Remand Results Over On-Site Verification Matter Didn't Address Plaintiffs' Claims, US Producers Argue

"Virtually every substantial issue" raised by plaintiffs in an antidumping duty challenge led by Ellwood City Forge Company still remains following a voluntary remand proceeding from the Commerce Department, the plaintiffs argued in a revised March 11 motion for judgment at the Court of International Trade. In particular, Ellwood argued Commerce's remand left unaddressed the issue of Commerce's failure to conduct verification in the antidumping duty investigation on forged steel end blocks from India (Ellwood City Forge Company v. United States, CIT #21-00007).

In the investigation, Bharat Forge Limited was the sole mandatory respondent. Commerce determined that it could not conduct on-site verification, as required by law, due to COVID-19-related restrictions. The agency instead issued a supplemental questionnaire to the investigation's respondents as a stand-in for verification. Absent the results from on-site verification, Commerce said it needed more information and then ultimately relied on facts otherwise available and calculated a de minimis dumping rate.

Facing a CIT challenge, Commerce requested a voluntary remand period to review its position. On remand, Commerce considered conducting in-person verification since travel restrictions from the U.S. have been lifted on India (see 2111010056), but ultimately did not. Instead, it dropped its reliance on facts otherwise available, finding the questionnaire a suitable stand-in and left unchanged the de minimis margin.

The plaintiffs, petitioners in the investigation, resubmitted their motion for judgment to account for the remand. "Critically, Commerce rejected the Court’s invitation to 'perform onsite verification, which would moot all procedural issues created by the agency’s decision to short-circuit verification,' instead using two-and-a-half months’ worth of the Court’s remand allotment merely to recant Commerce’s original statements that 'on-site verifications' are 'required under Section 782(i) of the Act' and that Commerce’s use of Bharat’s unverified data was an application of 'facts otherwise available,'" the brief said.

The agency again did not offer an explanation for refusing to conduct on-site verification during the remand period, the plaintiffs said. The brief then went on to restate the plaintiffs' arguments, which include pushing the position that Commerce's own regulations require on-site verification and that even if on-site verification can be forgone, the agency's single questionnaire was not an adequate replacement.