Commerce Will Still Use Single Respondents in AD/CVD Cases When Necessary, DOJ Says

The Commerce Department may still use single respondents in antidumping and countervailing duty investigations, despite a recent U.S. Court of Appeals for the Federal Circuit ruling that found fault with the practice in one proceeding, a Justice Department attorney said during Georgetown Law's Annual International Trade Update conference on June 13.

While it is not the norm for Commerce to only choose one respondent, the Court of International Trade had originally sustained Commerce's decision to do so in YC Rubber v. U.S. where a second respondent backed out, said Susan Bae, senior trial counsel at DOJ. The Court of Appeals overturned that case (see 2208290026), but Bae said that the court's decision was "couched" and it was unclear whether the CAFC "categorically banned" the use of single respondents.

Judge Pauline Newman, who issued the CAFC decision, said that the question was whether the statute permitted Commerce to review a single respondent when others had requested review and when the department failed to show that it was reasonable to calculate the all-others rate based on only one respondent. Bae pointed out that the decision noted that the statute only "generally requires" more than one respondent. Though the decision may limit Commerce's ability use only single respondents, Bae said the department has interpreted the decision to mean that it can still move forward when a respondent drops out.

Commerce refused to read YC Rubber as imposing a categorical rule in the remand of Jiangsu Senmao v. U.S. and explained its reasoning in detail (see 2304030049), Bae said. Quoting from DOJ's argument in Jiangsu Senmao, she said that by forcing Commerce to choose multiple respondents, the department could be "endlessly obliged to review period-specific information for additional companies well beyond the original review" (see 2306010048).