US Opposes Bid for Court Mediation in AD Case, Says Process Won't Reach a Solution

Mediation in an antidumping duty case will not result in a quicker resolution nor would it help in reaching a resolution, DOJ said in a March 16 motion opposing Japanese exporter Nagase & Co.'s bid for court-annexed mediation. DOJ said it looked at the issues of the case and decided not to request a voluntary remand. As such, it intends to fight Nagase's characterization of the issues, meaning the best way to handle the case will be to "simply brief and decide the claims on their merits," the U.S. said (Nagase & Co. v. United States, CIT #21-00574).

The case contests the final results in the first administrative review of the AD order on glycine from Japan. Nagase, along with its affiliated producer Yuki Gosei Kogyo Co., was one mandatory respondent in the review, which found Nakase dumped glycine into the U.S. market at a rate of 27.71%.

In the review, Commerce included Nagase's R&D expenses for goods other than glycine in its G&A expense ratio, and Commerce relied only on YGK's accounting practices from before the period of review -- practices that Nagase said have since changed (see 2111290029). The exporter argued that doing so violated the law because it made a factual finding that ran contrary to the agency's past practice of excluding R&D expenses for non-subject merchandise. Nagase also said that Commerce "inadvertently duplicated and reported" the incorrect U.S. duty amounts for Nagase's constructed export price sales, resulting in a "grossly inflated" assessment rate. Nagase moved for court-annexed mediation to resolve the issue of Commerce's liquidation instructions, which it views as a simple error in need of a quick fix (see 2203040053). GEO Specialty Chemicals opposes mediation (see 2203140032).

"Mediation will not facilitate the resolution of this case because it cannot resolve the parties’ disagreement as to whether it is appropriate for Commerce to reopen an issue to correct an error after the final results have been published, especially where Commerce was not responsible for the alleged error," DOJ said. "This is a question for the Court."

DOJ said that "mediation can serve no useful purpose," since it will not change the fact that Nagase failed to exhaust administrative remedies nor will it change the government's position on Commerce's liquidation instructions. "Moreover, there is no benefit to mediating a case such as this, which is based on a closed administrative record and will involve no discovery," the brief said. "Adjudicating such a case is already a quick and efficient process, whereas mediation risks wasting the resources of the Court and the parties by requiring them to prepare mediation papers and participate in mediation sessions, only to then brief and argue their cases anyway if mediation fails."