the record demonstrates that the respondents’ production

consumes whole live fish and does not consume dead fish. To support their position, the plaintiffs

4
Defendant-intervenor Vietnam Association of Seafood Exporters and Producers
(“VASEP”) originally placed the worksheet data on the record. VASEP’s SV Submission (May 10,
2011) PDoc-I-100 at Ex. 13. Subsequently, VASEP placed the website data on the record. VASEP’s
Submission of Factual Data -- Bangladesh DAM Pricing Data Published on Government Internet
Website (Dec. 22, 2011), PDoc-II-70 at Exs. 1-20.
Consol. Court No. 12-00087 Page 5

rely on one affidavit from Bangladeshi counsel retained by the plaintiffs in this matter recounting

interviews with certain DAM officials who aver that the DAM data include prices for dead fish. Pls’

Cmts at 9, referencing Petitioners’ July 25, 2011 Rebuttal SV Information Submission, PDoc-I-124

at Ex. 1. The affidavit avers that DAM officials stated during an interview that “fish are dead when

sold at the [wholesale] market” and that the DAM data reference dead fish. Id. The plaintiffs

further argue that because significant distinctions exist at the farm-gate and wholesale production

levels that result in distorted prices, Commerce’s determination to use wholesale price data provided

by the DAM is legally unsustainable. The plaintiffs emphasize the relevant distinctions of the

“condition” of farm-gate and wholesale fish: (1) that the fish are live when sold at the farm-gate and

dead at the wholesale market, and (2) that farm-gate sales represent live fish at “an earlier point of

sale” and the wholesale sales represent live fish at a “more downstream point of sale.” Pls’ Cmts

at 4.

On the threshold issue of whether the DAM data reflect prices of live or dead fish,

Commerce does not assert that respondents purchase dead or sluggish fish. Instead, Commerce

argues that the data are specific to whole live fish because they only reference prices for “live fish”.

Commerce relies on an official letter from the DAM averring that the DAM data refer to prices for

“whole live fish”. Remand Results at 19, referencing VASEP’s SV Submission (May 10, 2011),

PDoc-I-100 at Exs. 13B & C.

Under the relevant standards of review, the court must uphold Commerce’s

determination, finding, or decision unless “unsupported by substantial evidence on the record, or

otherwise not in accordance with law.” 19 U.S.C. §1516a(b)(1)(B)(i). Where Commerce has the

choice between two fairly conflicting views, “[t]he court may not substitute its judgment for that of
Consol. Court No. 12-00087 Page 6

the [agency] . . . even though the court would have justifiably made a different choice had the matter

been before it de novo.” Timken Co. v. United States, 26 CIT 590, 592, 209 F. Supp. 2d 1373, 1375

(2002) (“Timken”), quoting Universal Camera v. NLRB, 340 U.S. 474, 488 (1951) (internal citations

and quotations omitted). Moreover, “the possibility of drawing two inconsistent conclusions from

the evidence . . . does not mean that an agency’s finding is not supported by substantial evidence.”

Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1996) (internal citations omitted).

Finally, where substantial evidence exists on both sides of an issue, “the statutory substantial

evidence standard compels deference to the [agency].” Nippon Steel Corp. v. United States, 458

F.3d 1345, 1354 (Fed. Cir. 2006).

The two pieces of evidence relied upon by Commerce and the plaintiffs are facially

contradictory. Where Commerce has conflicting evidence on the record and substantial evidence

exists on both sides of an issue, the standard compels deference to Commerce, provided Commerce

has reasonably explained its determination. Here, Commerce explained that it has “determine[d]

that official government documentation . . . [is] more reliable than an unofficial document procured

by interested parties’ counsel[ ] about a conversation with Bangladeshi officials held for purposes

of the underlying proceeding”. Def’s Resp. at 10; Remand Results at 19. The court cannot re-weigh

the record evidence, nor can it substitute its own judgment on this issue, Timken, 26 CIT at 592, and

further it is not persuaded that Commerce’s decision to place more weight on the official DAM

documentation was unreasonable. Therefore, the court finds Commerce’s determination that the

DAM data reference whole “live” fish prices supported by substantial evidence.
Consol. Court No. 12-00087 Page 7

