AD Petitioners Failed to Bring Up Lack of On-Site Verification Issue Administratively, Exporter Argues
Plaintiffs in an antidumping duty case led by Ellwood City Forge failed to challenge the legality of the questionnaire in lieu of on-site verification due to COVID-19 travel restrictions until the case reached the Court of International Trade, highlighting their failure to exhaust administrative remedies, exporter Bharat Forge argued. In a reply brief filed May 20, the exporter said the issue was "ripe for consideration" during the AD case, "yet Plaintiffs inexplicably did not raise" it (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. "Plaintiffs challenged the legality of Commerce’s verification procedures for the first time on appeal," the brief said. "Plaintiffs never contested the use of the verification questionnaire before Commerce, even though the agency would have been the appropriate forum to brief the issue of what alternatives to on-site verification would have been most feasible and appropriate under the law. This Court should therefore refuse to consider this issue based on Plaintiffs’ failure to exhaust their administrative remedies."