Commerce Played 'Gotcha' Game in Applying AFA on Remand in Cabinets Case, US Retailer Says
The Commerce Department erred when it continued to rely on adverse facts available despite a remand order invalidating the agency’s original reasoning for the AFA rate, Cabinets To Go (CTG), a U.S. retail chain, said in its Aug. 29 comments filed to the Court of International Trade. CTG intervened in the challenge to a final determination from Commerce’s antidumping duty investigation on wooden cabinets and vanities from China (Dalian Meisen Woodworking v. U.S., CIT # 20-00109) because the calculated rates of its own suppliers were based on AFA rates for Meisen.
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The underlying investigation found that Meisen's U.S. affiliates were falsely advertising birch cabinets as maple. In its preliminary determination, Commerce said that Meisen failed to give complete and accurate information on its production process, withheld information, and impeded the investigation. Judge M. Miller Baker found that Meisen lied to its U.S. customers, not to Commerce. While the advertising is a "complete fraud," Commerce did not establish the proper grounds for the use of AFA (see 2111190030).
On remand, Commerce 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 and again applied AFA (see 2206070077).
CTG echoes Dailan Meisen's argument, which accused Commerce of playing a "gotcha game" in its own brief opposing the remand results. “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,” Meisen said (see 2208170044).
The Chinese cabinet maker cooperated to the best of its ability during remand proceedings and the usage of AFA was "unwarranted" as Meisen was not granted the opportunity to supplement the record, CTG said. The application of the 262.18% total AFA rate is "unduly punitive," CTG said, especially given Meisen's responsiveness to Commerce's requests for information. The lack of follow-up questionnaires did not give Meisen an opportunity to correct any deficiencies Commerce alleges it found in the record. On the contrary, the "thousands of pages of information" in response to Commerce's remand questionnaires provides contradictory evidence to Commerce's basis for an AFA finding, CTG said.