Commerce Fails to Lawfully Substantiate Claim in 'Haste to Apply Total AFA,' Exporter Argues

The Commerce Department failed to follow the Court of International Trade's remand orders in attempting to justify its same adverse facts available determination in an antidumping case, Vietnamese fish exporters argued in their May 21 comments on the agency's remand results. "In its haste to apply total AFA, Commerce has not actually considered and explained all of the relevant record evidence, including that which fairly detracts from its decision," the exporters said. "This was unlawful"(Hung Vuong Corporation, et al. v. United States, CIT #19-00055).

In the final results of the 14th administrative review of the antdiumping duty order on certain frozen fish fillets from Vietnam, covering entries from 2016 to 2017, Commerce assigned a total AFA rate to Hung Vuong Group based on four factors: 1) failure to maintain source documents, 2) reporting failures related to customer relationships, 3) control number reporting issues and 4) factors of production reporting issues. Commerce based its decision to apply adverse inferences on factors two and four -- the reporting failures of customer relationships and the FOP reporting issues.

In December CIT found Commerce failed to substantiate its findings, and ordered Commerce to "reconsider whether partial AFA is appropriate" instead.

According to Hung Vuong, Commerce did no such thing, instead attempting to provide further justification of a total AFA rate for the fish fillets by basing its determination on the other two alleged reporting shortfalls from the plaintiffs: the failure to maintain source documents and report its sales, and FOP data on a control number-specific basis. Hung Vuong faulted the agency for failing to show that partial AFA is not appropriate under the circumstances as directed by the court, then for allegedly coming to a conclusion to apply total AFA without substantial evidence.

Hung Vuong argues that even though the court decision may relate to Commerce's findings on AFA "generally," it in no way signed off on a finding of total AFA. "Indeed, that question is precisely the point of the remand – which is whether it was appropriate for Commerce to resort to 'total AFA' rather than 'partial AFA', in light of the deficiencies pointed out by the Court on two of Commerce’s findings," the comments said. "But Commerce fails to demonstrate that total AFA is appropriate based on the remaining deficiencies."

Hung Vuong also points to a host of record evidence provided by the plaintiffs in their multiple attempts to comply with Commerce's questionnaires. "Commerce has simply applied the highest AD rate of $3.87 per kg (which is more than 100%) to penalize HVG," the comments said. "Commerce has harshly treated HVG as if it had never responded at all to any of the questionnaires. This is arbitrary." The exporters also claim that Commerce reached its decision in a backwards manner -- that it reached its AFA conclusion first, then proclaimed "no record evidence" undermined its decision.