Commerce's Denial of Minutes-Late AD/CVD Submissions Is Abuse of Agency Discretion, CIT Says
The Commerce Department abused its discretion by rejecting filings in antidumping duty and countervailing duty investigations that were submitted 21 and 87 minutes late, respectively, the Court of International Trade said in a pair of Feb. 15 decisions. Commerce's denials of the questionnaire responses from a Turkish exporter amounted to a "draconian penalty" on the AD/CVD respondent for an "inadvertent technical error by its counsel that had no appreciable effect" on the investigations, the court said. The result was a 53.65% dumping rate and 158.44% countervailing duty rate for the exporter.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
"Not every failure to comply with a filing deadline will result in authority to use an adverse inference against an interested party," Judge Timothy Stanceu said. "In applying that rule and related regulations on the filing of, and rejection of, responses to requested information, Commerce must be mindful of the limitations on the exercise of its statutory and regulatory powers."
The cases were brought by Turkish steel exporter Celik Halat ve Tel Sanayi and contest Commerce's AD/CVD investigations into prestressed concrete steel wire strand from Turkey. Celik served as a mandatory respondent in both proceedings.
One of the filing deadlines in the CVD case was originally set for Aug. 3, 2020. Celik requested an extension until Aug. 17, 2020, due to a confluence of factors. The exporter said that COVID-19, closed offices, no robust work-from-home infrastructure and a Turkish holiday that ran until Aug. 4, 2020, necessitated the extension. Commerce gave the exporter until Aug. 7 to submit one of its questionnaire responses, saying that "statutory deadlines" had to be met. The exporter met that deadline, sending Commerce its business proprietary version of the document.
Due to Commerce's one-day lag rule, Celik had until Aug. 10 at 5 p.m. EDT to submit the bracketed, public version of the submission. It was this filing that was completed 87 minutes late. Prior to this, Celik requested another extension because its finance manager suffered a minor traffic accident and its counsel had knee surgery. Commerce refused to grant this extension, saying that the circumstances were not extraordinary as laid out in the agency's regulations.
"This technical violation could not conceivably have impeded the investigation," Stanceu said. "Nothing prevented Commerce from beginning to use the information contained in the August 7, 2020 version of Celik Halat’s Initial Questionnaire response (which could not permissibly be modified by the later submission), even had Commerce chosen to do so between 5:00 p.m. ET and 6:27 p.m. ET on the evening of Monday, August 10, 2020." The only information missing was the knowledge of what was bracketed, the court pointed out.
The antidumping case is similar. In that instance, Commerce set a July 27 deadline for certain questionnaire submissions to which Celik requested an extension under the same premises as the CVD case. The agency gave the exporter until Aug. 10, saying it wouldn't grant any further extensions. During litigation, however, Commerce said that Celik should have made another extension request if it knew it would have filing difficulties. Stanceu blasted the agency's "intimidating language" in its statement that no further extensions would be entertained. Stanceu again found an abuse of discretion for Commerce's rejection of the 21-minute-late submission, finding that it was a minor technical incident with "no appreciable effect" on the AD case.
(Celik Halat ve Tel Sanayi v. United States; Slip Op. 22-12, 22-13; CIT #21-00045 #21-00050; dated 02/15/22; Judge Timothy Stanceu. Attorneys: Irene Chen of Chen Law Group for plaintiff Celik; Miles Karson for defendant U.S. government; Kathleen Cannon of Kelley Drye for defendant-intervenors)