Non-Response to Questionnaire Should Mean AFA, Not Vietnam-Wide Rate, AD Petitioner Says

The Commerce Department correctly assigned an adverse facts available rate to a Vietnamese exporter for its failure to respond to a supplemental questionnaire, even though it had previously found the company was not under government control and granted it a separate rate, the Catfish Farmers of America, a defendant-intervenor, argued in its Feb. 10 response brief at the Court of International Trade (Green Farms Seafood Joint Stock Company v. United States, CIT # 22-00092).

The brief argues in favor of upholding the final results of Commerce's 2019-2020 administrative review of the antidumping duty order on frozen fish fillets from Vietnam. In that review, Commerce found that East Sea Seafoods was not under Vietnamese government control and granted the company a separate rate. However, when East Sea failed to respond to a supplemental questionnaire, Commerce ruled it had withdrawn from participation and assigned it a rate calculated with adverse facts available and then used that rate in its average calculation for Green Farms. The other mandatory respondent was NTSF Seafoods Joint Stock Company, which participated in the review and got a zero percent rate (see 2204200028).

Green Farms filed a motion for judgment Oct. 10 challenging both Commerce's decision to find East Sea eligible for a separate rate and the use of East Sea's preliminary margin in determining Green Farms' margin. Green Farms argued East Sea should have been found ineligible for a separate rate because it had not fully responded to questionnaires and had not adequately proven its freedom from government control. Green Farms' margin should not have been calculated using East Sea's adverse facts margin because the resulting $1.94/kg rate was calculated from "two extremes" and did not reflect Green Farms' potential dumping liability.

In its response, the Catfish Farmers of America called on the court to affirm Commerce's determination and methodology. East Sea's failure to respond to questionnaires regarded issues separate from "the company's independence from government control," CFA argued. "Adopting the view that a separate rate must be denied if any portion of a questionnaire [went unanswered] would hamstring [Commerce's] ability to use the deterrent effect of AFA," CFA said.

As for the rate calculation, AD/CVD laws "expressly contemplate averaging zero and AFA margins" to determine the rate for companies not individually examined, CFA said. Further, the statute states Commerce may use "any reasonable method" to determine the margin for those non-individually examined respondents, CFA said. The rate that Green Farms argued against "was derived using a method that Congress has deemed facially reasonable," CFA said. There's no "merit to Green Farms' arguments that, as applied, the method produced unreasonable results here." Finally, while Green Farms argues that its rate "resulted from the averaging of 'extreme opposites,' it nonetheless advocates for one of the two margins it deems 'extreme' -- NTSF's zero margin -- to be assigned to it outright," CFA said.