AD Petitioner Says Remand Proceeding Makes Exhaustion Argument Over On-Site Verification Moot
A remand where the Commerce Department reviews a particular issue is a new agency action and renders moot any arguments that a party did not exhaust its administrative remedies prior to the remand, said plaintiffs in an antidumping duty case, led by Ellwood City Forge Co., in a reply brief at the Court of International Trade on June 17. As such, the plaintiffs' arguments as to the agency's procedural obligations relating to on-site verification made during the remand proceeding were properly exhausted, the brief, recently made public, said (Ellwood City Forge Company v. U.S., CIT Consol. #21-00007).
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In the AD investigation on forged steel end blocks from India, Bharat Forge was the sole mandatory respondent. Commerce determined it couldn't conduct on-site verification, as required by law, due to COVID-19-related restrictions. The agency instead issued a supplemental questionnaire to the investigation's respondents. Absent the results from on-site verification, Commerce said it needed more information and then ultimately relied on facts otherwise available to calculate a de minimis dumping rate.
Facing a CIT challenge, Commerce requested a voluntary remand period to review its position. On remand, Commerce considered conducting in-person verification because travel restrictions from the U.S. were lifted on India (see 2111010056). Instead, it dropped its reliance on facts otherwise available, finding the questionnaire a suitable stand-in, and left unchanged the de minimis margin. This position continues to be contested by the plaintiffs, petitioners in the investigation.
In reply, Bharat Forge argued the plaintiffs failed to exhaust their administrative remedies on the issue (see 2205250022). The respondent argued that the plaintiffs raised the issue for the first time on appeal and that it was never raised before Commerce, even though the agency would've been the appropriate place to raise it.
Responding to Bharat Forge's arguments, the plaintiffs said that a voluntary remand renders exhaustion arguments moot where Commerce requested to review new issues raised by the plaintiffs after the original determination. The voluntary remand constitutes new agency action and such a determination must comport with its procedural requirements.
"Commerce’s decision to use remand proceedings to dig in its heels and refuse to verify does not extinguish Plaintiffs’ right to judicial review of the lawfulness of Commerce’s conduct," the brief said. "Quite the opposite -- that Commerce did weigh these issues ... negates the policy considerations generally relied upon to justify exhaustion bars." The plaintiffs then argued that Bharat Forge failed to bring up its affirmative defense over the plaintiffs' verification arguments.