CIT Sends Back Commerce's Method for Picking 2nd Respondent in AD Review in Confidential Order

The Court of International Trade in a confidential June 18 decision sustained parts and remanded parts of the Commerce Department's second review of the antidumping duty order on passenger vehicle and light truck tires from China. The court gave the parties until June 25 to review the confidential information in the decision (YC Rubber Co. (North America) v. U.S., CIT # 19-00069).

Judge Mark Barnett sent back Commerce's method for picking the second mandatory respondent in the review, along with its "decision to rescind the separate rate status" of exporters Wanda Boto, Mayrun, Hengyu and Winrun. In the text-only order, Barnett also remanded Commerce's denial of the "renewed requests to withdraw from review."

The case was sent back to the trade court after the U.S. Court of Appeals for the Federal Circuit said Commerce can't use only one respondent in an AD proceeding where multiple exporters have requested a review, finding that doing so cuts against the statute's unambiguous language (see 2208290026).

In the review, Commerce removed the separate rate status for four exporters that refused to serve as mandatory respondents because they said they hadn't kept the necessary records. During oral argument, Banrett called the companies' claim that the respondents shouldn't have been expected to hold on to their records throughout the course of the review "kind of silly" (see 2405170052).

However, the judge then said he was "having a hard time understanding the rationale of the agency” in revoking the plaintiffs’ separate rate statuses. He said that the department had offered only a “conclusion,” not an “explanation." The judge also appeared to admonish the exporters' attempts to avoid being selected as mandatory respondents and only receive a separate rate, particularly since the companies won on appeal that Commerce needed to use two respondents.