CIT Questions Commerce's Missed Filing Deadline Practice Ahead of Oral Argument
The Court of International Trade released its questions ahead of March 19 oral arguments in a case on the 2019-21 review of the antidumping duty order on Indian quartz countertops. Judge Mark Barnett asked a host of questions pertaining to the Commerce Department's filing deadlines (Cambria Co. v. United States, CIT # 23-00007).
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In the review, respondent Antique Group received a 323.12% adverse facts available AD rate after missing a filing deadline by five hours. To get the non-selected respondents' rate, Commerce refused to use AFA rates, leading to a 3.19% rate for the other exporters. Petitioner Cambria brought suit to get Commerce to use the AFA rate as part of its selected-rate calculation (see 2312040066). Antique Group also contends that the use of AFA pertaining to the missed deadline is unlawful.
The review also saw Commerce depart from its usual 5 p.m. EST filing deadline and instead use a 10 a.m. EST deadline. In his questions, Barnet asked to what extent Commerce must justify a departure from the 5 p.m. EST deadline, also asking if the agency gave a "sufficient justification in this case." The judge asked if Commerce addressed the role of the earlier deadline in its analysis of whether "extraordinary circumstances were involved" in Antique Group missing the deadline.
Barnett asked, if he finds that Commerce "failed to justify a departure from the regulation providing for a 5 p.m. deadline, in light of Antique Group otherwise meeting the 5 p.m. deadline, is the appropriate remedy for the court to require Commerce to accept the otherwise timely filing rather than permitting Commerce to attempt to justify the departure post hoc"?
In its defense, Commerce said that review of supplemental questionnaires "requires significant time and effort on the part of Commerce." Barnett asked to what extent the agency connected that statement to the fact the questionnaire was only filed around five hours after the deadline. He also inquired about Commerce's practice of allowing a firm that misses a deadline one chance to submit the information, where the firm failed to file a complete submission before the deadline, so long as that firm has (a) not previously been given this chance in the proceeding and (b) identified the steps it has taken to avoid this type of untimely filing in the future.