UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 25-24

Before the Court in Catfish Farmers of America v. United States, Court No. 20-00105, Slip Op. 25-24 (March 10, 2025) was a challenge to the U.S. Department of Commerce’s use of India rather than Indonesia as the primary surrogate country in connection to Commerce’s 15th administrative review of its antidumping order on Vietnamese catfish returns for its third visit. This case concerns the facts in previous Court of International Trade decisions including NTSF Seafoods Joint Stock Co. v. United States, Ct. Nos. 20-00104 and 20-00105, Slip Op. 22-38, 2022 WL 1375140 (CIT Apr. 25, 2022), and Catfish Farmers of Am. v. United States, Ct. No. 20-00105, Slip Op. 24-23, 2024 WL 775181 (CIT Feb. 26, 2024).

The issue turned on the Catfish Farmers’ challenge to agency’s selection of India, which was decided by the agency after the court, in its most recent opinion, remanded the case for reconsideration. Because the imports in question originate Vietnam, a non-market economy country, according to the Tariff Act of 1930, as amended [19 U.S.C. § 1677b(c)(1)], Commerce must calculate the production costs based upon the best available information as to such costs in a market economy country or countries that it considers to be appropriate, also known as surrogate countries. In selecting a surrogate country, Commerce must use to the extent possible, market-economy countries that have levels of economic development comparable to the non-market economy in question. Catfish Farmers’ argument was based the requirement that, where more than one potential surrogate country exists with a comparable economic development level as the non-market economy country, the Commerce must compare the relative quality of the surrogate value data available from each to select a primary surrogate country. Commerce determined that both India and Indonesia are at such comparable levels. In comparing competing datasets for its selection, the agency considered whether the data is publicly available, contemporaneous with the period of review, tax- and duty- exclusive, representative o broad market averages, and specific to the inputs. On remand, the agency reconsidered the Indian and Indonesian data for whole live fish, fingerlings, and labor. The Court of International Trade sustained Commerce’s selection of Indian datasets because it considered Commerce’s explanations reasonable and supported by the  administrative record. With respect to whole live fish data, Indian data was chosen because its source was a trade publication, Fishing Chimes, whereas Indonesian figures consisted of government data, which were not species-specific and only partly contemporaneous with the period of review. Indian data was found reflective of broad market average. Catfish contested that the Indian study addressed two districts within the same state, Andhra Pradesh – the largest-producing state in India – and 254 villages outside of those districts. Catfish Farmers disputed the fact that the Fishing Chimes publication does not address either how many actual farms (rather than villages) are in that state or in the relevant two districts, or what percentage of production the studied farms represent in those areas. However, Commerce considered those facts to render the data representative and usable because not all fish farmers seed and harvest on the same schedule, so they do not save data for every month. Moreover, Fishing Chimes conducted their study over a two-year period instead of “relying on any given month as a snapshot and cross-checked its data. Farm-specific information was deemed unnecessary the estimated aggregate production volume covered by the survey was substantial.

With respect to fingerlings, Commerce found that publication’s data  superior to the Indonesian information proffered by Catfish Farmers for three reasons: (1) the former were “based on responses from numerous farmers and . . . corroborated by field visits and comparisons to other data sources”; (2) the latter was less specific as to species; and (3) most importantly, unlike the former, the latter did not cover fingerlings over five inches in size. The agency emphasized that NTSF reported using fingerlings of 5.7 inches or larger, and noted that the Indonesian government official who provided that country’s information failed to state how the figures were determined and gave no citations to source or corroborating information. Although Catfish Farmers complained that the Indian figures lacked volume data, Commerce noted that the Indonesian information did as well. Commerce found Indian data superior because the prices reflect the purchase price of fingerlings in the major producing region of India, Andhra Pradesh.

The final data quality issues involved labor costs. On this point, the Department acknowledged that the Indian labor information is not contemporaneous with the period of review but explained it chose those figures anyway (after applying an inflator) under its policy of choosing data from one country insofar as possible. Nevertheless, based on the available information regarding whole live fish and fingerlings, it deemed the labor figures usable, explaining that it will use a secondary surrogate country only when data from the country with higher quality information overall are  unavailable or unreliable. Despite Catfish Farmers’ argument that Commerce did not explain why it was reasonable to rely on non-contemporaneous labor data, the Court sustained Commerce’s decision. Commerce explained that although Indian figures’ non-contemporaneity was a significant weakness, it was the only weakness, which does not outweigh the agency’s aim in using information from a single country as much as possible. Commerce prioritized using data from a single country over contemporaneous data to avoid distortion. It found an Indian company’s  financial statement reliable, while the Indonesian data was inadequate. The court interpreted the Commerce’s analysis as a finding that neither country’s labor data were superior on their own  merits. The court upheld Commerce’s decision to use Indian labor data as reasonable and supported by substantial evidence.