US Says Seafood Seller Properly Found to Not Be 'Wholesaler'
The Commerce Department appropriately found that details about U.S. seafood seller Luscious Seafood's wholesaling operations don't support the company's claim that it was a bona fide wholesaler of the domestic like product, the U.S. argued in a reply brief filed last week at the Court of International Trade. The government said that, as a result, Commerce permissibly found Luscious' request for an administrative review of the antidumping duty order on frozen fish fillets from Vietnam to be invalid (Luscious Seafood v. United States, CIT # 24-00069).
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While Luscious argued that Commerce's "analytical factors for analyzing wholesaler standing are not required by the statute," the U.S. replied that Commerce's read of the term "wholesaler" to require bona fide wholesaling operations is in line with the law and the agency's practice. The government added that the U.S. Court of Appeals for the Federal Circuit has "affirmed Commerce’s interpretation of ambiguous statutory terms, such as 'wholesaler,' in the antidumping duty law."
Luscious filed a request for review in 2022, asking Commerce to review 136 exporters of fish fillets from Vietnam. The agency responded with various wholesaler questionnaires to ascertain if the company was able to file such a request under the statute -- 19 U.S.C. 1677(9) -- which says only an "interested party" can take part in AD proceedings. Commerce ultimately held that Luscious didn't make bona fide sales of fish fillets in the U.S. to qualify as a wholesaler of the domestic like product.
Taking to the trade court (see 2405020035), Luscious claimed that Commerce misapplied the statute in focusing on the presence of bona fide wholesaling operations (see 2409130060). The company said the statute "only states what interested parties may participate" in an AD proceeding but doesn't require Commerce to "analyze the presence of bona fide wholesaling operations to attain standing."
The government argued that Commerce lawfully interpreted Section 1677(9)(C) to have the term "wholesaler" require "bona fide wholesaling operations." The agency has an "inherent authority" to "protect the integrity of its proceedings," making it reasonable to analyze a company's bona fide wholesaling operations and in line with the agency's practice, the brief said. Neither the statute nor the agency's regulations "foreclose Commerce’s analysis and statutory interpretation," the brief said.
Due to the lack of a "clear statutory or regulatory definition" to see if a company undertakes bona fide wholesaling operations, Commerce reasonably turned to the statutory factors present in new shipper reviews as instructive, the U.S. said. Instead, Luscious would have the government "blindly accept its assertion that Luscious satisfies the statutory requirements as a wholesaler and to disregard contradictory record evidence," the brief said. However, every type of interested party that seeks to take part in a proceeding before Commerce "requires some degree of factual analysis by Commerce to confirm that they are, in fact, an interested party within the meaning of the statute," the U.S. said.
Luscious also cited Loper Bright Enterprises v. Raimondo, which rejected judicial deference to agencies' interpretations of ambiguous statutes, arguing that nothing in the statute related ot interested parties' eligibility to request reviews supported an interpretation "other than that Luscious was a legitimate entity engaged in wholesale trade of domestic catfish." In response, the U.S. said Luscious misunderstands Loper Bright, since precedent sustaining Commerce's interpretation of AD/CVD laws "remains in effect under the principle of stare decisis even if the Court had reached its decision" under the previous deferential standard of review.
In addition, the government said the Federal Circuit "has long recognized that Commerce’s determinations in antidumping and countervailing duty matters are entitled to deference" due to their "complex and technical nature." The high court in Loper Bright also recognized that "deference may also be owed to 'factbound determinations' when 'application of a statutory term was sufficiently intertwined with the agency’s factfinding,'" the brief said. Given that the determination of whether a company is a wholesaler is a fact-specific analysis, deference should be afforded to Commerce, the brief said.
Were it not a fact-based endeavor, the results could be "absurd" and "contrary to the intention of Congress," the brief said. "Such an outcome undergirds the logic for affording Commerce deference in interpreting 'general' statutory terms in these 'factbound determinations' like 'wholesaler,'" the brief said.