Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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The CAFC noted in Nippon Steel that mistakes sometimes occur , and the proceedings do not require perfection on the part of respondents . 117 Additionally , 19 CFR 351.302 ( d )( 1 )( i ) affords Commerce the discretion to determine whether to reject a submission filed after a deadline . In this particular case , the five-hour delay in submitting the supplemental questionnaire response did not impede Commerce from carrying out the administrative review and , had the proceeding been affected , Commerce could have extended the preliminary results to address the issues . By applying AFA , the non-selected companies and U . S . importers stand to suffer significant harm because of the punitive rate being assigned to non-selected exporters . The CIT has required Commerce to reconsider the untimely-filed submissions in similar cases where the agency rejected a submission and applied AFA for a minor error and where there was still time to consider the submission . 118 As the minor delay in filing did not affect the case , Commerce should reverse course and accept the late submission by Antique Group .
Petitioner ’ s Rebuttal Brief 119 � To avoid the application of AFA , a respondent must demonstrate that it acted to the best of its ability , which means the maximum that a respondent is able to do . Failure to carefully read the extension letter or to request an extension when faced with COVID-19 and travel challenges does not demonstrate maximum effort on the part of Antique Group and , thus , it did not act to the best of its ability .
� Nippon Steel explained that , while mistakes happen , the standard of care does not condone inattentiveness , carelessness or inadequate record keeping . In addition , the CAFC explained that AFA is warranted when there is a failure to respond , and it is reasonable for Commerce to have expected a more forthcoming response . Finally , Nippon Steel explained that Commerce is not required to show that a respondent made more than a simple mistake or any pressures placed on a respondent by a deadline . This is precisely the situation presented here ; Antique Group was inattentive and careless about deadlines , and it was reasonable for Commerce to have expected a more forthcoming response .
� In addition to the failure to submit the supplemental questionnaire response on time , Antique Group also refused to provide Commerce with information it had requested on product characteristics in an earlier supplemental questionnaire . Thus , even if Antique Group had submitted the supplemental questionnaire response on time , Antique Group was not fully cooperative elsewhere in the proceeding , as its refusal to remedy deficiencies related to the product matching criteria ( i . e ., the basis for all margin calculations ) would have required Commerce to apply total AFA as a result of the unreliable information .
� Commerce has no obligation to allow Antique Group to submit the missing information . While the supplemental questionnaire may have addressed gaps in the record , this does not supplant Commerce ’ s authority to set and hold parties to deadlines .
117
Id . at 5 ( citing Nippon Steel , 337 F . 3d at 1382 ).
118
Id . at 6-7 ( citing Pro-Team Coil I ; Marmen Inc . v . United States , 545 F . Supp . 3d at 1317 ( CIT 2021 ) ( determining that “ finality ” was not a concern ); Artisan ; Celik Halat I ; and Celik Halat II ).
119
See Petitioner ’ s Rebuttal Brief at 17-21 and 56-58 .
25 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved