Commerce Seeks Remand in AD Case to Consider Its Decision to Not Conduct On-Site Verification

The Court of International Trade should grant the Commerce Department's voluntary request for a remand in an antidumping case, so the agency can review whether it was appropriate to rely on supplemental questionnaire responses, seeing as it couldn't conduct an on-site verification, Commerce argued in an Oct. 18 brief (Ellwood City Forge Company, et al. v. United States, CIT #21-00007).

Commerce's remand motion comes from a case over the final determination in the antidumping duty investigation of forged steel fluid end blocks from India. During the investigation, Commerce determined that it could not conduct on-site verification, as required by law, due to COVID-19-related restrictions. So, the agency issued a supplemental questionnaire to the investigation's respondents as a stand-in for the on-site verification. Absent the results from verification, Commerce said it needed more documents and information and then ultimately relied on facts otherwise available.

This prompted a challenge from the plaintiffs, led by the Pennsylvania-based Ellwood City Forge Company, which challenged Commerce's reliance on the questionnaire instead of the on-site verification, the agency's decision not to perform the on-site verification and Commerce's reliance on facts otherwise available, among other things. The agency then submitted a voluntary remand motion to "reconsider its position on the questionnaire in lieu of on-site verification and subsequent application of facts available in this investigation."

Commerce backed its remand bid by arguing that sorting out the issue of Commerce's failure to conduct on-site verification, and subsequent reliance on facts otherwise available, is central to the case, as all of the remaining issues before the court relate to this question. Further, "the need for finality does not outweigh the justification," Commerce said. "A remand to Commerce to further evaluate the procedures followed during the investigation is the relief plaintiffs requested in their pending motion and would receive were they to prevail."