B

As to the issue of whether the DAM data are specific, Commerce does not dispute

that the respondents procure their fish input from farms; rather, it disputes the plaintiffs’ “contention

that prices labeled as being at the farm-gate level . . . are comprehensively superior to other SV

data.” Remand Results at 18-19. Commerce further explains that on this record, there is not enough

detail to conclude that qualitative distinctions would bear upon the other SV criteria because (1)

respondents’ purchasing experiences differ, (2) any presumed differences between farm-gate and

wholesale fish are mitigated by the perishable nature of the fish, and, importantly, (3) the underlying

record lacks detail. Remand Results at 6-7 (“nothing in the record indicates a more accurate result

would be achieved in this case by using prices identified as farm-gate (BAS data) instead of those

which are wholesale (DAM data)” to value respondents’ live fish); Def’s Resp. at 10-11.

The plaintiffs reiterate their arguments that (1) the respondents do not consume dead

fish in their production processes, (2) product specificity is the most important factor5, (3) to the

extent the DAM data reflect values for “live” fish, such fish will be “sluggish”, and (4) the fact that

the DAM wholesale data include values for dead or sluggish fish results in a “less accurate” result

to value the respondents’ whole live fish input. However, as the defendant responds, on this record

nothing indicates that a more “accurate” (in terms of price differential) result would be achieved in

this case by using prices identified as farm-gate (the BAS data) instead of those that are wholesale

5
Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014)
(“[t]he record further supports Commerce’s conclusion that garlic bulb size is a more important
factor than contemporaneity”). Notwithstanding such and similar intimation, the weight Commerce
accords to each factor is within its discretion and dependent, ad hoc, on the record of a given
proceeding and situation.
Consol. Court No. 12-00087 Page 8

(the DAM data) in order to value the respondents’ live fish. See Remand Results at 6; see also IDM

at cmt 1.C. In other words, the plaintiffs’ argument does not demonstrate that, on this record, using

farm-gate price data instead of wholesale price data will result in a distorted SV for the whole live

fish input. “Dead or sluggish fish” may be “less accurate” from a product specificity standpoint, but

the bottom line (as always) is concerned with price. The court’s clearly expressed concern

previously was with respect to the inadvertent introduction of pricing distortions through the

selection of wholesale data rather than farm-gate data; however, the plaintiffs’ comments and

arguments on the Remand Results do not demonstrate, on this record and at this point, that a

meaningful price differential will result. The court therefore is not persuaded that Commerce’s

determination is unsupported by substantial evidence on this record.

II

As to reliability, on remand Commerce was directed to further explain its

determination in light of: the discrepancies between the worksheet and website datasets; the DAM’s

non-responsiveness to Commerce’s requests for information; and the plaintiffs’ concern that the

DAM data do not represent commercial quantities. Catfish Farmers I, 11-14. The court finds

Commerce’s determination that the DAM data6 are reliable to be reasonable and supported by

substantial evidence on the record.

6
As explained by Commerce in its Final Results and Remand Results, Commerce relies
solely on the DAM website data in its determinations. See IDM at cmt 1.C (“Given that we continue
to find the DAM [worksheets] not to be publicly available, we will now consider only the partial
DAM data published online by the Bangladeshi government.”)
Consol. Court No. 12-00087 Page 9

A

In the Remand Results, Commerce explains that it considers the DAM data to reflect

commercial quantities given the record evidence. Specifically, Commerce explains that the

discrepancies between the two DAM datasets are not informative because it no longer “accord[s]

weight” to the worksheets and that public availability concerns “became moot” with the public

availability of the website data, and it emphasizes that the DAM’s failure to respond to Commerce’s

questions is not meaningful because it submitted the questions with regard to the worksheet data,

not the website data, and its questions to the DAM primarily centered on the issue of public

availability. Commerce further notes that even if it did afford any weight to the worksheets, the

average discrepancy is “about 3 percent, meaning there is no meaningful difference when taken

together as a whole.” Remand Results at 8; see also Def’s Resp. at 11-12.

