CAFC Says Commerce Abused Its Discretion in Rejecting Late Submission in CVD Case

The U.S. Court of Appeals for the Federal Circuit on Aug. 4 held that the Commerce Department's rejection of a questionnaire submission by countervailing duty respondent Tau-Ken Temir that was one hour and 41 minutes late was an abuse of discretion. Judges Timothy Dyk and Sharon Prost said that future courts reviewing whether Commerce "abused its discretion by rejecting a submission as untimely" shall consider the "remedial-not-punitive purpose" of antidumping and countervailing duty laws, the burden on Commerce that stems from the untimely submission, whether any finality concerns are implicated by accepting the documents and the "late-filing party's efforts" and its "reasons for the submission's untimeliness." Applying those factors, Dyk and Prost said Commerce clearly abused its discretion in deciding not to accept Tau-Ken's late submission, which led to a 160% adverse facts available rate. Judge Todd Hughes dissented from the decision, declaring that "Commerce has extensive authority to enforce its own deadlines."