AD Respondent Failed to Bring Up Question of On-Site Verification Administratively, US Tells CIT
Antidumping duty respondent Asia Pacific Fibers (APF) failed to exhaust its administrative remedies in its challenge of the Commerce Department's use of a questionnaire instead of on-site verification, the U.S. argued in a Sept. 26 reply brief at the Court of International Trade. Given this failure, the U.S. had no chance to consider and address the issues raised by the respondent for the first time, the brief said. Further, the U.S. defended Commerce's use of total adverse facts available over APF's failure to supply "critical" supplementary information over the respondent's cost and sales data (PT. Asia Pacific Fibers v. United States, CIT #22-00007).
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The case concerns the antidumping duty investigation on polyester textured yarn from Indonesia. Preliminarily, Commerce assigned APF a 9.21% dumping rate. But during the investigation, Commerce decided not to conduct on-site verification due to COVID-19 concerns in Indonesia, instead issuing a questionnaire. The agency then took issue with the sales portion of APF's responses, finding that certain segments were illegible or untranslated, and ultimately hitting the respondent with a total AFA rate of 26.07%.
APF filed suit at the trade court, arguing against Commerce's lack of on-site verification -- a question raised in a host of other CIT cases (see 2202150027). In response, the U.S. said that the issue should be tossed since the respondent failed to raise it administratively. "APF’s silence on these issues is only explainable by the simple fact that APF’s interests changed when a decision unfavorable to it resulted from its own failure to provide documentation to verify its data and questionnaire responses. Even if the Court were to agree with any of the arguments now raised by APF, which it should not, a remand on this issue would conflict with the very purpose of exhaustion, depriving the agency of the opportunity to consider the issue in the first instance and apply its expertise to rectify administrative mistakes or provide adequate explanation on the record in advance of judicial review.
The government furthered this argument by telling CIT that no exceptions to the exhaustion doctrine apply in this case. APF claimed that the issue is a legal one so raising the issue administratively would have resulted in a futile outcome. The U.S. said that while the plaintiff "attempts to circle a legal question," the problem of on-site verification "requires application of Commerce's expertise for developing verification procedures and further development of the factual record."
The government also argued that Commerce's verification was in line with the statute and needed given the COVID-19 pandemic. "The statute gives Commerce wide latitude in its verification procedures; therefore, Congress has implicitly delegated to Commerce the latitude to derive verification procedures ad hoc," the brief said. "Commerce’s use of detailed questionnaires, in light of the exigencies and restrictions caused by the global COVID-19 pandemic, complied with the statutory mandate to verify information."
Commerce also properly hit APF with total AFA, the government said. The U.S. argued that it repeatedly requested "critical supporting information" from the respondent, but it failed to receive it, revealing a failure to cooperate on the part of APF. It was the respondent's burden to ensure that the data could be verified, thus Commerce's failure to verify the information rests on the respondent, the brief said.