Commerce Properly Adhered to Court Orders by Setting Lower All-Others Rate in AD Case, DOJ Says

The petitioner in an antidumping case, Catfish Farmers of America, is incorrect in its assessment that the Commerce Department erred by departing from the "expected method" for calculating the antidumping duty rate for non-individually reviewed "separate rate" respondents in an administrative review on frozen fish fillets from Vietnam, the Department of Justice said. Responding to the petitioner in June 28 comments on the second remand results at the Court of International Trade, DOJ, along with comments from the plaintiffs led by GODACO Seafood Joint Stock Company, said Commerce properly adhered to court orders by setting a lower rate for the exporters (GODACO Seafood Joint Stock Company, et al., v. United States, CIT #21-00063).

During the 2015-16 review on fish fillets, Commerce decided to apply total adverse facts available to the mandatory respondents, leading to a $3.87/kg dumping margin. When setting the rate for non-individually examined respondents when the mandatory respondents have zero or AFA rates, Commerce is to use the "expected method" where the agency weight-averages the respondents' rates to find the all-others rate, by law. Any deviation from this method must be explained (see 2105250060).

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 non-individual rate. The court determined that the agency must have departed from the expected method, and that Commerce, by law, needed to further explain itself. CFA said Commerce's subsequentswitch tothe expected method was not required by the CIT decision and in fact contrary to the court's instructions.

DOJ and the plaintiffs disagreed, finding that simply clarifying that Commerce's position was consistent with the expected method would not comply with the court's orders. The court held as unreasonable the use of the AFA rate to the fully compliant non-mandatory respondents, DOJ said. “CFA does not engage in any meaningful way with the Court’s analysis and conclusion regarding the application of the $3.87 per kilogram total adverse facts available rate to fully cooperating separate rate companies, which the Court held is unreasonable," the government said.

The plaintiffs backed this argument by DOJ, finding that Commerce's application of a rate other than the total AFA rate to the separate rate plaintiffs is reasonable. "Commerce explained its departure from the 'expected method' as being a necessary consequence of the Court's order in light of the absence of affirmative information demonstrating that the $3.87 per kilogram rate is reflective of Separate Rate Plaintiffs' actual dumping margins," the plaintiffs said.