Commerce Misunderstood Court Orders by Enacting Lower All-Others Rate in AD Case, Petitioner Says

May 26, 2021 by Jacob Kopnick|Litigation

The Commerce Department erred in its second remand results in an antidumping case when it departed from the "expected method" for calculating an all-other respondent AD duty rate, defendant-intervenors, led by Catfish Farmers of America, said in comments on the remand results dated May 24. The industry trade group argued that Commerce misunderstood CIT's remand directions when it switched to the "other reasonable method" approach under protest. Instead, the court sought only further explanation, it said (GODACO Seafood Joint Stock Company, et al., v. United States, CIT #21-00063).

The case stems from a challenge to the final results of the 2015-16 administrative review of the antidumping duty order on certain frozen fish fillets from Vietnam. In the case, Commerce determined that it needed to apply total adverse facts available to the mandatory respondents, resulting in a dumping margin of $3.87/kg. When determining the all-others rate for non-examined respondents when the mandatory respondents have zero or AFA rates, Commerce, by law, is to use the "expected method" where the agency weight-averages the respondents' rates to come up with the all-others rate. If it deviates from this method, it must explain why.

In its remand, CIT cited Commerce's conflicting use of "expected method" and "any reasonable method" in describing the way by which the agency arrived at the all-others rate. The court determined that the agency must have departed from the expected method, and that Commerce, by law, needed to further explain itself. Commerce's reversal in its second remand was not required by CIT's decision, CFA contends. Reverting to using the expected method would resolve many of the court's issues, CFA said. "Commerce’s departure from the 'expected method' and its adoption of an alternative method to calculate the revised $0.89/kg all-others rate was contrary to the law ... and this Court’s explicit instructions," the comments said.