Commerce Official Emphasizes Counsel's Role in Ensuring Filing Deadlines Are Met
Should the Commerce Department's ACCESS system go down while counsel is attempting to submit documents in a proceeding with the agency, the attorney should document everything to avoid consequences for missed deadlines, said Evangeline Keenan, director of the APO/dockets unit at Commerce, during panel discussion June 14 at the Georgetown Law International Trade Update conference. Speaking on the limits of the ACCESS platform, Keenan said that the agency "will take responsibility if ACCESS is causing problems," while noting that if the issue resides with the attorney's or paralegal's own internet access, then it's their responsibility.
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Aside from ACCESS difficulties, Keenan, along with the International Trade Commission's Jane Dempsey, addressed various hypotheticals attorneys may face when encountering filing difficulties. Regardless of the scenario, both Keenan and Dempsey, along with Court of International Trade Judge Leo Gordon, said lawyers should file an extension request as soon as possible when an issue arises, call a Commerce analyst if that request is not immediately answered, implement good practices in preparing for difficulties and prepare to file earlier than the usual 5 p.m. deadline.
"At the end of the day, the critical thing to understand is that if you have some form of supervisory responsibility, then your way out of the problem when the regulatory authority or the malpractice attorneys are going to be looking at it is, did you act reasonably? That's the test," Gordon said. "And so the inquiry is going to be, OK, what was the training? What were the processes and procedures you had in place? Did you do tabletop exercises? What did you do to mitigate the circumstances? And it's all going to revolve around reasonableness."
Commerce's practice regarding missed filing deadlines is a strict one, with the agency routinely opting to use total adverse facts available should a respondent in an antidumping or countervailing duty proceeding miss a deadline, even by a few minutes (see 2303300009). The results of this practice have led to frustration from the trade bar, especially for respondents.
That frustration was embodied at the event by Jeffrey Grimson, partner at Grimson Mowry, who, as a member of the audience, asked about the agency's practice of automatically granting an extension until 8:30 a.m. the next business day should the agency not respond to a last-minute extension request. Grimson asked if the automatic extension is granted every time. Keenan responded by clarifying that this extension is only granted should Commerce not respond, adding that if a negative response is issued at 4:59 p.m., then the filing is late as of 5:01 p.m.
Grimson expressed his concern over what the agency considers to be an extraordinary circumstance warranting the grant of a large filing extension, which Keenan reiterated during the event included war or riots. The Grimson Mowry partner said that every single Commerce proceeding is extraordinarily complicated for the purposes of agency delays, yet for respondents, the "extraordinary reasons for an extension have to be war, famine and riot." He added that if there is a plea at 4 p.m. in cases of "real technological" difficulties, then "those extensions should be granted until 9 a.m. the next morning ,or something like that, because otherwise this becomes a complete gotcha kind of practice of law, and it's stressful."
Nancy Noonan, partner at ArentFox Schiff and member of the panel, encouraged petitioners to have some humanity in not rushing to argue for total AFA should a filing issue arise.
Throughout the event, Keenan urged private firms to ensure that at the very least a member of the staff is able to make the upload, should a technical or even personal medical issue arise. Noonan presented the panel with a hypothetical situation where it is 4 p.m., the filing is due in an hour, and the lead attorney has a medical emergency. Keenan said that the "extraordinary circumstances" part of its regulations could cover this situation, though she noted that this situation would fall in more of a gray area.
"If you want to say, 'medical emergency,' and tuck it into that rule, it might help you, but you still have a whole hour, you still have your whole staff of backup paralegals who could do that for you," Keenan said. "I can't tell you what would happen in that case, and the way things work at Commerce, we want you to give us as much information as you can and tell us why good cause exists. Because it's not five o'clock yet, you have to really determine if you can get the filing in and can you get an extension request filed. I'm not really sure extraordinary circumstances would help you. Extraordinary circumstances come in when you need to explain why you didn't file an extension request by the deadline. You still have an hour."