Uncooperative Respondent Should Not Affect Vietnam-Wide AD Rate, Petitioner Says

The Commerce Department should not have granted an non-cooperative Vietnamese frozen fish exporter a separate antidumping rate during an AD review,Green Farms Seafood argued in its March 10 reply brief at the Court of International Trade (Green Farms Seafood v. U.S., CIT # 22-00092). Commerce's subsequent averaging of the adverse facts available separate rate with other rates in the review to set a rate for the non-individually investigated companies resulted in Green Farms getting a rate not reflective of economic reality, Green Farms said.

"Commerce committed two separate legal errors," Green Farms said. First, it violated its own policy requiring an applicant for a separate rate to respond fully to all questionnaires issued as a mandatory respondent. Second, Green Farms argued, the decision to grant East Sea a separate contradicted Commerce's prior decisions denying separate rates to applicants who have failed to participate fully.

Green Farms is challenging the 17th administrative review of the antidumping duty order on frozen fish fillets from Vietnam where it received a dumping margin of $1.94/kg. That margin was an average of the rates for selected respondents NTSF and East Sea. NTSF participated in the review and got a $0.0/kg dumping rate, while East Sea withdrew and received an AFA rate of $3.87/kg. Green Farms brought the case to contest East Sea's selection as a mandatory respondent and April 2022 complaint (see 2204200028). Commerce has never calculated an AD rate higher than $0.15/kg in more than five years that was not due to the imposition of AFA, Green Farms said.

Commerce's argument that the statute “explicitly contemplates” the use of AFA in the all-others calculation is wrong and ignores the Statement of Administrative Action, which says such a methodology may not be used if it “results in an average that would not be reasonably reflective of potential dumping margins for non-investigated exporters or producers,” Green Farms said. The statute "broadly authorizes the use of 'any' reasonable method to calculate the all-others AD rate in this situation." Green Farms advocates using the average AD rates of other respondents

The Commerce department's assertions that East Sea provided an adequate response as it relates to the company's independence from the Vietnamese government is wrong, Green Farms argued. East Sea’s responses were deficient regarding government independence, including “affiliation” and “business registration” deficiencies, Green Farms said. East Sea's quitting of the case invalidated all of its responses and should have invalidated its application for separate-rate status, Green Farms said.