Commerce Wrongly Rejected 2-Hour-Late Submission in AD Matter, Emirati Exporter Tells CIT

The Commerce Department's decision to reject part of antidumping duty respondent Ajmal Steel Tubes & Pipes' submissions for being nearly two hours late due to COVID-19-related technical difficulties constitutes an abuse of discretion, the respondent said in an April 8 motion for judgment at the Court of International Trade. The motion said the technical difficulties were an "extraordinary circumstance," and acceptance of the late filing would have been inconsequential to Commerce's ability to timely conduct the investigation. The consequences for the rejection of the filing are grossly disproportionate to the error made, it said (Ajmal Steel Tubes & Pipes Ind. v. U.S., CIT #21-00587).

The case concerns the administrative review of the AD order on circular welded carbon steel pipes and tubes from the United Arab Emirates, covering entries in 2018-2019, in which Ajmal was tapped as a mandatory respondent, as it has been every year since the order's inception. The review started March 10, 2020. Twenty days later, the Washington, D.C., mayor issued a stay-at-home order due to the developing coronavirus pandemic, and counsel for Ajmal transitioned to a work-from-home environment.

The review's first major deadline was April 14, 2020, when the exporter had to submit its Section A responses. Due to technical difficulties, the responses came in an hour and 50 minutes late. Ajmal also tried submitting an 11th-hour extension request that was also denied due to the same technical difficulties resulting in its late submission. Commerce refused multiple requests from Ajmal to reconsider the rejection but gave itself lengthy deadlines, up to 120 days, to make submissions in the review, Ajmal said in its complaint at CIT (see 2111220067).

In its motion for judgment, Ajmal argued that technical difficulties stemming from the switch to a work-from-home environment constitute an "extraordinary circumstance" that justifies the late filing. "The disruptions to work structures caused by the pandemic were unexpected and the extent to which once-routine operations were impacted by those disruptions was dramatic and unpredictable," the brief said. "Commerce itself had not yet come to terms with or resolved how best to implement new remote work procedures and deal with all the operational adjustments."

Ajmal said acceptance of the late filing wouldn't have compromised the timely resolution of the antidumping matter, and the rejection of the extension request "led to severe and grossly disproportionate consequences and inaccurate, punitive results." The result of the rejected filing was a 54.27% dumping rate, which Ajmal said was over seven times the highest rate previously afforded to it.

"But for the hour and fifty-minute delay in the Section A response filing, Ajmal has been responsive, unproblematic, timely, and cooperative throughout the entirety of the review," the brief said. "Commerce’s decisions then to reject the extension request and Section A filing and to impose an AFA rate results in only a punitive, aberrational, and uncorroborated margin, contrary to the very purpose of the statute. As such, Commerce acted unreasonably and unlawfully."