CIT Again Sends Back Use of Questionnaire as Verification Due to Procedural Issues
The Commerce Department failed to consider the "reliance interests" of antidumping petitioners led by Bonney Forge Co. when sticking by its decision to find that questionnaires issued in lieu of on-site verification satisfied the statute's requirement for verification, the Court of International Trade ruled on Aug. 21. Judge Stephen Vaden said that while past practice "is not an inescapable straitjacket," an agency must put a "reasoned explanation on the record" in compliance with the rules established by the Supreme Court in Department of Homeland Security v. Regents of the University of California.
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Vaden noted that when an agency deviates from its past practice, it must be cognizant of the fact that its long-standing policies "may have 'engendered serious reliance interests that must be taken into account.'" When Commerce stuck by its decision regarding the use of questionnaires instead of on-site verification in the case on the AD investigation on forged steel fittings from India, it failed to account for the interests Bonney Forge had in relying on Commerce's past practice, the court said.
The court found that Commerce tried to "dodge this responsibility" by showing that its remand decision is in line with a two-year pandemic policy that used questionnaires instead of on-site verification. Vaden said that citing "an expired pandemic policy is insufficient to avoid Commerce's obligation to acknowledge Bonney Forge's reliance interests in the prior policy of on-site or in-person verification."
The judge added that the remand results failed to account for alternatives. Vaden said Commerce essentially held that since what it did in 2020 was enough, it didn't need to consider any further alternatives. This finding conflates a merits question with a procedural one, the court said. On remand, the agency must now explain what other steps closer to on-site verification it has considered, "now and in 2020," and why it rejected them in favor of questionnaires.
The court previously sent back the case so that Commerce could address whether virtual verification was a possibility at the time of the investigation, which was carried out in 2020. The agency said that it was not feasible given the local lockdown restrictions in India at the time (see 2207050070). Vaden said the agency provided a thorough explanation of the predicament but that the two procedural flaws cited above still marred the remand. Commerce now has 150 days to file a new remand determination.
(Bonney Forge Corp. v. United States, Slip Op. 23-120, CIT # 20-03837, dated 08/21/23; Judge: Stephen Vaden; Attorneys: William Fennell of Schagrin Associates for plaintiffs led by Bonney Forge; Kara Westercamp for defendant U.S. government; Aqmar Rahman of Trade Pacific for defendant-intervenor Shakti Forge Industries)