Commerce Failure to Investigate Affiliation 'Dereliction of Duty,' AD Petitioner Tells CIT
The Commerce Department erred in finding that respondent Habich and its U.S. sales agent aren't affiliated, as well as in its calculations of Habich's normal value based on its third-country sales to Mexico, petitioner Lumimove, doing business as WPC Technologies, argued. Filing a motion for judgment at the Court of International Trade on Dec. 5, WPC said Commerce's failure to further investigate the alleged affiliation between Habich and its U.S. sales agent amounted to a "dereliction of duty" (Lumimove, Inc., d/b/a WPC Technologies v. U.S., CIT # 24-00105).
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In the 2021-22 review of the antidumping duty order on strontium chromate from Austria, WPC alleged that Habich and its sales agent have a "commission arrangement that is commercially unreasonable on its face," calling into question the nature of the relationship between the parties. The petitioner argued that Commerce, at a minimum, erred in not probing further into the relationship "to discern if masked dumping was occurring."
WPC said Commerce "failed to adequately investigate" the relationship, arguing that the agency has an obligation to carry out a "diligent inquiry," an "administrative law duty to respond to WPC's comments that pointed out areas of additional investigation" and the "sole ability to investigate and inquire" in an antidumping review. The petitioner said it has no means by which to "conduct discovery, subpoena documents or witnesses, or otherwise gather information from Habich."
The petitioner said, despite these limits, it gave Commerce a "roadmap for exactly how to go about doing what it lacked authority to do itself." WPC said that while the agency "asked a watered-down version" of its questions, further inquiry should have been taken in light of Habich's failure to provide "any non-vague, substantial evidence in response." Instead, after Habich submitted a "single, self-serving, conclusory sentence" to explain its commission arrangement, "Commerce folded," the brief said.
In all, Commerce failed to "examine the relationship holistically -- or really at all," and also didn't adequately consider the "operational, as opposed to legal, aspects of the Habich/sales agent relationship," WPC said.
The petitioner also contested the use of Habich's Mexican sales given that its home market sales were found to be insufficient for calculating an AD rate. WPC argued that "evidence shows that it could not look to Mexico, because the overwhelming weight of the evidence shows that Mexico simply does not exist as an independent market for Habich."
The company added that "Commerce ignored comments and evidence to this effect during the review" and "took umbrage" with the petitioner's "rightful concerns in a way that further highlights the arbitrariness of Commerce’s overall approach." For instance, the petitioner said Commerce relied on factors it was "not intended to consider," including WPC's complaints in other administrative reviews, which "is out of bounds."
A party like WPC "must raise all problems in every administrative review, and Commerce has an obligation to consider those comments afresh each time, based on the facts on the record of that segment," the brief said. Commerce has no right to "excuse itself from reasoned analysis based on the facts, arguments -- and, apparently, frustration against petitioner WPC -- from a separate proceeding," the company said.