US Supports India Surrogate Country Pick in Vietnamese Fish Fillets AD Review

The Commerce Department properly tapped India as the primary surrogate country in an antidumping duty review on frozen fish filets from Vietnam, the U.S. argued in a Jan. 3 reply brief at the Court of International Trade. Responding to arguments from Catfish Farmers of America vying for Indonesia to be the primary surrogate country, the government said that these claims do not undermine the choice of India and at most just seek to include Indonesia in the list of countries under consideration for the primary surrogate country (Catfish Farmers of America, et al. v. United States, CIT # 20-00105).

"At bottom, CFA is simply dissatisfied with the results produced by Commerce’s application of its consistent surrogate country list practice," the brief said. "Nonetheless, 'Commerce has provided reasoned analysis in support of its surrogate country determination,' and Commerce is not required to consider CFA’s unsupported demand that it must consider Indonesia to be at the same level of economic comparability as Vietnam, such that it is included on the surrogate country list," it said, quoting a 2016 Federal Circuit decision.

In April, the trade court sent back elements of the review, including the primary surrogate country choice. In the review, Commerce identified six potential surrogate countries, one of which was India. However, Catfish Farmers of America submitted data promoting Indonesia as a surrogate, arguing that India should have been disqualified as a surrogate because it's not a significant producer of comparable merchandise and even if it were, Commerce still should have used Indonesia, which has a comparable level of economic development to Vietnam and superior data compared with India's.

The court sent the issue back to Commerce (see 2205030068), finding that the agency failed to address the point of whether Indonesia is at a comparable level of economic development using the same World Bank gross national income (GNI) data it used to find that India was at a comparable level of economic development to Vietnam.

On remand, Commerce first explained its sequential surrogate country selection process (see 2208240036). In this method, the agency looks to pick a country at the same level -- not a comparable level -- of economic development as the nonmarket economy, then looks at whether the country is a significant producer of comparable merchandise and if it has usable surrogate value data. Applying this method to the present review, Commerce said picking India over Indonesia was consistent with the agency's past determinations and the court's past decisions. Looking to the GNI data on which the court based the remand, Commerce said India was identified as having the same economic development level as Vietnam, while Indonesia was outside the per capita GNI range.

Now responding to comments from the petitioner, the U.S. said that Catfish Farmers of America "largely repeats the same argument that Commerce, this Court, and the United States Court of Appeals for the Federal Circuit, have found unpersuasive -- that the determination that Indonesia is not economically comparable to Vietnam in this review is 'inadequate' because 'Commerce had selected Indonesia as its primary surrogate country in prior reviews where there was a much greater difference between Vietnam’s and Indonesia’s GNIs.'"