Trade Court Sustains Commerce Use of AFA in Wooden Cabinets AD Case
The Court of International Trade upheld the Commerce Department's use of total facts otherwise available with an adverse inference on remand in an antidumping duty case concerning wooden cabinets and vanities from China, according to an April 24 opinion. Judge Miller Baker upheld Commerce's use of AFA and its selection of the 262.18% China-wide rate for Dalian Meisen.
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Commerce originally applied AFA to Meisen after finding the company’s sales reporting unreliable because the exporter’s U.S. affiliates were falsely advertising maple cabinets as birch. The Court of International Trade ruled in November 2021 that Dalian Meisen never lied to the Commerce Department, despite the fraud perpetrated on its customers, and remanded the issue to Commerce.
On remand, Commerce found Meisan failed to respond completely to inquiries regarding its U.S. affiliates, and failed to produce any of the requested screenshots or printouts from its accounting system. The agency then applied AFA again in its remand results, saying that Meisen's reported information was so unreliable that it could not be used to calculate a dumping margin (see 2206070077). Baker ruled that Commerce could not calculate a dumping margin without Meisen's U.S. sales data and that no interested party had suggested a margin other than the 262.18% China-wide rate. Therefore, he found Meisen's argument that the rate was punitive to be unconvincing.
The court also found that Meisen did not fully provide the requested documentation to Commerce in its remand questionnaires, nor did it ask permission for the alternative filings it provided. Meisen argued that it did provide requested records only, not in the form of "screenshots" requested by Commerce. Baker said in his ruling that "a respondent cannot simply make up its own preferred way to respond" and that the provision of incorrect documentation was "a sufficient reason to resort to facts otherwise available."
"Meisen’s failure to tie sales data to its books and records, and the finding that Meisen failed to identify all of its U.S. affiliates involved in the sale and/or distribution of subject merchandise, is not overly punitive," Baker said. He noted that the Federal Circuit has ruled that there is no single formula Commerce must use in deciding an appropriate rate for an uncooperative respondent.
(Dalian Meisen Woodworking Co. v. U.S., Slip Op. 23-60, CIT # 20-00109; Judge: Miller Baker; Attorneys: Jeffrey Neeley of Husch Blackwell for plaintiff Dalian Meisen; Mark Ludwikowski of Clark Hill for plaintiff-intervenor Cabinets to Go; Brian Boynton for defendant U.S. government; Like Meisner of Schagrin Associates for defendant-intervenor American Kitchen Cabnet Alliance)