CIT Sends Back Commerce's Rejection of Late-Filed AD Submission Over Agency's Hypocrisy

The Commerce Department abused its discretion by denying respondent Ajmal Steel Tubes & Pipes' late-filed submission in an antidumping duty review while giving itself a far greater delay, the Court of International Trade ruled in an Oct. 28 opinion. Ajmal claimed that COVID-19-related difficulties caused the less-than-two-hour delay. While Judge Jane Restani ruled that it could be considered reasonable for Commerce to have rejected the filing on these grounds, the judge said that the agency abused its discretion by ignoring its own actions, which caused a far more considerable delay in the proceeding.

"The court is a court of equity, as well as law, yet Commerce asks the court to allow it to enforce its deadlines in the strictest way possible with a seeming disregard for Commerce’s own actions," the judge said in the decision. "Commerce must consider the serious consequences it rests upon parties in the light of the allowances it gives itself. Here no prejudice to any party could result because Commerce’s tolling completely prevented it."

The case concerns an administrative review of the AD order on circular welded carbon steel pipes and tubes from the United Arab Emirates, covering entries in 2018-2019. 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 -- Barnes Richardson -- 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 of time (EOT) request that was also denied due to the same technical difficulties resulting in its late submission. The respondent said its counsel did not get the filing information from Ajmal's UAE office until 9 a.m. on April 14, 2020, and that the duty was put in the hands of one paralegal and an unbarred associate. During preparation of the filing, the paralegal's laptop failed to split the filing as required, leading to the untimely filing of the extension request given that the laptop was already overwhelmed with the first task.

Commerce refused multiple requests from Ajmal to reconsider the rejection, resulting in a 54.27% adverse facts available rate. 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 (see 2204110035). Commerce disagreed and rejected this claim, with the judge taking the government's side. Restani said that these circumstances "likely should not have prevented [Ajmal] from filing a timely EOT" seeing as Barnes Richardson could have filed the extension request before it received the necessary information the day before the deadline or used a different laptop.

"But the story doesn't end there," the judge said. Restani turned a critical eye to Commerce's moves tolling deadlines in the case. In two separate instances, the agency halted all filing deadlines in the review -- one for 50 days and one for 60 days -- citing "operational adjustments due to COVID-19" and "unprecedented workloads," thereby recognizing COVID-19 operational adjustments as extraordinary circumstances. The judge pointed out that the total delay caused by Ajmal amounted to less than two hours, while Commerce's total delay "consisted of 50 days or 1,200 hours," in addition to another 60 days.

"It was an abuse of discretion for Commerce, on May 7, 2020, with both delays before it, to reason that filing issues due to COVID-19 are so different from operational adjustments due to COVID-19 that they do not constitute sufficient extraordinary circumstances to permit a slightly late filing here to avoid serious consequences," the opinion said. "At this point, Commerce should have reconsidered Ajmal’s EOT with the new circumstances in mind."

Commerce tried to distinguish its delays from Ajmal's by saying its delay was due to "operational adjustments," but the judge said that this "difference is one without meaning" since COVID-19 was the reason for the operational adjustments. Restani sent the case back to Commerce "to accept and consider Ajmal's Section A filing and complete the review."

(Ajmal Steel Tubes & Pipes Industries v. United States, Slip Op. 22-121, CIT #21-00587, dated 10/28/22, Judge Jane Restani. Attorneys: David Forgue of Barnes Richardson for plaintiff Ajmal; Kelly Geddes for defendant U.S. government; Luke Meisner for defendant-intervenor Wheatland Tube Co.)