Commerce Couldn't Verify Data in AD Investigation Due to Pandemic, DOJ Says

The Commerce Department was permitted to apply "facts otherwise available" in an antidumping duty investigation where it was unable to verify certain information due to the COVID-19 pandemic, the Department of Justice said in a July 2 brief to the Court of International Trade. Responding to plaintiffs, led by Bonney Forge Corp., DOJ said that the pandemic and travel restrictions prohibited Commerce from conducting on-site verifications during an investigation on forged steel fittings from India (Bonney Forge Corporation et al. v. United States, CIT #20-03837).

Shakti Forge Industries Pvt. was the sole mandatory respondent in the investigation after the remaining mandatory respondents dropped out. Given the pandemic, Commerce had to take Shakti at its word for a lot of the data it submitted for the investigation. The plaintiffs, meanwhile, never fully raised the argument administratively to Commerce that the lack of verification would be a problem, only pushing for a "virtual verification" in their administrative case brief, DOJ said.

"It is true that Commerce normally conducts verification, but the unprecedented global conditions and travel restrictions caused by the pandemic was a valid basis for forgoing verification here," the brief said. "Under the unique circumstances of this investigation, Commerce determined that the inability of its personnel to travel to conduct verification precluded achieving the goals of verification."

The plaintiffs argued that Commerce's attempt to retroactively apply supplemental questions as a means of verification was an "insufficient substitute for verification." However, the goals of the plaintiffs in pushing for verification, obtaining accurate data, was obtained to the best of Commerce's ability given the circumstances, DOJ said. Forced to rely on Shakti's data, Commerce obtained numerous follow-up submissions, including 10 complete sales traces corroborating information from the respondent's earlier responses, numerous requests for clarifications and questions over Shakti's cost allocation methodology.