Antidumping Petitioner Backs Total AFA Based on Lack of CONNUM-Specific Data in CIT

The Commerce Department was justified in continuing to apply total adverse facts available in an antidumping case after a Court of International Trade remand since the respondent failed to accurately report control number-specific U.S. sales and factors of production data when it could have "easily" done so, case petitioner Catfish Farmers of America said in a July 9 reply brief. Doubling down on Commerce's arguments, the catfish farmers said the court should sustain the remand results in the case over the final results of the 14th administrative review of the antidumping duty order on frozen fish fillets from Vietnam (Hung Vuong Corporation, et al. v. United States, CIT #19-00055).

In the review, Commerce assigned a total AFA rate to plaintiff and respondent 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 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 and 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 then said this appeared to have "side-stepped" the issues remanded by the court to avoid "thoroughly explaining the impact these issues had on its decision to apply total AFA."

However, this is not an accurate representation of what Commerce did, the catfish farmers said. "Rather, after further considering the Court’s findings, as instructed, and weighing record evidence and the minor role the two findings at issue had in its overall total AFA determination, Commerce correctly concluded that these findings were not necessary to reach such a determination," the brief said.

"Stated differently, Commerce determined that these findings did not affect its decision to apply total AFA based upon HVG’s failure to report accurate CONNUM-specific U.S. sales and FOP data when it could have 'easily' done so, its failure to maintain verifiable production orders and other records to substantiate its U.S. sales and FOP reporting, and its failure to report verifiable labor FOPs," the brief said. "Indeed, Commerce is not required to needlessly address evidence that is no longer material to its determinations as doing so would be at best nonsensical."