As to whether the DAM data reflects commercial quantities, the plaintiffs argue that

Commerce had no basis to make such a finding in the absence of quantity or volume information

associated with the DAM data. Pls’ Cmts at 20-23. The plaintiffs particularly take issue with

Commerce’s reliance on the Fisheries Statistical Yearbook of Bangladesh to corroborate the DAM

data, arguing that the reported volume of fish sold nationally cannot serve as a proxy for the volume

of fish actually represented by the DAM data. See VASEP’s SV Submission (Nov. 15, 2011), PDoc-

II-43 at Ex. 5D (Table 18) (“Yearbook”). The plaintiffs also argue that Commerce’s treatment of

the DAM’s price observations in the previous review undermine Commerce’s argument here,

suggesting that because the DAM prices are reported on a “per quintal basis”, or 100 kilogram lot

basis, “the DAM’s 766 website price observations could at most account for . . . 76.6 metric tons”

during the POR. Pls’ Cmts at 22. Continuing on this point, the plaintiffs contrast the DAM data
Consol. Court No. 12-00087 Page 10

with the BAS and FIGIS data7 on the record, explaining that those sources have volume data

associated with price data representing 83 metric tons (“MT”) and 109,865 MT.

The defendant explains that the lack of volume data does not rule out or heavily

weigh against the use of such price information, given the available record evidence. Commerce

found that the record demonstrates significant production of 124,760 metric tons of Pangasius in

Bangladesh in and around the POR. Remand Results at 8-9, referencing VASEP’s SV Submission

(Nov. 15, 2011), PDoc-II-43 at Ex. 5D (Table 18). The defendant argues that Commerce drew a

reasonable inference regarding the DAM data and the Yearbook data, finding that given the scope,

coverage, and frequency of data collection by the DAM for the POR and the “systematic, national-

level price monitoring specific to the Pangasius species at issue . . . collected by a government

agency and maintained on a regular basis”, the DAM data represent commercial quantities. Def’s

Resp. at 13. Commerce also cites other reviews in which it relied on sources for major inputs that

do not contain specific volume or value data used to establish the prices.8 Similarly to its decisions

in those cases, Commerce here found that based on the record as a whole, the DAM data reflect

commercial quantities even in the absence of volume information.

7
These two sources were considered by Commerce for the Final Results alongside the DAM
data: (1) Fisheries Statistics of the Philippines 2007-2009, an official government publication of the
Philippine Government’s Bureau of Agricultural Statistics (“BAS”), Fisheries Statistics Division,
containing 2009 Pangasius prices; and (2) price and quantity data for 2009 for Pangasius pertaining
to Indonesia from the U.N. Food and Agricultural Organization’s Fisheries Global Information
System (“FIGIS”).
8
See Certain Steel Nails from the People’s Republic of China: Final Determination of Sales
at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed.
Reg. 33977 (June 16, 2008) (“Nails”) and accompanying IDM at cmt 10; see also Steel Wire
Garment Hangers from the People’s Republic of China: Final Determination of Sales at Less than
Fair Value, 73 Fed. Reg. 47587 (Aug. 14, 2008) (“Hangers”) and accompanying IDM at cmt 4.
Consol. Court No. 12-00087 Page 11

Commerce has broad discretion to determine the best available information for an

antidumping review, as the term “best available information” is not defined by statute. Ad Hoc

Shrimp Trade Action Comm. v. United States, 618 F.3d 1316, 1322 (Fed. Cir. 2010); see Nation

Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999) (Commerce is afforded

“wide discretion” to value factors of production in nonmarket economies). Commerce cannot base

its analysis on mere speculation, but may draw reasonable inferences from the record. Lifestyle

Enterprise, Inc. v. United States, 35 CIT ___, ___, 768 F. Supp. 2d 1286, 1309 (2011), referencing

Hebei Metals & Minerals Imp. & Exp. v. United States, 28 CIT 1185, 1203, 366 F. Supp. 2d 1264,

1277 n.7 (2004). The court’s inquiry “takes into account the entire record, which includes evidence

that supports and detracts from the conclusion reached.” Sango Int’l L.P. v. United States, 567 F.3d

1356, 1362 (Fed. Cir. 2009).

