“We attempted to meet the deadline to the best of our ability,” Koenig stated, pushing back against the notion that the company’s actions warranted adverse inferences. He also cited the Federal Circuit’s decision in Oman Fasteners LLC v. U.S., where a penalty for a minor delay was overturned, arguing TKT’s situation was analogous.
Judge Hughes, however, distinguished Oman Fasteners, stating, “In Oman, the delay was minimal. Here, you had multiple extensions and still failed to upload the documents on time.”
Questions Over Commerce’s Approach
Judge Dyk questioned whether Commerce could have applied a less severe penalty, such as a smaller countervailing duty rate, rather than the maximum adverse facts available (AFA) rate. “Isn’t the purpose of AFA to encourage cooperation?” Dyk asked, suggesting that an excessively harsh rate might undermine that goal.
Judge Prost sought middle ground, asking if Commerce could rely on the available facts without imposing adverse inferences. Department of Justice attorney Brendan Jordan responded that Commerce has discretion to deny further extensions when a respondent repeatedly fails to meet deadlines.
