Fish Petitioner Says Commerce Misrepresenting Administrative Record
Frozen fish fillet petitioner Catfish Farmers of America again argued March 5 the U.S. was wrong to state that it hadn’t sought certain information from a review respondent, and, because of that, a gap in the record was justified (Catfish Farmers of America v. United States, CIT # 24-00082).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Catfish Farmers brought its case to the Court of International Trade arguing that the Commerce Department should have applied adverse facts available to mandatory review respondent CASEAMEX’s packing costs (see 2405090043). The petitioner claims that Commerce asked CASEAMEX for all packing cost data, including the costs of packing its products for shipments headed to non-U.S. markets, but that the exporter only provided packing costs for its U.S. shipments.
The U.S. and CASEAMEX, intervening as a defendant, answered that the agency hadn’t actually asked for packing costs for non-U.S. shipments; CASEAMEX claimed the questionnaire prompt asked only for packing material factors for “merchandise under consideration for shipment to the United States” (see 2502060066). The instruction "qualified a more general instruction to report factors for all production,” the exporter said.
But this was false, Catfish Farmers said in its March 5 brief.
“Commerce’s initial request sought ‘factors information ... including that portion of the production that was not destined for the United States,’” it said.
Then, in a supplemental questionnaire, Commerce repeated the question, telling CASEAMEX to provide its factors of production for “all packing materials ... regardless of whether those packing materials were used for shipments to the United States.” But, again, “CASEAMEX refused to do so,” Catfish Farmers claimed.
It alleged Commerce was attempting to “rewrite the record.” The U.S.’s remaining arguments, it said, were simply post-hoc justifications or "otherwise misstate the record."
It also pushed back against the government’s argument that it has the discretion to determine when to apply adverse facts available or otherwise find that a respondent adequately fulfilled its responsibilities. That wasn’t true if Commerce was basing its determination on a “demonstrably false assertion,” the petitioner said.
And, “[c]ompounding the problem,” the agency never considered in “any ‘stand-alone discussion’" whether CASEAMEX cooperated to the best of its ability, Catfish Farmers claimed.
It also brought up Commerce’s refusal to accept its ministerial error allegation, which the U.S. and CASEAMEX explained was because the error also appeared unopposed in the proceeding’s preliminary determination. But the 1930 Tariff Act requires Commerce to “establish procedures for the correction of ministerial errors in final determinations,” the exporter said.
“CFA respectfully submits that the best interpretation of the statute is that it means what it says, i.e., that Commerce must allow interested parties to seek corrections to a final determination after a final determination is issued,” it said.
This would also best comport with the overall statutory purpose of antidumping duty investigations to “determin[e] current margins as accurately as possible,” it said.