Commerce Rightfully Continued to Apply Total AFA in AD Case Despite CIT Orders, DOJ Says

The Commerce Department's decision to swap the basis for its total adverse facts available determination in an antidumping administrative review is backed by substantial evidence and in line with Court of International Trade remand orders, the Department of Justice said in June 30 comments on the remand results. After Judge M. Miller Baker found that Commerce improperly relied on two issues with plaintiff Hung Vuong Group's data submitted to the agency to determine AFA, Commerce flipped to two other elements of HVG's data to make the same determination (Hung Vuong Corporation, et al. v. United States, CIT #19-00055).

In the final results of the 14th administrative review of the antidumping duty order on frozen fish fillets from Vietnam, covering entries from 2016 to 2017, Commerce assigned a total AFA rate to HVG 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 initially based its decision to apply adverse inferences on factors two and four -- the reporting failures of customer relationships and the FOP reporting issues (see 2105240078).

Baker remanded this finding as unsupported by substantial evidence. The judge also suggested a switch to partial AFA instead. In response, Commerce flipped to the other two factors -- the failure to retain source documents on feed consumption, production records and sales correspondence and HVG's failure to report factors of production data on a control number-specific basis -- and continued to apply total AFA. HVG said this went against court orders, particularly Commerce's continued decision to apply total AFA. DOJ says the remand order did not require Commerce to continue to rely on the two remanded issues for the basis of applying AFA.

In an attempt to alleviate some of Commerce's concerns, HVG tried to resubmit a key database that would, in particular, fix CONNUM-related reporting issues. Commerce rejected the filing as untimely. DOJ now says that HVG should have been well aware of the reporting issues, seeing as the data has been required to be submitted in a CONNUM-specific format since the 11th administrative review. "In this administrative review, the Court expressly rejected HVG’s arguments as to its excuses for not providing factors of production on a CONNUM-specific basis, explaining that HVG 'has had even more time to revise its practices to come into compliance -- if, after all, [HVG] had ample notice prior to the 11th administrative review, then it had even more notice prior to this 14th review,'" the comments said.