The court disagrees with the plaintiffs’ interpretation of the “per quintal basis” price

reports. The defendant correctly observes that this line of reasoning requires the unlikely

assumption that reporting districts only sold one quintal (100 kg) of fish per week. While

Commerce may have overstated the upper level limit by positing that the data may reflect “hundreds

or thousands” of quintals, Commerce has made a reasonable inference that 76.6 MT is a “lower level

volume cap” on the volume of sale reflected in the DAM data and not an absolute upper level

volume cap as suggested by the plaintiffs. Further, the plaintiffs’ questionable assertion that the

DAM data “at most” reflect only 76.6 MT is undermined by the data the plaintiffs offer in the DAM

data’s stead. The BAS data reflect a volume of 83 MT; even assuming, arguendo, the plaintiffs’

argument regarding the total production volume represented by the DAM data, the slightly higher

total production volume represented by the BAS data is not a compelling reason for finding
Consol. Court No. 12-00087 Page 12

Commerce’s acceptance of the DAM data over the BAS data unreasonable. The BAS and FIGIS

data suffer from other flaws, and Commerce deemed them deficient as compared with the DAM

data.

The plaintiffs also misrepresent Commerce’s use of the Yearbook. Commerce does

not assert the Yearbook as a proxy; instead, Commerce explains, the Yearbook evidence

demonstrates that the Bangladeshi Pangasius industry is mature and not insignificant. Remand

Results at 8-9, 24. Commerce’s inference that the DAM data represent commercial quantities

because the DAM data represent 767 price observations in 31 of 68 districts (including Mymensing,

the largest Pangasius-producing district in Bangladesh) of a country producing 124,760 MT of

Pangasius during the POR is reasonable given the record evidence taken as a whole. See Lifestyle

Enterprise, Inc., 768 F. Supp. 2d at 1309 (Commerce may draw reasonable inferences from the

record). Moreover, the plaintiffs appear to take no issue with Commerce’s reliance on previous

reviews of Nails and Hangers, where volume data was not included with the price data but the

dataset was nonetheless found to be indicative of a broad market average.

Considering the foregoing, the plaintiffs’ arguments do not persuade that

Commerce’s finding with respect to commercial quantities is not supported by substantial evidence

or not in accordance with law.

B

As previously observed, see Catfish Farmers I at 8-14, notwithstanding that the DAM

failed to respond to Commerce’s requests, the defendant in its Final Results concluded that the
Consol. Court No. 12-00087 Page 13

DAM website provided a “robust” set of Pangasius prices in Bangladesh and were reliable for SV

purposes. Final Results at 13. The matter was remanded for further explanation. The plaintiffs at

this point assert that the defendant’s Remand Results do not comply with the court’s explicit

instructions to reconsider the “non-responsiveness” of the DAM. As detailed below, Commerce

asserts that the DAM’s failure to respond to its questions does not form the basis for its reasoning

in its SV analysis. The court finds that Commerce’s explanation complies with the remand order

in Catfish Farmers I, and that Commerce’s determination on the issue of reliability is supported by

substantial evidence on the record.

Regarding the reliability of the DAM data, the plaintiffs reiterate that they provided

affidavits from two Bangladeshi farmers and one from local counsel, which averred that the DAM

data were not gathered based on any statistical sampling technique (valid or otherwise), nor were

they gathered using “structured questionnaires”, as well as a second affidavit from counsel that

averred there was no DAM process during the POR to validate the prices the DAM collects from

the wholesale markets. Pls’ Cmts at 11-12, referencing Petitioners’ SV Rebuttal Submission (June

3, 2011), PDoc-I-109 at Exs. 5-7 and Petitioners’ SV Rebuttal Submission (July 25, 2011),

PDoc-I-124 at Ex. 1, para. 5. The plaintiffs also claim they submitted an “independent report” not

prepared for this proceeding or at the plaintiffs’ request that surveyed the quality of the aquaculture

data collected and published by DAM and concluded that the DAM’s market prices are “not

up-to-date and in many cases not reliable.” Pls’ Cmts at 12, referencing Petitioners’ Rebuttal SV

Submission (Jan. 6, 2012), PDoc-II-76 at Ex. 2. The plaintiff emphasize, more importantly, that the

defendant issued to the DAM letters containing questions about the manner in which the agency

collected, analyzed and disseminated wholesale prices for Pangasius fish, but that the DAM,
Consol. Court No. 12-00087 Page 14

significantly, failed to respond to either of the defendant’s letters requesting that information. IDM

at cmt 1.

