11th ADD Review on Frozen Fish Fillets from Vietnam Remanded in Part

In An Giang Fisheries Import and Export Joint Stock Company et al., v. United States, Court No. 16-72, Slip Op. 18-10 (published February 21, 2010), the court sustained in part and remanded in part, the U.S. Department of Commerce’s final determination in the eleventh antidumping administrative review of certain frozen fish fillets from the Socialist Republic of Vietnam.  Commerce initiated this eleventh ADD administrative review covering subject imports entered during the period of review (“POR”), August 1, 2013 through July 31,2014. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 79 Fed. Reg. 58,729, 58,731–32 (Dep’t Commerce Sept. 30, 2014) (initiation of [ADD] administrative review in Certain Frozen Fish Fillets from [Vietnam], A-552-801). Commerce subsequently selected Vinh Hoan Corporation (“Vinh Hoan”) and HVG as mandatory respondents in this review.

The Court sustained most of findings in the review.  For example, the court held that Commerce’s use of facts otherwise available to calculate HVG’s and Thuan An Production Trading & Services Co., Ltd.’s (“TAFISHCO”) normal value was supported by record evidence where respondents did not provide factors of production (FOP) on a CONNUM-specific basis  (“CONNUM” are control-numbers created by Commerce and specific to the subject merchandise, where they identify the key physical characteristics that are commercially meaningful to the U.S. market) and they failed to accurately report water soaking levels of the fillets sold in the United States. Likewise, the Court sustained Commerce’s surrogate value selections for fish feed, fingerlings, water, fish waste by-product, and packing tape.

However, the Court remanded HVG’s farming FOPs because Commerce’s adjustment to the farming FOP denominator without adjusting the numerator wrongfully inflated HVG’s farming FOP. While Commerce adjusted the denominator to represent “shark equivalent” farming FOP to account for differences in whole fish to subject merchandise (shank fillets)FOP, the numerator had no such adjustment as Commerce simply added farming FOPs from all farming activities at HVG, Agifish, and Europe JSC.

For these reasons, the Court sustained and remanded this decision in part.

TAA Decision Sustained in Full

In Former Employees of Geokinetics v. United States Secretary of Labor Slip Op. 18-11, Court No. 16-00057 (February 16, 2018) the Court reviewed the Department of Labor’s determinations on remand in a Trade Adjustment Assistance (“TAA”) case. On remand Labor was to reconsider the appropriate time period for assessing Geokinetics’ decrease in sales, “whether like imports had shifted to foreign countries, or explain why it was reasonable not to examine whether like imports had shifted to foreign countries; and to explain its determination not to certify Plaintiffs as secondary workers eligible for TAA benefits.” Id. at 7. For the following reasons the Court sustains Labor’s remand results in full.

The first issue was Labor’s failure in explaining the reasoning for not requesting necessary sales data from Geokinetics. On remand, Labor requested data for all the necessary time periods and explained its general practice was to request data “through the month that just ended” when a TAA petition is filed. Id. at 10. Labor admitted it had inadvertently not requested the data.

The next issue was the Court’s concern that Labor had not explained the process of determining a product shift of like articles, properly to Geokinetics. It was not clear that Labor considered whether there was a shift in production of seismic data services in foreign countries or acquisition of seismic data services from foreign countries. On remand, Labor again found that there was no shift in production in seismic data services. However, Labor took steps to “ensure that Geokinetics understood that it was to report whether the firm had or planned to shift” seismic data services to a foreign country or overseas.

Finally, the Court sustained Labor’s determination that Geokinetics employees were not eligible for assistance as secondary workers. Secondary workers are eligible for TAA assistance if a client firm’s “workers are eligible for adjustment assistance benefits” and these clients accounted for a significant percentage of the decline in sales that Geokinetics experienced over the review.  The Court said that because Labor provided evidence it had searched data bases of “all of the firms provided in Geokinetics’ client list” that its determination would be upheld.  Id. at 26.