Commerce Abused Its Discretion in Rejecting Exporter's Untimely Submission in CVD Review, CIT Says
The Commerce Department abused its discretion in rejecting exporter Jindal Poly Films' affiliate questionnaire response as untimely in the administrative review of the countervailing duty order on polyethylene terephthalate film, sheet and strip from India for the 2021 review period, the Court of International Trade held on Aug. 1. Judge Mark Barnett said Commerce failed to consider other factors in rejecting the submission, including the "early stage of the proceeding," the fact that Jindal was selected only after requests for review of all other companies were withdrawn and whether accuracy considerations outweighed the burden on Commerce.
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In the review, exporter SRF was picked as the sole mandatory respondent. However, after SRF, the petitioners and importer Polyplex USA withdrew their requests for review of all companies except Jindal, Commerce selected Jindal for individual examination. The due date for Jindal's affiliate questionnaire response was set for Dec. 27, and the due date for the company's responses to the Section II and parts of the Section III questionnaire was set for Jan. 18, 2023.
Jindal missed the Dec. 27 deadline. Counsel for the exporter on Dec. 31, 2022, asked for an extension of time to Jan. 31, 2023, to field the affiliate questionnaire response. The exporter said the extension was warranted due to a "communication gap" and a "medical leave" for a "severe illness" by the "person responsible for addressing matters before the agency." In addition, Jindal said other personnel "inadvertently misconstrued" the deadline for all responses as Jan. 18, 2023.
After Jindal tried to submit the affiliate questionnaire response on Jan. 7, Commerce rejected the submission and the company's extension request. The agency said the exporter failed to show the existence of "extraordinary circumstances" warranting the extension, questioning the existence of the medical emergency and finding that Jindal missed the deadline solely based on a "mere misunderstanding."
Commerce used this missing document to impose a 116.96% adverse facts available rate on the company.
In discussing the agency's rejection of the affiliate questionnaire response, Barnett first said Jindal didn't need to exhaust its administrative remedies by arguing against the rejection at the final results stage. The judge homed in on the fact that the agency seemingly ignored the fact that the mishap regarding the questionnaire occurred early in the proceeding in finding that Jindal "impeded Commerce's proceeding."
The agency "effectively treated its extraordinary-circumstances standard as fixed, regardless of the stage of the proceeding," Barnett held, adding that, in so doing, "Commerce failed to account for all relevant considerations."
The judge faulted the agency for only basing its decision to reject the exporter's submission on the "facts and circumstances proffered by Jindal." Barnett said Commerce "neglected to consider adequately (either alone or in conjunction with the fact that Jindal’s responsible employee was suffering from a serious medical condition)" various other considerations, including "the early stage of the proceeding."
The court said the agency also failed to consider the selection of Jindal only after requests for review of all other companies, including the mandatory respondent, were withdrawn and "whether, at the time, accuracy considerations attendant to Commerce’s review of a single mandatory respondent for the review period outweighed the burden on the agency." Barnett added that Commerce failed to consider Jindal had already filed the questionnaire response, and had done so three days before the requested extended deadline, "when Commerce responded to the extension request some 28 calendar days after it was filed."
Barnett said "Commerce provided no justification for why finality should have prevailed months before the preliminary results." While there are times it may be appropriate for the agency to deny an untimely extension request because "the agency has already expended resources filling in the gaps created by the missed deadline," that "is not the case here," the judge said.
Here, "Commerce failed to consider all relevant information and thus abused its discretion by denying Jindal’s extension request and rejecting the untimely submission." The judge instructed Commerce to consider the affiliate questionnaire responses and "conduct any necessary further proceedings," including revisiting the AFA rate, since the sole basis for the rate was the exporter's failure to submit the affiliate questionnaire response.
(Jindal Poly Films v. U.S., Slip Op. 25-98, CIT # 24-00053, dated 08/01/25; Judge: Mark Barnett; Attorneys: Mark Lehnardt of Davis & Leiman for plaintiff Jindal Poly Films; Daniel Bertoni for defendant U.S. government; Stephanie Hartmann of Wilmer Cutler for defendant-intervenors led by DuPont Teijin Films)