Commerce Played 'Gotcha' Game in Again Applying AFA on Remand, Cabinet Exporter Says
The Commerce Department did give a Chinese cabinet exporter a fair chance when it continued to rely on adverse facts available despite a court order that invalidated the agency’s original reasoning for the AFA rate, the exporter said in an Aug. 15 brief opposing Commerce’s remand results (Dalian Meisen Woodworking v. U.S., CIT # 20-00109).
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“Having failed in its attempt to assign Meisen a margin based on total AFA due to the false advertising discovered in the investigation, Commerce has now resorted to a game of gotcha to find other reasons to get to the same result,” Dalian Meisen said, challenging the final determination from Commerce’s antidumping duty investigation on wooden cabinets and vanities from China.
Commerce had originally applied AFA to Dalian Meisen after finding the company’s sales reporting unreliable because the exporter’s U.S. affiliates were falsely advertising the exporter’s maple cabinets as birch, resulting in control number mismatches. But the Court of International Trade ruled in November that Dalian Meisen never lied to Commerce itself, despite the fraud perpetrated on its customers, so Commerce couldn’t set an AFA rate.
On remand, Commerce issued additional questionnaires to Dalian Meisen. It found the exporter failed to respond completely to inquiries on its U.S. affiliates, and left out significant documents needed to verify the completeness of the U.S. sales database. The agency also pointed to errors in Dalian Meisen’s response to a questionnaire issued in lieu of verification. Again, Commerce applied AFA (see 2206070077).
But Commerce “ignored the fact that Meisen’s has seventeen U.S. affiliates, that are generally small cabinet retailers making hundreds of thousands of transactions but with unsophisticated accounting systems, and has demanded a level of perfection in reporting that is simply not realistic under the facts of this case,” Dalian Meisen said in its brief.
And by law, Commerce should have given Dalian Meisen a chance to correct its responses to the verification questionnaire, but did not. Nor did Commerce explain its choice to apply AFA instead of partial facts available, with or without an adverse inference, the exporter said.
“Meisen submitted thousands of pages of documentation and allocated significant resources in an attempt to cooperate with Commerce throughout the investigation and the remand, but Commerce has decided that it is reasonable to ignore all of that information and resort to a total AFA margin that is not based on any of Meisen’s information,” the brief said.