CIT Says No Deadline for Rebuttals to Info ITA Places on Record in AD/CV Proceedings

The Court of International Trade found that there is no regulation, statute, or practice establishing a time limit for interested party submissions that rebut information that the International Trade Administration places on the record, and consequently remanded the ITA's decision to reject as untimely plaintiffs’ rebuttal of data that the ITA had placed on the record in a new shipper review of honey from China (A-570-863).

CIT declined to decide the question of whether the ITA’s decision to rescind the new shipper reviews, due to no bona fide sales by plaintiffs, is supported by substantial evidence until the ITA has accepted and considered plaintiffs’ rebuttal of the ITA’s data.

(However, CIT rejected plaintiffs’ argument that ITA should have also accepted rebuttal comments to a submission from Petitioners in the proceeding, as well as plaintiffs’ argument that the ITA failed to issue enough questionnaires and should accept new information.)

CIT Finds No Regulatory Deadline for Rebuttals to Info Submitted by ITA

Plaintiffs Wuhu Fenglian Co., Ltd. and Suzhou Shanding Honey Product Co. Ltd. disputed the ITA’s decision to reject as untimely a submission of factual information aiming to rebut certain U.S. Customs and Border Protection data that the ITA had placed on the record during the review proceedings.

The ITA argued that its decision to reject the submission was supported by a sentence of 19 CFR 351.301(c)(1), which says, in relevant part, that “any interested party may submit factual information to rebut, clarify, or correct factual information submitted by any other interested party….no later than 10 days after the date such factual information is served to the interested party.”

CIT rejected the ITA’s arguments, finding that the ITA interpreted 19 CFR 351.301(c)(1) out of context. According to CIT, the first sentence of that regulation clearly specifies that the 10-day time limit refers only to rebuttal of interested party submissions. As the ITA is not an interested party, CIT said, that regulation did not apply in these circumstances. CIT found that there was no applicable statute or regulation, nor even any well known agency practice establishing a time for plaintiffs to rebut factual information placed on the record by a non-interested party. Therefore, CIT said, the rebuttal submission at issue, which was submitted 20 days after the ITA's data was placed on the record and four months before the ITA's final results were due, was sufficiently timely to warrant acceptance and consideration.

Therefore, CIT remanded the final results of the new shipper review at issue for the ITA to accept and consider the excluded submission of factual information.

(Slip Op. 12-57, dated 04/25/12, Judge Carman)