U.S. Department of Commerce Issues An Unfair Preliminary Determination in Fish Fillets Antidumping Case

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By Milthon Lujan

The U.S. DOC has issued its preliminary determination in the 12th administrative review of the antidumping case on Vietnamese fish fillets, levying a punitive duty rate of $2.39/kg. on all Vietnamese fish exporters that shipped during POR 13.

The DOC’s decision is based on a misreading of the facts and a departure from long-standing policy and practice in these antidumping reviews in calculating duty rates for mandatory and separate rates respondents.

The mandatory respondent, GODACO Seafood JS Co., fully cooperated in the review and supplied all data and information requested by the DOC in a timely manner. The data was complete and accurate and reported in accordance with its U.S. terms of sale and its normal business and production practices. The data accurately reflected the company’s production processes and was fully supported by a large number of original factory documents, HACCP records, accounting, sales and production records. The DOC’s decision not to use this data is both factually and legally incorrect and the company will very firmly defend its position and data, filing all arguments before the DOC to reverse this result for the final determination, due in the first quarter of 2018.

The DOC then further took the unprecedented decision to apply this duty rate to all other Vietnamese exporters, so called “separate rate” companies, who also fully cooperated during the review period and provided all necessary information in an accurate and timely manner. The $2.39/kg rate bears no relation to the commercial reality of the U.S. sales of these companies and clearly ignores normal DOC practice, which is to apply the separate rate from a previous review where a mandatory has been given a punitive, facts available rate. The DOC has changed its policy on separate rate calculations without any legal notice and without any justification. VASEP believes this is an unlawful and unfair determination that it will challenge as necessary at both the DOC and, if necessary, in the US trade courts.

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Notably, a Preliminary Determination by the DOC has no legal force and effect and these results will not be applied to future US sales or entries after publication of the results. The DOC permits all parties to file comments, legal briefs and attend hearings in order to determine the correct antidumping duty rate in the final determination. VASEP firmly believes the Vietnamese fish exporters will prevail on the merits of their case and reverse this punitive determination at the final determination.

VASEP and the relevant trade remedy bureaus of the Vietnamese Government are studying all options in addressing this unfair result and its legality under U.S. law. Further, there will be a comprehensive review of its impact on bi-lateral relations.

Source: VASEP

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