Summary
The United States Court of Appeals for the Federal Circuit reviews the U.S. Court of International Trade's decision upholding the Department of Commerce's rejection of Tau-Ken Temir LLP's questionnaire response as untimely in a countervailing duty investigation. The appellate court finds that Commerce abused its discretion in rejecting the submission, which was filed shortly after an automatic extension triggered by a late-day extension request, and vacates the judgment for remand.
Topics
Practice areas
Questions Presented
- Whether Commerce abused its discretion in rejecting Tau‑Ken’s September 16 submission as untimely
- Whether the one‑day extension request filed on September 15 was timely and should have been granted
Holdings
- Commerce abused its discretion in rejecting the September 16 submission; the Trade Court’s judgment is vacated and the case remanded with instructions that Commerce must accept the submission and proceed with the CVD investigation
Key quotations
“We conclude that Commerce abused its discretion in rejecting Tau‑Ken’s September 16 submission.” (at 26)
“Commerce must accept the September 16 submission and proceed with its CVD investigation accordingly.” (at 26)
Factual background
Commerce initiated a countervailing‑duty investigation of Kazakhstani silicon metal. Tau‑Ken filed several timely questionnaire responses but sought extensions for the subsidy portion. After a series of partial extensions, Commerce set a deadline of September 16 8:30 a.m. Tau‑Ken’s counsel began filing at 5:31 a.m. but did not complete the submission until 10:11 a.m., 1 hour 41 minutes late. Commerce rejected the submission as untimely and issued an adverse inference, which the Trade Court upheld.
Procedural history
The Trade Court sustained the Department of Commerce’s final determination that Tau‑Ken received a countervailable subsidy rate of 160% because its questionnaire response was filed untimely. Tau‑Ken appealed that judgment to the Federal Circuit.
Remand instructions
Commerce must accept the September 16 submission and proceed with its countervailing‑duty investigation accordingly.