Commerce Asks for Remand in CVD Case to Consider CAFC Decision Over Use of Only 1 Respondent
The Commerce Department requested a voluntary remand in a countervailing duty case at the Court of International Trade in light of a U.S. Court of Appeals for the Federal Circuit ruling that the agency cannot select just one mandatory respondent in an antidumping or countervailing duty review where multiple exporters have requested a review. Filing an unopposed motion for remand Feb. 14, Commerce said the decision, YC Rubber v. U.S., "may implicate Commerce's respondent selection determinations at issue in this litigation" (Jiangsu Senmao Bamboo and Wood Industry Co., et al. v. U.S., CIT Consol. # 20-03885).
The dispute arises from Commerce's 2017 CVD administrative review on multilayered wood flooring from China. In the review, Commerce used CBP data later found to be faulty to pick Baroque Timber Industries and Jiangsu Guyu International Trading as the mandatory respondent, finding they were the two largest exporters of multilayered wood flooring. While not contesting Baroque Timber's selection, the plaintiffs, led by Jiangsu Senmao Bamboo and Wood Industry, took issue with Jiangsu Guyu's presence as a mandatory respondent.
During the review, Commerce rejected as untimely a submission from Jiangsu Guyu related the respondent selection process that included quantity and value information. In the submission, the exporter said the CBP data had inaccurate entry information due to inconsistent and unusual units of measurement and uncommonly large entry volumes, among other issues. In August, the trade court remanded the case so that Commerce could fully address comments submitted on the use of the errant CBP data. CIT ruled that the agency should not have rejected Jiangsu Guyu's quantity and value data.
On remand, Commerce admitted it failed to address one entry in the CBP data that had a different unit of measurement from the rest of the data, ultimately finding the CBP data to be "unrealistic" for an unnamed number of entries. While the agency redacted the precise number of the relevant entries, Commerce said it constituted only 0.1% of all entries in the CBP data. After removing these entries, Jiangsu Guyu no longer remained as one of the top two exporters of multilayered wood flooring from China (see 2212130034). As such, the company was stripped of its mandatory respondent status, though the agency continued to assign it a 122.92% CVD rate.
The result left only one mandatory respondent in the review, which the Federal Circuit held as untenable in the YC Rubber opinion (see 2208290026). Commerce filed for voluntary remand to reconsider its respondent selection decisions. "Because the mandate in YC Rubber was not issued until January 18, 2023, Commerce has not yet had an opportunity to consider the implications of YC Rubber for this matter," the brief said. "Accordingly, Commerce should be permitted to address whether that decision affects its decisions in this litigation."