Commerce Shows Futility of Raising Verification Questions Administratively, AD Petitioner Argues

The Commerce Department's admission that the administrative case brief in an antidumping duty matter wasn't the right time to bring up arguments over verification procedures reveals the futility of raising verification concerns administratively, plaintiffs led by Ellwood City Forge argued to fight off claims that it failed to exhaust its administrative remedies. Submitting a notice of supplemental authority at the Court of International Trade, Ellwood said Commerce's remand results in a separate AD case declaring that 63 days was "far too late" to pursue a request for virtual verification in lieu of on-site verification due to COVID-19 restrictions indicates that raising the issue of virtual verification in the petitioner's case was futile (Ellwood City Forge Company v. U.S., CIT #21-00077).

Ellwood's case challenges elements of Commerce's final determination in the antidumping duty investigation of forged steel fluid end blocks from Germany. The plaintiffs are challenging Commerce's decision to use a questionnaire instead of on-site or even virtual verification due to COVID-19 travel restrictions. The agency is contesting this claim in the trade court, arguing, among other things, that the court should toss claims it should have explored virtual verification since they were not raised administratively (see 2112230065).

In another case, brought by Bonney Forge and also contesting the use of a questionnaire, Commerce on remand last week defended its verification action (see 2207050070). Plaintiffs in Ellwood cite that remand, declaring it indicates the futility of raising the option of virtual verification during the review.

Commerce said in its remand that Bonney Forge raised the issue of verification "far too late in the proceeding" with only 63 days left before the final determination. "This corroborates Plaintiffs’ futility arguments in this action," the Ellwood notice said. "Indeed, in this action, there were only 28 days between the filing of case briefs and the final determination -- i.e., less than half of the time available in Bonney Forge. Commerce simply could not have arranged an on-site verification after case briefs. Thus, such arguments qualify for the futility exception to the exhaustion doctrine."