On Remand, Commerce Still Supports India as Surrogate in Vietnamese Frozen Fish Review

The Commerce Department released its remand results Oct. 18 in a case regarding the antidumping duty review on frozen fish fillets from Vietnam, maintaining its earlier determinations but providing more detailed analyses for each (Catfish Farmers of America, et al. v. United States, CIT # 22-00125).

The department provided a lengthy defense of its sequential method of selecting a surrogate county in a review -- first looking at countries at the “same” level of development as the nonmarket economy being reviewed, then ensuring that at least one among these countries is a significant exporter of like merchandise, provides a “reliable source of publicly available surrogate data” and generally has no other flaws.

Surrogate countries that are only at comparable levels, not the same level, of economic development as the NME country are only selected “to the extent that data considerations outweigh the difference in levels of economic development,” it said.

It said this has been repeatedly upheld by the courts and is beneficial to all parties, as it means that parties may “focus their attention” and resources on only a few potential surrogates.

Commerce nevertheless also specifically compared the data offered by its chosen surrogate, India, with that preferred by petitioners, Indonesia. India’s GNI is much closer to Vietnam’s, it noted first. It also said that India offers much more reliable data regarding the pricing and costs of inputs such as whole live fish and fish feed; the data from Indonesia stems from two affidavits from employees of the Indonesian Ministry of Marine Affairs and Fisheries procured by the petitioners’ lawyers.

The department also defended its granting of separate rates to nonselected respondent Green Farms Seafood Joint Stock Company and mandatory respondent East Sea Seafoods Joint Stock Company.

Both companies provided enough information to Commerce to demonstrate it was not under government control, either de jure or de facto, the department said. East Sea Seafoods and Green Farms both demonstrated that they were owned by individuals not affiliated with the Vietnamese government, that no laws existed on the books directing how they ran their company and that the government didn’t interfere with their operations in any way, it said.

East Sea Seafoods, for example, provided Commerce a sales contract between itself and a U.S. customer that indicated its prices were set through negotiation, not government control, the department said.

It also defended its decision to assign Green Farms a separate rate based on the average of East Sea Seafoods’ adverse facts available rate and the other mandatory respondent’s de minimis one. Green Farms’ U.S. prices fell between the de minimis respondent’s and East Sea Seafood’s, it noted.