CIT Grants Voluntary Remand Request to Reconsider Lack of On-Site Verification in AD Review
The Court of International Trade on Oct. 29 granted the Commerce Department's request for a voluntary remand in an antidumping duty case, so the agency can review whether it was appropriate to rely on supplemental questionnaire responses, seeing as it couldn't conduct an on-site verification. The court found that Commerce gave enough evidence of "substantial and legitimate" concerns to remand the case and further explore whether the "novel legal approach that Commerce took during the [COVID-19] pandemic" can be properly supported. The court also noted that on-site verification may now be possible given eased travel restrictions (Ellwood City Forge Company, et al. v. United States, CIT #21-00007).
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The court order comes from a case over the final determination in the antidumping duty investigation of forged steel fluid end blocks from India, in which Bharat Forge Limited served as the sole mandatory respondent. During the investigation, Commerce determined that it could not conduct on-site verification, as required by law, due to COVID-19-related restrictions. So, the agency issued a supplemental questionnaire to the investigation's respondents as a stand-in for the on-site verification. Absent the results from verification, Commerce said it needed more documents and information and then ultimately relied on facts otherwise available.
This prompted a challenge from the plaintiffs, led by the Pennsylvania-based Ellwood City Forge Company, which challenged Commerce's reliance on the questionnaire instead of the on-site verification, the agency's decision not to perform the on-site verification and Commerce's reliance on facts otherwise available, among other things. The agency then submitted a voluntary remand motion to "reconsider its position on the questionnaire in lieu of on-site verification and subsequent application of facts available in this investigation."
In his order granting the remand, Judge Stephen Vaden noted that travel restrictions from the U.S. have been lifted on India, potentially alleviating the restrictions on conducting on-site verification. As part of this move, the CDC updated India's travel notice, now recommending full vaccination or regular testing for people traveling to India. Vaden said that pairing this guidance with the federal government vaccine mandate -- which presumably means that all Commerce employees are fully vaccinated -- increases "the feasibility of on-site verification."
"Indeed, under the current circumstances, Commerce may wish to consider seeking voluntary remand in similar cases to comply with its verification obligations," the order said.