CIT Upholds AFA After Initial Rejection in AD Review of Vietnamese Fish Fillets

The Court of International Trade on Oct. 12 sustained the Commerce Department's application of adverse facts available in an antidumping duty review on frozen fish fillets from Vietnam. After previously remanding Commerce's application of AFA for lack of substantial evidence, Judge Miller Baker sustained Commerce's remand results after Commerce switched out the grounds on which it based its AFA finding.

Plaintiff Hung Vuong Group was a mandatory respondent in the administrative review, which covered entries in 2016 and 2017. In the review, 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).

Baker remanded this finding as unsupported by substantial evidence. 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.

During the remand proceedings, HVG also attempted to submit new factual information in the case. Commerce objected, arguing that no such authority exists for this submission to be accepted. Baker sided with the agency, finding that "Whether to allow Hung Vuong to submit a revised database was a decision for Commerce, not for the court."

HVG and Commerce also sparred on a number of other fronts in their comments on the remand results (see 2108040037). HVG argued that Commerce's new grounds went against the court's orders, saying the switch indicated Commerce's "haste to apply total AFA." DOJ countered that the remand order did not require Commerce to continue to rely on the two remanded items for the basis of applying AFA. Baker determined that substantial evidence supports Commerce's new determination.

"The Department reconsidered its determination to apply adverse facts available and explained how the record supported its determination even without reliance on the remanded issues," the opinion said. "Substantial evidence supports that determination, and therefore the court sustains the Department’s remand results applying total adverse facts available based on Hung Vuong’s control number reporting deficiencies 'and failure to retain documents.'" Baker sustained the $3.87/kg dumping rate applied to HVG as backed by the administrative record.

(Hung Vuong Corp., et al. v. United States, Slip Op. 21-142, CIT #19-00055, dated 10/12/21, Judge Miller Baker. Attorneys: Robert LaFrankie of Crowell & Moring for plaintiffs; Brian Boynton for defendant U.S. government)