Fish Exporter Defends Commerce's Decision Not to Use AFA at Trade Court
The U.S. government fully supported the Commerce Department's decision not to use adverse facts available against exporter Can Tho Import Export Seafood Joint Stock Co. in the 2020-21 administrative review of the antidumping duty order on frozen fish fillets from Vietnam, the exporter argued in a Feb. 5 reply brief at the Court of International Trade. Can Tho Import Export said Commerce properly found that the respondent fully cooperated in the review and that Commerce correctly rejected the petitioner's allegation of a ministerial error (Catfish Farmers of America v. United States, CIT # 24-00082).
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Seeking to rebut petitioner Catfish Farmers of America's claims, Can Tho Import Export argued at the outset that the petitioner's arguments are "unclear." First, the petitioner says Commerce's decision rests on a factual error, only later saying the agency failed to explain its reasoning. And while the petitioner raises various "legal issues, it fails to address all the relevant statutory factors regarding application" of AFA, the brief said.
The respondent argued that the government noted that Commerce reasonably found that the respondent reported its packing factors in an "acceptable manner," thereby showing it acted to the "best of its ability," as required by law.
The government explained that the respondent fully complied with a "specific questionnaire instruction to report packing material factors only for 'merchandise under consideration for shipment to the United States.'" This instruction "qualified a more general instruction to report factors for all production," including that part of the production not meant for the U.S., the brief said. As a result, contrary to the petitioner's claims, Commerce didn't require the exporter to report "global" packing factors.
Can Tho Import Export added that Catfish Farmers of America "has failed to address many" of the statutory factors surrounding AFA, "or to cite caselaw supporting its position." The exporter added that the petitioner "omits critical details," including the fact that the exporter provided a "fulsome narrative in its May 16, 2023 questionnaire response explaining why it continued to report packing factors based on U.S. sales rather than global sales."
The petitioner also alleged that Commerce committed a ministerial error, though the agency rejected the claim as being untimely, given that it came after the final results. The exporter argued that the petitioner "clearly slept on its rights before Commerce," neglecting to raise its challenge on Commerce's "marine insurance calculations," then repackaging its argument as a ministerial error.