According to the defendant, the focus of its questions to the DAM rested on the

“public availability of the [DAM] worksheets” and so were not probative of the overall reliability

of the DAM website data. Remand Results at 7 & 20. The defendant agrees with the plaintiffs that

the questions it sent to the DAM “did not only pertain to public availability”, but states that public

availability was a “significant reason” for sending the information requests to the DAM. In the

preliminary results, Commerce based its decision not to use the DAM data primarily on its finding

that the DAM worksheet data were not publicly available, despite having found that the DAM

worksheet data satisfied the other SV criteria. See Certain Frozen Fish Fillets From the Socialist

Republic of Vietnam: Preliminary Results and Partial Rescission of the Seventh Antidumping Duty

Administrative Review, 76 Fed. Reg. 55872, 55876-77 (Sept. 9, 2011) (“[a]s a result of the

uncertainty regarding public availability of the DAM [worksheet] data, we find that Bangladesh does

not provide the best available information with respect to valuation of whole live fish for purposes

of the preliminary results”). In the Final Results, Commerce’s concerns regarding public availability

were resolved because the DAM website data placed on the record were publicly available. IDM

at cmt 1.C. Commerce therefore determined that because the DAM website data were species-

specific, represent a broad market average, contemporaneous with the POR, from an approved

surrogate country, tax- and duty-exclusive, and publicly available, these data were the best available

information on this record for valuing the whole fish input. Id.; see Remand Results at 3-4, 7-10.

The plaintiffs argue that because the DAM did not respond to Commerce’s other

questions regarding data validation and reliability, the DAM data cannot represent the best available
Consol. Court No. 12-00087 Page 15

information. Despite the court’s continued concerns on this point, the plaintiffs do not persuade that

further remand will be fruitful. Commerce must value the factors of production “based on the best

available information regarding the values of such factors”. 19 U.S.C. §1677b(c)(1). Commerce

found flaws with each of the datasets placed on the record from which to value whole live fish.

Commerce found the BAS data specific to the species and publicly available, but less

contemporaneous than the DAM data and less representative of a broad market average. IDM at cmt

1.C. Commerce similarly found the FIGIS data less contemporaneous than the DAM data and less

specific than the DAM data, as the FIGIS data include prices for one species of Pangasius not

covered by the antidumping duty order whereas the DAM data are specific to Pangasius

hypothalamus, the species specific to the respondents’ input. See id. at 1.B & C.

“When all the available information is flawed in some way, Commerce must make

a judgment call as to what constitutes the ‘best’ information.” Lifestyle Enterprise, Inc. v. United

States, 751 F.3d 1371, 1378 (Fed. Cir. 2014). Despite the DAM’s non-responsiveness to

Commerce’s requests for information, Commerce found that, on this record, the DAM website data

satisfy its criteria for selecting the best available information, and that the DAM website data are

a “more robust data source . . . especially with respect to specificity and contemporaneity” than the

BAS or FIGIS data. IDM at cmt 1.C. While the court may have concerns regarding the non-

responsiveness of the DAM and the verification of the DAM website data, as pointed out by the

plaintiffs, it cannot substitute its own judgment for that of Commerce. Timken, 26 CIT at 592.

Commerce determined that the DAM website data satisfy its criteria and that the DAM data were

superior to the other data sources on the record. The court finds this determination supported by

substantial evidence.
Consol. Court No. 12-00087 Page 16

III

On remand, Commerce determined different by-product SVs for fish waste, fresh

broken fillets, frozen broken fillets, and fish oil. Remand Results at 12-16. Commerce notes that

there appear to be no challenges to the SVs for fish waste, fresh broken fillets and frozen broken

fillets. Def’s Resp. at 21; see generally Pls’ Cmts, Def-Int’s Cmts, and Pls’ Resp.

