CIT Sustains Commerce's Decision to Grant Byproduct Offsets on Remand in AD Case

The Commerce Department's decision to grant byproduct offsets for an antidumping review respondent's fish oil and fish meal exports was backed by sufficient evidence, the Court of International Trade said in a Sept. 20 order. Judge Jennifer Choe-Groves also ruled that Commerce's determination that the Global Trade Atlas' (GTA) data was the best available to calculate a surrogate value for the two byproducts was properly supported.

The case was brought by respondent NTSF Seafoods Joint Stock Co. and originated from the 14th administrative review of the antidumping duty order on fish fillets from Vietnam covering entries from 2016 to 2017. In the underlying review, Commerce granted byproduct offsets for NTSF's fish fat, skin, broken meat, and head and bone. But, NTSF sought offsets for two other products: fish meal and fish oil, which derive from the fish's head and bone. Commerce granted the offsets only to the head and bone, finding that NTSF did not sell the fish oil and fish meal during the last three months of the period of review. Commerce said that NTSF sold the head and bone to an unaffiliated toller.

NTSF argued that it maintained control of the fish meal and fish oil after transferring the head and bone to the toller. In the case's first opinion, Choe-Groves said that Commerce's denial of these byproduct offsets was unsupported in light of contradictory evidence. On remand, Commerce granted the byproduct offsets for the fish meal and fish oil. This prompted comments from the antidumping petitioners, led by the Catfish Farmers of America, who argued against the decision to grant the offsets and also the surrogate data the agency used for the offsets (see 2105120026).

In its remand results, Commerce said that NTSF properly reconciled its byproduct reporting and substantiated the offset, maintaining control over the byproducts pursuant to the tolling agreement. “The Court concludes, therefore, that Commerce’s determinations that NTSF reconciled its byproduct reporting properly and that NTSF substantiated its fish oil and fish meal byproducts sufficiently to receive an offset are supported by substantial record evidence cited by Commerce, including NTSF’s processing contract, financial statements, and production data,” Choe-Groves said.

The court also upheld Commerce's valuation of the byproduct offsets using data from the GTA, based on surrogate values from Indonesian import data. “The Court notes that record evidence supports Commerce’s determination that the GTA Data are product-specific,” the judge said. “For example, Commerce used the [Harmonized Tariff Schedule] heading 2301.20.20 'Flours, meals and pellets, of fish, with a protein content of 60% or more by weight' for NTSF’s fish meal byproducts and heading 1504.20.90 'Fats and oils and their fractions, of fish, other than liver oils: Other' for NTSF’s fish oil byproducts.”

(NTSF Seafoods Joint Stock Co., et al. v. United States, Slip Op. 21-121, CIT # 19-00063, dated 09/20/21, Judge Jennifer Choe-Groves. Attorneys: Jonathan Freed of Trade Pacific for plaintiff NTSF; Jonathan Zielinski of Cassidy Levy for defendant-intervenor Catfish Farmers of America; Kara Westercamp for defendant U.S. government)