Restani Asks DOJ Why Commerce Visited Competitor's Factory Before Tilemaker's Scope Ruling

In Court of International Trade oral arguments June 25, a judge questioned both parties as to the reason that the Commerce Department made an allegedly ex parte visit to a domestic competitor while it was in the process of reaching a scope ruling on an importer’s ceramic tile (see 2402010046) (Elysium Tiles v. U.S., CIT # 23-00041).

Asked by importer Elysium Tiles’ attorney Daniel Craven if she would like him to start by answering her pre-argument questions, CIT Judge Jane Restani responded, “I don’t care what you want to do. I’d like to start with the ex parte problem.”

Craven explained that Elysium’s concerns over the proceeding were twofold: The importer felt that the memorandum produced by the department after the visit was inadequate, and it believed Commerce should have then, “based on precedent,” conducted another ex parte visit, to Elysium's facilities.

“I don’t remember a regulation on that,” Restani said.

Although there is no such regulation, Craven said, it is a departmental practice that has been discussed in several court cases. Such a visit would have allowed Elysium to present oral arguments regarding the scope ruling, especially as the scope ruling process otherwise, unlike the administrative review process, doesn’t allow for submission of argument briefs.

Restani pointed out that both sides’ arguments had been put down in the scope ruling.

“All right, you asked for a scope ruling,” she said. “And you put in a piece of paper. And that paper has some arguments in it. OK, and then does the domestic industry come back with a piece of paper that has some arguments for its side?” Craven agreed, and she responded, “OK, so it’s like a brief.”

Craven argued that although it was like a brief, that "piece of paper" also provided factual information and didn’t offer a formal process for presenting arguments. He explained that they did have a chance to review the domestic industries’ comments as well, but that that came in only in a supplemental questionnaire, which also had no formal argument process.

The ex parte meeting occurred the day before Commerce issued Elysium its supplemental questionnaire, he said, which was a matter of concern.

The government disagreed with his timeline (see 2312150063). Although the memorandum on the visit was issued the day before Commerce gave Elysium the supplemental questionnaire, the visit had actually occurred earlier that week, DOJ attorney Christopher Berridge said. And the factory visit to Elysium’s competitor, Florida Tile, was only one of several that occurred during the Assistant Secretary of Commerce’s hometown tour, he said. He agreed that the memorandum Commerce issued to Elysium was a “boilerplate” one that was regularly used for such visits, but said that the “important thing” was that nothing regarding the scope ruling was discussed during the visit.

Restani disagreed, pointing out that the statute said that all factual information regarding the meeting should have been provided in the memorandum, regardless of whether that information had to do with Elysium.

“So what were you doing if there was no information related to the proceeding?” she asked.

Berridge said that he wasn’t sure what had actually happened during the visit, but insisted that it “was not unique to this case.” And the supplemental questionnaire Commerce issued the following day didn’t have any questions related to information received during the tour, he said.

“How do I know that?” Restani asked.

“Because the Department of Commerce would have put that into this memorandum,” he replied.

“OK, in other words, I don’t know,” she said.