U.S. Department of Commerce Issues An Unlawful & Punitive Final Determination in Frozen Fish Fillets Antidumping Case

This radical departure from 8 years of legal precedent relates to the use of a new surrogate country, Indonesia, to value inputs of raw materials used in fish processing.   Because Vietnam is considered to be a “non market economy” by the US Government, the US DOC uses third country prices to value Vietnamese inputs. 

Indonesia has been rejected in prior reviews due to poor data quality and lack of viable financial statements.  The DOC itself declared that Indonesia is not “economically comparable” to Vietnam for a majority of the months covered by the review period, and then barred Vietnam from citing to this decision on the untenable position that it was “new information.” 

In the final results, the DOC based its valuation of whole live fish prices – the primary input in the fish fillet case – on one Indonesian government pricing study which showed radical fluctuations in pricing and was not based on actual prices, but on calculated national averages from a handful of districts.

The DOC engineered this punitive result after intense political lobbying on behalf of the US domestic industry, the Catfish Farmers of America (CFA).  There was no attempt to hide the multiple high-level meetings and lobbying efforts made on behalf of the CFA directly to the DOC.  It clearly draws into question the fairness of the process and the alleged “neutral” nature of the DOC decision-makers.   Vietnamese respondents have fully cooperated with DOC through multiple on-site verifications and the filing of full and complete responses and data over nearly 18 months.

For the past 8 years, the DOC has consistently used Bangladesh to value Vietnamese fish inputs, continually rejecting Philippines and Indonesia due to the poor quality of the pricing data, the lack of publicly available financial data, and the fact that these countries have no exports to other countries.  No material changes had been made to these facts in this review. 

Bangladesh is farming Pangasius Hypophthalmus in ponds like Vietnam. Producers in the two countries share the reasonably comparable production cost and revenue. While Indonesia farms five different catfish species. Thus, there is even no specific data in its output of Pangasius Hypophthalmus.

In fact, the DOC continued to follow this well-reasoned policy even through the most recent new shipper review, published only a few weeks ago.  There was no record evidence in the 8^th review that Indonesia had improved its position as a viable surrogate country or that the data was any more reliable. We must therefore believe that domestic politics played a very obvious role in this decision.

The final duty rates for the reviewed companies – although not effective until a final determination is made – average between $0.19/kg and $1.34/kg, with all other separate rates companies receiving a $0.77/kg duty rate.  These exceed 100% in additional duties.  These rates effectively bar the reviewed Vietnamese exporters from the US market and are punitive, not remedial. 

VASEP, together with individual fish exporters and the relevant trade remedy bureaus of the Vietnamese Government are studying all options in addressing this punitive result and its legality under U.S. law and the WTO.  Further, there will be a comprehensive review of its impact on bi-lateral relations. 

VASEP