In an Opinion made public last week, the U.S. Court of International Trade (CIT) sustained the U.S. Commerce Department’s (“Commerce”) change of opinion with regard to antidumping duties assessed on frozen fish fillets from Vietnam.  Ultimately, the CIT found that Commerce had “reasonably explained” its shift in position based on Commerce’s new understanding of the evidence presented to it and the company in question’s failure to present evidence to rebut the assumption Commerce had applied.

In January 2017, the CIT granted in part and remanded in part Commerce’s final determination of the tenth administrative review of its antidumping duty order for frozen fish fillets from the Socialist Republic of Vietnam.  As part of its tenth administrative review, Commerce assigned a $2.39 per kilogram duty on pangasius fish fillets.  The antidumping duty was based on the presumption that all respondent companies in a non-market economy, such as Vietnam, are subject to government control and assigned the same duty rate.  Nevertheless, the CIT questioned Commerce’s basis for its determination of a “broad-market advantage” in the production of the fillets based on the affidavit of an Indonesian fisheries official.

In addition, one company, Can Tho Import-Export Joint Stock Co. (“Casemax”) disputed the assignment of antidumping duty rate to its products. Casemax asserted that, based on the structure of its articles of formation, it was not subject to control of the communist government.  In its January 2017 decision, the CIT found that Commerce had not sufficiently explained why it denied Casemax’s assertions and assigned it the same duty rate as other pangasius exporters.

As set forth in the CIT’s most recent opinion, Commerce has now sufficiently explained the two questions that required remand.

First, Commerce subsequently came to learn that the assertions contained in the Indonesian official’s affidavit applied to the three provinces in Indonesia which accounted for 99.8% of Indonesia’s pangasius production during the relevant period.  Learning that the affidavit provided essentially nation-wide data, Commerce gave the affidavit greater credence than an Indonesian magazine article on which it had relied on as part of its prior administrative reviews.

Second, the application of anti-dumping duties to Casemax was largely a result of Casemax’s failure to present evidence to rebut the presumption that it was subject to government control.  Despite Casemax’s assertions, Commerce properly presumed government control in the absence of evidence demonstrating that the communist government had neither de jure or de facto control over the company.  Accordingly, the CIT found that Commerce was not unreasonable in applying the presumption and denying Casemax’s request for a separate duty rate.

Any U.S. company which believes it is facing unfair completion from foreign producers should explore whether a petition for protective duties may be appropriate. As here, the antidumping duties were originally instigated by a complaint from U.S. producers in 2002 and Commerce has continued to ensure appropriate protections over the past fifteen years.