No Distinction Between AD Review Challenge and Voluntarily Remanded Case, Plaintiffs Argue

There are no substantive differences between two cases challenging antidumping duty investigations into goods from India, one of which was granted a voluntary remand, so the Court of International Trade should grant a remand for the other, the plaintiffs for that case argued in a Dec. 1 brief. Both cases concern the lack of verification due to the COVID-19 pandemic, and CIT should allow Commerce to review whether it was appropriate to rely on supplemental questionnaire responses instead of on-site verification (Bonney Forge Corporation, et al. v. United States, CIT #20-03837).

The case at issue in the brief was brought by Bonney Forge Corporation, along with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, and challenges the AD investigation into forged steel fittings from India. The other, remanded case, led by Ellwood City Forge Company, challenges the AD investigation into forged steel fluid end blocks.

During the latter 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 Ellwood City, 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." The motion was ultimately granted (see 2111010056).

Bonney Forge now argues that its case is indistinguishable from Ellwood City's, despite Commerce's arguments to the contrary. The agency argued that it only identified its supplemental questionnaire as being "in lieu of verification" in Ellwood City's case but not in Bonney Forge's. "While Petitioners do not agree with the post-hoc characterization of Commerce’s supplemental questionnaires in the issue and decision memorandum in this case, Commerce cannot have it both ways," the brief said. "If its supplemental questionnaires here were not 'in lieu of verification,' Commerce cannot reasonably claim it conducted any verification in this case."

Commerce also argued that in the forged steel fittings investigation, it issued a "Cancellation of Verification Memo" and gave notice of intent to use facts available but gave no such notice in the fluid end blocks investigation. "Again, these alleged distinctions are without substance," the brief said. "Commerce did not verify in either investigation. If the agency was not going to rely on facts available in the record including its 'in lieu of verification' questionnaire in Ellwood City, what was it going to rely on? Were it to rely on any information other than that in the record, it would have been making determinations that were not supported by substantial evidence."