Exporter Missed Deadline for Certain Questionnaire Prompts Due to 'Carelessness,' Producer Says
Domestic producers led by Dupont Teijin Films joined the U.S. government (see 2412090058) in defending the Commerce Department in another missed deadline case, calling an exporter slapped with an adverse facts available rate “careless” and “inattentive” (Jindal Poly Films v. U.S., CIT # 24-00053).
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The case was brought by Jindal, a mandatory respondent in an administrative review of countervailing duty order on Indian polyethylene terephthalate film, sheet and strip (PET film) (see 2409100065). The exporter missed a deadline for one part of its Section III questionnaire responses -- it said both its sections II and III questionnaire responses had deadlines set for Jan. 18, 2022, which it presumed actually meant Jan. 18, 2023, while answers to questions in Section III regarding affiliated parties were due on “December 26, 2022,” which it presumed actually meant Dec. 27, 2022 because Dec. 26 was a federal holiday. Jindal said it inadvertently missed the Dec. 27 deadline.
It discovered the error shortly after the December deadline and sought a retroactive extension, but Commerce rejected the request and refused to accept any further submissions from Jindal, it said. The department instead resorted to total adverse facts available, hitting the exporter with a 116.96% CVD rate.
Commerce was justified in doing so, Dupont argued.
The department’s regulations, as the questionnaires themselves explained in their instructions, only allow consideration of untimely deadline extension requests if they are late due to “an extraordinary circumstance,” it said.
Jindal wasn’t able to meet that standard, it said. The exporter claimed that it missed its deadline partly because a relevant employee was on medical leave with a “severe illness,” but it “failed to provide any supporting documentation, failed to identify the relevant employee, and failed to establish that the relevant employee was responsible for responding to the questionnaire or requesting an extension,” Dupont said. That meant Jindal’s citations to other, successful challenges to Commerce’s strict deadline policy involving medical delays weren’t helpful to its case, the producer said.
It also argued Jindal had “effectively conceded” employee illness wasn’t the proximate cause of its late extension request. Jindal also claimed there had been a “communication gap” between its employees, causing the company to accidentally misinterpret Commerce’s deadline.
And Jindal couldn’t make the argument that Commerce’s stated deadline was vague and inaccurate because the exporter hadn’t raised it during administrative proceedings, Dupont claimed.
Dupont also defended the subsequent application of AFA to the exporter. Citing Nippon Steel, it said that Jindal failed to cooperate to the best of its ability; that standard “does not condone inattentiveness [or] carelessness,” it argued.
Jindal’s claim it had been working diligently, and had simply made in error, was an attempt to convince the court the standard “is self-judging, and that Commerce should refrain from applying total AFA if a respondent asserts that it tried its best,” it said.
The U.S. Court of Appeals for the Federal Circuit has recently ruled in another case involving Oman Fasteners that Commerce may not drastically department from an accurate antidumping duty rate without “a particularly strong need to deter noncompliance.” And if the department does post an extremely high rate for an exporter, it must do so based on record evidence of a mistake that reflects “a serious failure to cooperate” (see 2501070084).