Lack of 'Gap-Filling Information' at Commerce Should Mean Remand on Appeal, Importer Says

The U.S. Court of Appeals for the Federal Circuit should rule that pencil importer Prime Time exhausted its administrative options by asking the Commerce Department five times for "gap-filling" information that was necessary to determine the correct antidumping duty rate, the company said in a May 26 filing with the CAFC. The company "seeks remand here, directing the Trade Court to instruct Commerce to place gap-filling information only Commerce can access on the record to give Prime Time the meaningful opportunity provided by the statute to show the margin for its entries to be less than the highest prior margin," it said in its opening brief.

Prime Time's filing followed a CIT ruling this year that "barred" the company's arguments because they weren't brought to Commerce after it issued draft results of redetermination and sought comment. CIT "faulted Prime Time for not raising its concerns a sixth time, after Commerce issued the draft remand redetermination," Prime Time said. Despite Prime Time's "herculean effort, Commerce ignored and sidelined Prime Time’s efforts" and "the Trade Court affirmed without analysis," it said.

The company also objected to Commerce's use of the highest rate in applying adverse facts available after the producer didn't participate in the proceeding. "The circumstances leading to Commerce’s decision to apply AFA are compelling in favor of a rate lower than the highest rate ever determined," the company said. "The situation here includes the diligent efforts by Prime Time to correct errors in import papers and to fully cooperate in the proceeding by providing as much of the information requested by the Department as possible, to make up for deficiencies of its unaffiliated supplier, exporter Ningbo Homey." The CAFC "should reverse the Trade Court[']s decision finding Prime Time’s efforts irrelevant and remand for the Trade Court to instruct Commerce to consider Prime Time’s efforts if Commerce decides it can only apply an antidumping duty margin that is based upon AFA," it said.