CAFC Finds Commerce Policy on Late Withdrawals From AD Duty Reviews Too Restrictive
The U.S. Court of Appeals for the Federal Circuit on Jan. 23 affirmed a lower court ruling against the Commerce Department’s new strict policies for ending antidumping and countervailing duty reviews of foreign exporters. Agreeing with a Court of International…
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Trade Decision issued in 2015, the CAFC held that Commerce improperly changed a rule, without the required notice-and-comment, when it said in a 2011 guidance document that it would only grant late withdrawals of requests for review in “extraordinary circumstances.” The underlying regulation directs Commerce to grant requests after the deadline when “reasonable.” An importer of glycine from China had challenged the policy when Commerce refused to end a review of its supplier, Baoding Mantong, even though both Baoding Mantong and the domestic petitioner had withdrawn their requests for the Chinese company’s review. Baoding Mantong’s withdrawal was late, and the company subsequently declined to participate in the review, so Commerce assigned it a penalty AD rate of more than 400 percent. Commerce has since amended the final results of the review under CIT order to retroactively end the review of Baoding Mantong without assigning it a new AD rate.