The U.S. Court of International Trade has ruled the Department of Commerce (DOC) needs to take another look at its decision to remove antidumping duties on catfish/pangasius fillets from Vietnam-based Co May Import-Export Company Limited.
The ruling stems from a complaint lodged by U.S. catfish farmers and representative groups – including Catfish Farmers of America (CFA), America’s Catch, Alabama Catfish, Consolidated Catfish Companies, Heartland Catfish, and more – who alleged a U.S. DOC decision to remove antidumping duties on Co May was in error. The DOC, in its posting to the Federal Register, said it found Co May did not make sales of pangasius at below normal value during the period of review.
That determination came after Co May submitted a New Shipper Review for the period that the DOC examined – 1 August 2022 through 31 January 2023. Co May claimed that it made a single sale to the U.S. market during the period, and the DOC determined that the sale was legitimate.
However, the CFA’s complaint claimed Co May’s sale between it and a U.S. customer was not bona fide and that the DOC ignored evidence that the sale was a “sample sale of the kind the agency traditionally considered non-bona fide.”
CFA also argued the DOC failed to support its decision to not include antidumping duty deposits as a cost when assessing the profitability of Co May’s sale and that the department did not adequately support its conclusion that the customer who purchased its products, labeled “Customer A” in the lawsuit, was unaffiliated with its downstream customers.
“CFA argues that record evidence indicates that Customer A sold the product it obtained from Co May to parties that were related to each other, despite initially reporting otherwise,” the ruling states.
The CFA said it compared the filing statements of Customer A and the downstream customers it sold the products to and found that all but one of those customers share the same mailing address associated with the CEO of Customer A. It also found each of the downstream customers that purchased products had the same CEO, labeled “CEO B” in the opinion, and that CEO B was also an employee of Customer A – meaning it potentially sold its products to an employee of itself.
The DOC originally determined that the one downstream customer with a different address was sufficient to qualify as non-affiliated in its investigation.
U.S. Judge Jane Ann Restani sided with the DOC on its decisions regarding expenses and its sales price. However, Restani wrote the DOC should have more closely considered the affiliation between Customer A and its downstream customers.
“The court struggles to understand how resale profitability for the importer can be determined reliably where the downstream sales are between an importer and related entities,” Restani wrote. “The court also concludes that Commerce erred when it found that there was no substantial evidence to support CFA’s contention that Customer A was affiliated with its downstream customers.”
Restani ordered the DOC to reconsider its profitability analysis related to Co May, its initial customer, and that customer's downstream sales.
