CIT Remands Commerce's Finding That Seafood Seller Isn't 'Wholesaler'
The Court of International Trade remanded the Commerce Department's determination that U.S. seafood seller Luscious Seafood is not a bona fide wholesaler of the domestic like product in a confidential decision issued on Dec. 15. Judge Timothy Stanceu said Commerce shall issue a new decision "in which it decides whether Luscious Seafood had standing to request an administrative review of certain Vietnamese exporters and producers" (Luscious Seafood v. United States, CIT # 24-00069).
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The judge added that if the agency finds that Luscious had standing, it shall identify the exporters and producers that are to receive the separate rate should the remand results be sustained. Stanceu gave the parties 21 days to review the confidential information in the decision.
Luscious filed a request for review in 2022, asking Commerce to review 136 fish fillet exporters from Vietnam. The agency responded with various questionnaires to find out if the company was able to file such a request under the statute, 19 U.S.C. 1677(9), which says only an "interested party" can take part in an AD proceeding. Commerce ultimately said Luscious didn't make bona fide sales of fish fillets in the U.S. to qualify as a wholesaler of the domestic like product.
Luscious filed suit (see 2405020035), arguing, among other things, that Congress meant for Commerce to conduct a review as to any parties named in a request filed by a party that resold the domestic like product to another seller during the review period. The petitioner, Catfish Farmers of America, pushed back on this claim, arguing that that while Congress didn't define the term "wholesaler," the overall text, structure and purpose of the law don't reflect any intent to let parties with "merely tangential or fugitive wholesaling activity to force Commerce into action -- particularly for potentially manipulative ends" (see 2501240066).
The case was originally assigned to former CIT Judge Stephen Vaden, though it was reassigned to Stanceu after Vaden left the court to join the U.S. Department of Agriculture.