Post-Bestpak Changes Allow for Use of AFA in Separate Rate Calculations, Petitioner Says
The Commerce Department permissibly refused to offer exporter East Sea Seafoods Joint Stock Company separate rate status in the 2019-20 administrative review of the antidumping duty order on catfish from Vietnam, petitioner Catfish Farmers of America argued in a Feb. 10 brief supporting Commerce's remand results. The petitioner said that while the Court of International Trade relied on the U.S. Court of Appeals for the Federal Circuit's decision in Yanghzou Bestpak Gifts & Crafts Co. v. U.S. to remand the issue, legal developments since Bestpak have called into question the relevance of the decision (Green Farms Seafood Joint Stock Company v. United States, CIT # 22-00092).
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In the review, the agency said that mandatory respondents NTSF Seafoods Joint Stock Company and East Sea established independence from the Vietnamese government and qualified for separate AD rates. NTSF got a zero percent dumping margin, while East Sea got the $3.87 per kilogram adverse facts available rate for its failure to respond to Commerce's requests.
Exporter and plaintiff Green Farms Seafood Joint Stock Co. also demonstrated its independence from the Vietnamese state, though it received a simple average of the zero percent and $3.87 per kilogram rates for its own AD margin. Green Farms challenged Commerce's conclusion that East Sea qualified for a separate AD rate.
The trade court partially sided with Green Farms, finding that the agency failed to "show its work" (see 2404180031). Relying in part on Bestpak, the trade court said Commerce must.show that the tariff rate reflected Green Farms' economic reality. Commerce stuck with its position on remand and said East Sea qualified for a separate AD mark.
Defending this position, the petitioner said the court didn't remand the separate decision for "any inconsistency with law, but for further explanation of how the record regarding" East Sea's operations corresponded to each factor the agency looks at to see if a company is free from government control. The remand "provided the required information," and the arguments to the contrary only try to relitigate settled issues, the brief said.
In addition, the petitioner said legal developments since Bestpak have rendered the decision irrelevant. For example, in Bosun Tools Co. v. U.S., CAFC considered a separate rate that was a simple average of the China-wide rate and a zero percent margin, finding it reasonable for Commerce to partially base the separate rate on a "mandatory respondent's adverse margin." Bosun clarified that "mandatory respondents are presumed, under the statute, representative of non-investigated companies, and has otherwise confirmed that the agency is meant to determine the separate rate via the expected method," which requires averaging the mandatory respondents' rates.
The petitioner also noted post-Bestpak statutory changes, which say that Commerce has "no obligation to ensure" that adverse rates reflect "commercial reality" or that the rate would have been calculated in the "absence of the adverse inference."