For the fish oil SV, Commerce considered an Indonesian supplier price quote

proffered by the plaintiffs, but ultimately found that the price quote was not the best available

information because it did not meet the selection criterion for contemporaneity and appeared to be

an unofficial price quote with no indication on the record that it reflected a market price. Remand

Results at 15. Commerce therefore continued to value the fish oil by-product using the Indonesian

Global Trade Atlas (“GTA”) GTA import statistics data for Harmonized Tariff Schedule (“HTS”)

subheading 1504.20.90.00,9 but capped (i.e. applied a ceiling to) the price at the calculated value of

the FOPs and ratios used by Vinh Hoan to make fish oil in order to ensure that the value was “fully

loaded”.10 Def’s Resp. at 17-18; see also Remand Results at 15. Respondent Vinh Hoan challenges

this SV determination as unsupported by substantial evidence.

However, in the Final Results and again in the Remand Results, Commerce

determined that Vinh Hoan had a dumping margin of 0.00%, thus de minimis under 19 C.F.R. §

351.106(c)(2). Final Result, 77 Fed. Reg. at 88579; Remand Results at 29. Even if Vinh Hoan is

9
HTS 1504.20.90.00 covers “Fish Fats & Oils & Their Fractions Exc Liver, Refined Or
Not, Not Chemically Mod, Solid Fractions, Not Chemically Mod, Other”.
10
Commerce explains that “fully loaded” here means “a value that accounts for the total
sum of the value-added from converting fish waste/scrap to fish oil by including processing costs,
overhead, selling and general administrative expenses (SG&A), and profit.” Def’s Resp. at 18.
Consol. Court No. 12-00087 Page 17

correct in its assertions against the defendant, a remand here would have no effect on Vinh Hoan’s

margin. As summarized in Allegheny Ludlum Corp. v. United States:

The Supreme Court thus requires application of a two-part test to
determine whether a case is ripe for judicial action. First, the court
must determine whether the issues are fit for judicial decision -- that
is, whether there is a present case or controversy between the parties,
see Lake Carriers’ Ass’n v. MacMullen, 406 U.S. 498, 502 (1972);
BP Chems Ltd. v. Union Carbide Corp., 4 F.3d 957, 977 (Fed. Cir.
1993); and second, whether there is sufficient risk of immediate
hardship to warrant prompt adjudication -- that is, whether
withholding judicial decision would work undue hardship on the
parties, MacMullen, 406 U.S. at 506; Pacific Gas & Elec. Co. v. State
Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 200-
01 (1983). Both prongs must be satisfied before an Article III court
may apply its adjudicative powers to a case’s merits.

Allegheny Ludlum Corp. v. United States, 24 CIT 1424, 1448-49, 215 F. Supp. 2d 1322, 1344 (2000)

(internal quotes and citations omitted) (“Allegheny”). The test is whether a present controversy

exists as to which effective relief may be granted. Associacao Dos Industriais de Cordoaria E

Redes v. United States, 17 CIT 754, 759, 828 F. Supp. 978, 984 (1993) (“Cordoaria”).11 Further,

“a case will be dismissed as moot when the challenge presented to the [c]ourt cannot result in

meaningful remedy.” Verson v. United States, 22 CIT 151, 153, 5 F. Supp 2d 963, 966-67 (1998)

(internal citations omitted). Here, an actual controversy no longer remains in this case because if

Commerce redetermined the SV calculation in Vinh Hoan’s favor, such determination would not

alter the duty margin; it would still conceptually remain de minimis. Thus, “no live case or

controversy exists because there is no actual injury that can be redressed by a favorable judicial

11
Relief may exist for controversies that appear moot, but are “capable of repetition, yet
evade review.” Cordoaria, 828 F. Supp at 984. That is not the case here, as this matter is not one
that would “evade” review by agency expedient.
Consol. Court No. 12-00087 Page 18

decision.” See Verson, 22 CIT 151 at 154 (internal citations omitted). Vinh Hoan’s arguments are

rendered moot because the relief requested would not result in improvement to its margin.

Conclusion

Because the court finds the Remand Results supported by substantial evidence on the

record, the results will be sustained and judgment entered accordingly.

/s/ R. Kenton Musgrave
R. Kenton Musgrave, Senior Judge

Decided: March 30, 2016
New York, New York