CIT Says Commerce Regs Can't Usurp Statute on Mandatory Respondent Selection in AD Review
The Commerce Department's regulations allowing it to set deadlines to file separate rate applications or certifications can't trump its statutory duty to examine the largest exporters by volume in the 2021-22 review of the antidumping duty order on steel racks from China, the Court of International Trade held on June 16. Judge Jenniver Choe-Groves said that under the facts of the review, the agency improperly declined to consider exporter Nanjing Dongsheng Shelf Manufacturing Co. as a mandatory respondent despite it being the largest exporter of subject goods to the U.S. due to its untimely separate rate application.
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"Commerce cannot impose a regulatory limitation on the selection of mandatory respondents that produces a result inconsistent with the express requirements of the statute," Choe-Groves held.
In the review at issue, Commerce picked Xinguang Rack and Suntop as the two mandatory respondents, declaring that "selection was limited to only those parties who timely submitted Separate Rate Applications and Separate Rate Certifications."
The applicable statute, 19 U.S.C. 1677f-1(c)(2), tells Commerce to use either a "statistically valid" sample of exporters or the exporters "accounting for the largest volume of the subject merchandise." Commerce didn't follow either approach, declaring that it decided to examine the companies accounting for the "largest value" of the subject merchandise. The agency said it normally looks to the largest volume, but, here, the quantities of steel racks imported from China are reported in "multiple units of measure," making value and not volume the better measure for respondent selection.
Choe-Groves held that this deviation from the statute "was not in accordance with law." The statute clearly says Commerce shall use the "largest volume" as the appropriate criteria to select mandatory respondents.
The judge added that Commerce's decision to "reject consideration" of Dongsheng as a mandatory respondent also was illegal. While the company's separate rate certification was "untimley," it was only filed one week after the deadline and at the same time as the other respondents considered for separate rate status, given that they were given extensions. The judge said the data in Dongsheng's certification was thus "reasonably available to Commerce."
Choe-Groves said that while she "understands" Commerce's regulations let it establish deadlines to receive separate rate certifications and applications, the facts here show that Commerce failed to comply with the "statutory requirements for the selection of mandatory respondents based on exporters of the 'largest volume' of subject merchandise."
Gregory Menegaz, counsel for Dongsheng, said in an email he's "grateful and satisfied" that the court agreed with his position that Commerce was "obligated to select the largest exporters, which would have included Dongsheng," and that the agency wasn't "impeded whatsoever by the timing of the filing of Dongsheng's" submission.
(Nanjing Dongsheng Shelf Manufacturing Co. v. United States, Slip Op. 25-76, CIT # 24-00085, dated 06/16/25; Judge: Jennifer Choe-Groves; Attorneys: Gregory Menegaz of the Inter-Global Trade Law Group for plaintiff Nanjing Dongsheng Shelf Manufacturing Co.; Tara Hogan for defendant U.S. government; Roger Schagrin of Schagrin Associates for defendant-intervenor Coalition for Fair Rack Imports)