Trade Court Upholds AFA Reversal Due to Lack of Help Given to First-Time AD Respondent

The Commerce Department rightly made the switch to neutral facts available from adverse facts available in an antidumping review, following a previous Court of International Trade decision that found Commerce failed to adequately give assistance to a small, first-time respondent, CIT said in a Sept. 20 decision.

The plaintiffs -- composed of Calcutta Foods, Bay Seafood and Elque & Co., referred to as the Elque Group -- had sued Commerce over the final results of the 2017-18 administrative review of the antidumping duty orders on certain frozen warmwater shrimp from India. Commerce applied AFA to the Elque Group in the review for incomplete filings. The exporters claimed they did not intentionally mislead Commerce by providing false or incomplete information related to the review, and that they requested Commerce's help since the group did not have the means to produce the proper information and were first-time respondents to an antidumping review.

In the case's first opinion, Judge Gary Katzmann said that the Elque Group properly alerted Commerce to its need for help and that the agency failed to give it. "Because Commerce failed to 'take into account any difficulties' experienced by the Elque Group during the review, as required by 19 U.S.C. § 1677m(c)(2), the court further concluded that Commerce did not provide adequate assistance to the Elque Group as a small company respondent," Katzmann said, summarizing his first opinion.

Commerce then applied neutral facts available in its remand results, finding that they still could not rely on the Elque Group's submitted costs (see 2105040059). Instead, the agency reallocated the plaintiffs' input costs using previously submitted sales data and recalculated their general and administrative expense ratio “using the information contained in the reported trial balance for the fiscal year ending March 31, 2018.” This led to the Elque Group's margin being slashed from 110.9% to 27.66%.

(Calcutta Seafoods Pvt. Ltd., et al. v. United States, Slip Op. 21-123, CIT # 19-00201, dated 09/20/21, Judge Gary Katzmann. Attorneys: Neil Ellis of Sidley Austin for plaintiffs; Kara Westercamp for defendant U.S. government)