CIT Opinion Didn't Strip Commerce of Authority to Use AFA, US Companies Say of Commerce Remand

The Court of International Trade didn't and couldn't take away the Commerce Department's statutory authority to use facts available over the content of countervailing duty review respondent Celik Halat's questionnaire response once the agency accepted it, three defendant-intervenors argued in a May 5 reply brief. Celik Halat's responses were deficient over its reported use of the General Investment Incentive Scheme (GIIS) Customs Duty Exemption Program, warranting partial adverse facts available, the brief said (Celik Halat ve Tel Sanayi v. U.S., CIT #21-00050).

Celik brought the case to CIT to contest the CVD investigation on prestressed concrete steel wire strand from Turkey in which Celik served as a mandatory respondent. In the investigation, Commerce rejected Celik Halat's Section III response for being 87 minutes late. Prior to the late submission, the company said COVID-19, closed offices, no robust work-from-home infrastructure and a Turkish holiday necessitated a requested filing extension. Ultimately, the public version of the document was filed 87 minutes late. Commerce refused to grant a filing extension, saying the circumstances weren't extraordinary as laid out in the agency's regulations.

The trade court found this refusal to be an abuse of discretion, characterizing the move as a "draconian penalty" on Celik Halat for an inadvertent error (see 2202160021). On remand, Commerce dropped its use of AFA for the questionnaire response but continued to hold AFA for other elements of the respondent's submissions (see 2204180024). In comments on the draft remand, Celik Halat argued that the court's decision precluded the use of AFA.

"Contrary to Celik Halat's claim, the Court did not and cannot as a matter of law restrict the Department's statutory authority to apply facts available to the content of Celik Halat's questionnaire response once accepted for examination in the remand proceeding," the defendant-intervenors said. "In fact, Celik Halat's questionnaire response was incomplete, as the company acknowledged."

The defendant-intervenors -- Insteel Wire Products, Sumiden Wire Products and Wire Mesh -- argued that Celik Halat failed to provide the necessary information to allow Commerce to determine whether the program was countervailable and whether it was "tied" to nonsubject merchandise. Celik Halat purportedly didn't provide the information because it didn't believe the program was countervailable.

"The incomplete responses and withheld information prevented the Department from being able to conduct a complete analysis of the program," the brief said. "Celik Halat did not fully cooperate with the Department, withholding information it contended was not relevant according to an erroneous understanding of the law on the question of countervailability. The law does not support Celik Halat's unilateral decision to provide only what it believed to be relevant to the Department's analysis."