Trade Court Upholds Commerce's Move to Accept Minutes-Late Submissions in AD/CVD Cases

The Court of International Trade sustained the Commerce Department's remand results in an antidumping case and a countervailing duty case both brought by exporter Celik Halat after the agency accepted submissions made just minutes late. Judge Timothy Stanceu upheld the agency's remand findings after Commerce accepted the submissions it initially rejected for being late -- a move dubbed a "draconian penalty" by Stanceu.

The cases were brought by Celik Halat to contest Commerce's AD/CVD investigations on prestressed concrete steel wire strand from Turkey. Celik served as a mandatory respondent in both proceedings. In the AD investigation, Celik submitted its sections B and C responses 21 minutes late, while in the CVD investigation, the exporter submitted its Section III response 87 minutes late. The agency rejected the submissions for being untimely filed, then applied adverse facts available for the lack of information.

Prior to the late submission in the CVD case, the company said COVID-19, closed offices, no robust work-from-home infrastructure and a Turkish holiday necessitated a requested filing extension. Commerce granted that request. The respondent then submitted its business proprietary version of the document on time. Then, due to Commerce's one-day lag rule, Celik Halat had more time to submit the bracketed, public version of the filing. It was this filing that was completed 87 minutes late. Prior to this, Celik requested another extension because its finance manager was in a minor traffic accident and its counsel had knee surgery. Commerce refused to grant this extension, saying that the circumstances weren't extraordinary as laid out in the agency's regulations.

The trade court found this refusal to be an abuse of discretion, characterizing the move as a "draconian penalty" on Celik Halat for an inadvertent error (see 2202160021). On remand, Commerce dropped its use of AFA for the questionnaire response but continued to hold AFA for other elements of the respondent's submissions, including the agency's finding that Celik received a countervailable benefit under the Turkish Government's General Investment Incentive Scheme (GIIS) Customs Duty Exemption program.

While Celik took issue with this on remand, it submitted no comments to the court and thus "raised no objection." As a result, Stanceu sustained the remand in the CVD case. The AD case was no different, with Celik failing to submit comments on the remand, despite comments on the draft remand contesting the agency's adjustments to the exporter's general and administrative expenses. Since there was no objection, the court upheld the remand results.

(Celik Halat ve Tel Sanayi v. United States, Slip Op. 22-54, 22-55, CIT #21-00045, #21-00050, dated 05/26/22, Judge Timothy Stanceu. Attorneys: Irene Huei-min Chen of Chen Law Group for plaintiff Celik; Miles Karson for defendant U.S. government; Kathleen Cannon of Kelley Drye for defendant-intervenors Insteel Wire Products Co., Sumiden Wire Products Corp. and Wire Mesh Corp.)