Antidumping Petitioner Adds to Remarks in Support of Commerce Remand Applying Total AFA

Defendant-intervenors and antidumping case petitioners, led by Catfish Farmers of America, filed comments to remand results in the Court of International Trade on July 28 in a case over an antidumping review on frozen fish fillets from Vietnam. Having already submitted comments on the remand (see 2107160018), the catfish farmers added final comments, arguing that Commerce's continued reliance on total adverse facts available is properly supported by findings "already affirmed by the court," and that Commerce fully addressed the issues remanded by the court despite no longer relying on them (Hung Vuong Corporation, et al. v. United States, CIT #19-00055).

In the review, Commerce assigned a total AFA rate to respondent Hung Vuong Group based on four factors: failure to maintain source documents, reporting failures related to customer relationships, control number reporting issues, and factors of production reporting issues. Commerce initially based its decision to apply adverse inferences on the reporting failures of customer relationships and the FOP reporting issues. The court then remanded this finding as unsupported by substantial evidence and suggested a switch to partial AFA. Instead, 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.

Commerce did so in a "haste to apply total AFA," HVG argued in their own comments on the remand results (see 2105240078). They also said that the agency sought to "avoid 'thoroughly' explaining the impact these issues had on its decision to apply total AFA." The catfish farmers fought back against this claim, saying that "Commerce did not 'side-step' the issues to avoid anything. 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."

Commerce's decision to rely on total, over partial, AFA is properly supported, the petitioners said, because the court sustained the finding that HVG's U.S. sales and factors of production data were unusable "independently of the agency's findings regarding HVG's byproduct data and HVG's customers' failure to provide necessary information." Further, the decision to switch to the other two grounds for total AFA occurred independently of the other "Court-approved findings that invalidated that same database," the brief said.