Another Exporter Pushes Back Against AFA CVD Rate for Missed Deadline

An Indian exporter of polyethylene terephthalate film, sheet, and strip, or PET film, moved for judgment Sept. 6 in another case contesting the Commerce Department's controversially strict enforcement of its filing deadlines (see 2408300050 and 2405290065). The exporter said it missed its deadline because the employee it had placed in charge of filing had gone on medical leave due to “severe illness” (Jindal Poly Films v. U.S., CIT # 24-00053).

Exporter Jindal Poly Films also said it was a first-time mandatory respondent to a countervailing duty review and hadn’t had a lawyer during the initial weeks of the review, during which it submitted its delayed Section III affiliation questionnaire (see 2403280025). As a result, it received a 116.96% CVD rate.

Jindal Poly said it hadn’t anticipated becoming a mandatory respondent. Initially, another exporter, SFR Limited, had been selected as sole mandatory respondent, but it “abruptly” refused to participate in the review. The plaintiff said petitioners then withdrew their review requests regarding all exporters -- except Jindal Poly. Jindal Poly therefore became the new mandatory respondent, though, it noted, it hadn’t requested the review, had no representation and hadn’t yet participated in any way.

It said it found the early stages of the review confusing.

First, it said, the department didn’t send the questionnaires directly to Jindal Poly, but instead asked the Indian government, represented by the legal consultancy YGK, to do so when it reissued them Dec. 12, 2022.

The department then set the deadline for Jindal Poly’s initial questionnaire response to Sections II and III on “January 18, 2022,“ and the deadline for Jindal Poly’s “response to Section III identifying affiliated companies” on “December 26, 2022.”

“Commerce did not acknowledge that the deadline for ‘Section II and III: January 18, 2023’ was listed first, that this deadline did not indicate whether it was for all of Section III or Section III minus affiliated party questions, or that the second reference to Section III, ‘Section III Identifying Affiliated Companies,’ may have been confusing to an unrepresented party with its institutional memory out on medical leave for severe illness,” it said.

The latter deadline was also actually supposed to be Dec. 27, as federal offices wouldn’t have been open Dec. 26, the exporter said. It also noted that the first deadline was “obviously” supposed to have been set for 2023.

Jindal Poly took on representation Dec. 30, 2022 -- also YGK -- and its attorneys immediately sought a 15-day extension for the exporter’s affiliated companies questionnaire response. They explained they hadn’t had legal representation before that point and that the only employee with institutional knowledge regarding reviews was “on medical leave with a severe illness,” resulting in “a gap of understanding at the company.”

But Commerce rejected the extension request and suspended the deadlines for all subsequent submissions, including Jindal Poly’s initial questionnaire response, Jindal Poly said.

Commerce claimed that its circumstances weren’t extraordinary and that Jindal Poly hadn’t cooperated to the best of its ability, the exporter said. It said the department also noted that Jindal Poly’s legal representative, YGK, had looked at the questionnaire prior to Dec. 30, 2022 -- not acknowledging that YGK had previously represented the government of India and had been fulfilling Commerce’s request to send the questionnaire to the exporter in the first place.

The exporter called the decision to reject the extension request an abuse of discretion. It also argued that, even if it hadn’t been, the adverse facts available rate was far too high and inaccurate.