AD Petitioner Blasts US Defense of Surrogate Country Pick in Fish Fillet AD Review
The Commerce Department is required by its own policies to use the country with the best data as the surrogate country in antidumping duty proceedings, the Catfish Farmers of America and other plaintiffs said in a March 10 reply brief. Although Commerce argued the AD laws didn't require it to look into whether Indonesia offered "superior" data for the 2019-20 review on frozen fish fillets from Vietnam, the Catfish Farmers pointed to Import Administration Policy Bulletin 04.1, which says if more than one country meets the statutory requirements for surrogates, that Commerce "will rely on values from the country that provides the highest quality data" (Catfish Farmers of America v. United States, CIT # 22-00125).
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Commerce had said during the review that six countries, not including Indonesia, were economically comparable to Vietnam. The agency ultimately went with India, finding that India, and not Indonesia, were comparable to Vietnam. Commerce also found India was a significant producer of goods comparable to the subject fillets and India gave the best available information for the main inputs. The Catfish Farmers filed suit at CIT to contest these points.
The Catfish Farmers said that the U.S. used the same reasoning for the rejection of Indonesia as a surrogate country that it used in the 2017-18 review -- a position remanded by the trade court for not being adequately explained. This time, though the government tacked on a few new paragraphs of explanation, "the additional paragraphs do not meaningfully distinguish the agency’s analysis here from the remanded analysis," the brief said.
"As in the 2017-2018 review, [Commerce] found that Indonesia is not economically comparable with Vietnam because Indonesia was not on the list of economically comparable countries developed by the agency’s Office of Policy, 'with no explanation of how mere inclusion on that list could somehow be determinative.' And while [Commerce] stated that it was not legally required to consider Indonesia as a potential surrogate country, the standard of review requires [Commerce] to make reasonable, non-arbitrary, adequately explained determinations grounded in substantial record evidence."
The Catfish Farmers also challenged Commerce's use of the Indian data to value specific factors of production. For instance, the petitioners relied on the trade court's past remand of the 2017-18 review to argue that the flaws in the Indian data are "even more pronounced given the passage of time. ... The data’s lack of contemporaneity directly implicates the question of whether they reflect broad market averages, given the record’s indication that Andhra Pradesh’s share of Indian pangasius production has been rapidly declining."