CIT Sustains Separate Rate Calculation in AD Review on Vietnamese Fish Fillets
The Commerce Department's calculation of the separate rate in an antidumping duty review by averaging the separate rates from the previous four administrative reviews was backed by substantial evidence, the Court of International Trade said in a Sept. 27 order. After previously finding that Commerce's extension of the adverse facts available rate to the non-individually examined respondents was unlawful, the court then upheld the agency's new separate rate calculation methodology.
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The opinion came in a case over the 2015-16 review of the antidumping duty order on fish fillets from Vietnam, where Commerce applied a total AFA rate of $3.87/kg to the mandatory respondents. The plaintiffs, led by GODACO Seafood Joint Stock Co., challenged this finding. CIT upheld the rate but took exception to the rate's extension to the non-individually examined respondents (see 2105250060). Commerce, by law, was supposed to use the “expected method” to derive this rate since the mandatory respondent rates were based on AFA. Any deviation from this method must be explained, CIT said.
In its prior opinion, CIT found that Commerce must have departed from the expected method, citing the agency's conflicting use of the expected method and “any reasonable method.” The court held in that opinion that Commerce's application of the expected method, as the agency described it, was unreasonable. Commerce dropped its use of the expected method and averaged the separate rates in the past four administrative reviews to get the separate rate, arguing the data was more “contemporaneous” than the AFA rate previously used.
“The Court holds that Commerce supported its determination with substantial evidence and it is reasonable for Commerce to assign an all-others separate rate of $0.89/kg because the revised rate is based on four separate rates from previous administrative reviews, which are no longer subject to judicial review, and averaging the separate rates from four prior reviews accounts for any variations,” the opinion said.
(GODACO Seafood Joint Stock Co., et al. v. United States, Slip Op. 21-131, CIT Consol. #18-00063, dated 09/27/21, Judge Jennifer Choe-Groves. Attorneys: Andrew Schroth of Grunfeld Desiderio for plaintiff GODACO; Kara Westercamp for defendant U.S. government)