Nail Exporter Blasts Use of AFA Over 16 Minutes-Late Submission, CIT Grants Faster Briefing on PI Bid
The Court of International Trade on Dec. 28 granted exporter Oman Fasteners' motion to expedite briefing on its bid for a preliminary injunction in an antidumping duty case, after the company said the "punitive" duties would put it out of business. Judge Miller Baker was assigned to the case and quickly agreed to the ramped-up briefing schedule, ordering the government to file a reply to the PI motion by Jan. 10, 2023, and telling Oman Fasteners to file any reply by Jan. 17, 2023 (Oman Fasteners v. United States, CIT # 22-00348).
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The case concerns the sixth administrative review of the antidumping duty order on steel nails from Oman, covering entries in 2020-2021. In the past five reviews, the exporter said it received a 0.56%, zero, zero, zero and 1.65% dumping margin, respectively. Oman Fasteners was a fully cooperating respondent in the review with the only hangup coming from the exporter's supplemental Section C questionnaire responses. After receiving two extensions to file the responses that touched on a wide array of information, the company had until Feb. 14 at 5 p.m. to submit the responses.
Oman Fasteners said in the case's complaint that it began uploading the Section C responses around 4:10 p.m., giving it more than enough time to file everything in the Commerce Department's ACCESS system. The respondent got two rejections from ACCESS, something counsel for the exporter dubbed "surprising" since it pre-screened the submissions using the ACCESS "check file" system. After reorienting the files, Oman Fasteners said it was able to submit most of the responses on time, with one coming 16 minutes late. Commerce used this late filing as grounds to hit the exporter with a total adverse facts available rate of 154.33%.
Oman Fasteners took to the trade court to argue that the rejection of the Section C responses and use of total AFA "was arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence." The company quickly filed a motion for a PI, arguing that it is likely to succeed on the merits and that an injunction is needed so that the company does not go out of business (see 2212270032).
"Oman Fasteners’ single, inadvertent, 16-minute partial filing delay indisputably had no impact on the administrative process," the exporter said. "... Commerce’s decision was unlawful several times over. First, this Court has recently and repeatedly held that, when a party’s submission is filed a few minutes late and causes no prejudice, Commerce 'is not free to apply' its deadline 'in so harsh a way as to produce an unjust and punitive result.' ... Second, Commerce was not permitted to apply an adverse inference because Oman Fasteners did not 'fail to cooperate' under 19 U.S.C. § 1677e(b)(1): 'that standard does not require perfection and recognizes that mistakes sometimes occur.' ... And third, Commerce certainly cannot use such a minor mistake to impose a maximally punitive rate that does not reflect 'the seriousness of [Oman Fasteners’] conduct.'
"Because Commerce’s decision in this case so clearly contradicts the statutory text and applicable precedent, when this Court reaches the merits Oman Fasteners is likely to prevail: the Tariff Act does not permit Commerce to impose a company-killing penalty for a 16-minute partial filing delay."