Trade Group Says Commerce Did Provide Notice of Deficiency in Supplemental Questionnaire

A domestic trade group for catfish farmers brought a motion for judgment Oct. 15 before the Court of International Trade, arguing that the Commerce Department should have at least applied partial adverse facts available to a mandatory respondent in its 2020-21 review of frozen fish fillets from Vietnam (Catfish Farmers of America v. U.S., CIT # 24-00082).

Catfish Farmers of America, which filed its complaint in May (see 2405090043), claimed Commerce was wrong that the department hadn’t issued a supplemental questionnaire to mandatory respondent CASEAMEX reiterating a question that CASEAMEX had failed to respond to fully in its initial questionnaire responses.

The mandatory respondent was asked in its initial questionnaire to report its packing costs for products it was shipping both to the U.S. and globally, Catfish Farmers said. But it only reported its U.S. packing cost.

Commerce, despite its claim to the contrary, then issued a supplemental questionnaire in which it again asked CASEAMEX to “report all packing factors associated with each product type sold to the U.S. market, ‘regardless of whether those packing materials were used for shipments to the United States,’” the trade group said. CASEAMEX again failed to do so, it said.

This merited application of at least partial, if not full, AFA, Catfish Farmers said. It said it argued as such in administrative case briefs, but that Commerce rejected its arguments, the department claiming that another question in the initial questionnaire had asked CASEAMEX to “[d]escribe the method used to pack the merchandise under consideration for shipment to the United States,” which could have caused confusion.

Commerce also said that it “had never instructed CASEAMEX to report the [packing materials on a global basis] in a supplemental questionnaire,” the trade group said.

Catfish Farmers also said that the department should have corrected a ministerial error the petitioner discovered in the final results of the review even though that error had also appeared, unnoticed, in the review’s preliminary results. It cited Loper Bright, arguing that Commerce’s regulation, which, “for no principled reason, and contrary to [the department’s] clear overarching goal of calculating dumping margins accurately,” requires ministerial errors be raised as soon as possible or be waived, isn’t the best interpretation of the Tariff Act of 1930.

“Neither the statute’s text nor its legislative history express any intent to exclude from the statutory directive ministerial errors that, while present ‘in final determinations,’ may also have been present in relevant preliminary determinations,” it said.