Exporter, DOJ Make Final Comments on Remand Results, Use of Total AFA in AD Case

The Commerce Department permissibly relied on total adverse facts available in an antidumping case in light of the Court of International Trade's orders, the Department of Justice argued in July 30 final comments on Commerce's remand results. The respondent, Hung Vuong Group, attempted to submit new factual information in the case before the remand was filed, but no such authority exists for this submission to be accepted, DOJ said (Hung Vuong Corp., 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 (CONNUM) 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 2106300073).

Judge Miller Baker remanded this finding as unsupported by substantial evidence. The judge also suggested a switch to partial AFA. 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 and merely indicated its “haste to apply total AFA” (see 2105240078). 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 its own final comments on the remand results, HVG said DOJ was “overplay[ing] its hand” in relying on the court to apply total AFA. “While those passages cited by Commerce may justify Commerce’s use of 'facts available' generally (because information was missing) and even an 'adverse inference' (because Commerce determined that HVG failed to cooperate to the best of its ability), those passages do not on their own sanction the use of 'total AFA' as opposed to 'partial AFA,'” the comments said.

DOJ responded by again citing the court's remand instructions, relying particularly heavily on HVG's CONNUM reporting issues. The government found it especially telling that HVG attempted to resubmit questionnaire sections that would resolve the issues. However, HVG is not allowed to do this, DOJ said. “But HVG offers no authority, and nor are we aware of any, that would permit a party to cure a deficiency in a remand proceeding by submitting untimely new factual information despite the Court already sustaining a finding of an adverse factual inference,” the brief argued.

“As a result, while HVG attempts to undermine the Court’s remand order by arguing that Commerce could have accepted a revised Section C database in the remand proceedings, this argument entirely ignores the fact that the Court sustained Commerce’s determination that HVG had 'failed to report verifiable CONNUM-specific information in its U.S. sales and {factors of production} databases,'" and an adverse inference was warranted, DOJ said. These problems were “core” to the investigation, so it would be “unduly difficult” for Commerce to “do anything than to apply total adverse facts available,” DOJ concluded.