Commerce Can't Grant Separate Rate to Uncooperative Respondent in AD Review, Exporter Argues

The Commerce Department illegally assigned an adverse facts available rate to mandatory respondent East Sea Seafoods Joint Stock Company in an antidumping duty review since the company stopped participating in the review, exporter Green Farms Seafood Joint Stock Company said in its April 20 complaint at the Court of International Trade. Seeing as Green Farms' separate rate was found via a simple average of the AFA rate and the other respondent's "zero" rate, this separate rate should also be found to be illegally based on AFA as it does not accurately reflect Green Farms' dumping level, the brief said (Green Farms Seafood Joint Stock Company v. United States, CIT #22-00092).

The case concerns the 17th administrative review of the antidumping duty order on frozen fish fillets from Vietnam. The two mandatory respondents tapped for the review were East Sea and NTSF Seafoods Joint Stock Company. NTSF participated in the review and got a $0.0/kg dumping rate, while East Sea withdrew from participation after submitting some questionnaire responses and received an AFA rate of $3.87/kg. Green Farms applied for a separate rate and got a simple average of the two rates, landing on a $1.94/kg margin.

Green Farms then took its case to the trade court, arguing Commerce unlawfully granted a separate rate to East Sea, seeing as the company failed to provide full and complete responses to Commerce's inquiries. "East Sea failed to satisfy the threshold legal requirements necessary to rebut the presumption [of government control] and demonstrate eligibility for a separate rate," the brief said. "Although East Sea submitted an initial Separate Rate Certification (“SRC”) and portions of its mandatory respondent AD questionnaire response, it nevertheless failed to provide a full and complete response to all sections of Commerce’s AD questionnaires."

Green Farms also argued that there was a lack of evidence supporting East Sea's rate. Not only were there deficiencies in the respondent's submissions since it didn't respond to all of Commerce's questionnaires, but its factual information, and separate rate status, were deemed unreliable by its decision to cease participating in the review, the complaint said. Green Farms lastly took issue with Commerce's averaging of the two rates to come up with its separate rate since this rate is allegedly not representative of its dumping level.