Vietnamese Pipe Exporter Says It Had Very Little Time to File Prior to Missed Deadline

A Vietnamese exporter of light-walled rectangular pipe and tube pushed back against the U.S. claim that the Commerce Department’s rejection of a questionnaire that missed a deadline by a few hours, and its subsequent use of adverse facts available for the exporter, had been warranted and wasn't an abuse of discretion (Hoa Phat Steel Pipe Co. v. U.S., CIT Consol. # 23-00248).

Exporter Hoa Phat brought its 2023 case arguing that its questionnaire response, filed one day late, still should have been accepted under Commerce’s “one day lag rule’ -- by which parties that seek extension requests for a deadline later that same day and don’t hear back are still considered to have timely filed if they file by 8:30 a.m. the following business day.

Hoa Phat said in a motion for judgment submitted in April (see 2404260060) that it had sought an extension request on the day of its deadline, Friday, Oct. 7, 2022, at 11:46 p.m., 14 minutes before a deadline that the department had given it after it sought an initial extension earlier that day to 10 a.m. the next business day, a Tuesday.

In response (see 2407240015), the U.S. said that Hoa Phat had already received an extension on the day of its deadline -- the extension to midnight. It said the exporter already had received four deadline extensions and repeatedly had been told by Commerce officials to file early.

But just because it had received those extensions didn’t mean it had “ample time,” the exporter said. It said its counsel had been given less than a month to “become familiar with Hoa Phat’s situation, gather and organize the required factual information, and prepare the responses to the initial questionnaire in all three separate circumvention inquiries.” Prior to that, on a pro se basis, Hoa Phat had request a six-week extension for its initial questionnaire and received only a single week.

The second extension request Hoa Phat sought, on Oct. 5, was denied outright, the exporter said.

“Then, when Hoa Phat’s counsel went back to Commerce explaining in detail the technical difficulties and requesting only to extend the deadline to 10am on the following businessday, Commerce still refused to provide a minimal extension, only granting until midnight,” it said.

The U.S. also argued that the one-day lag rule also only applies to 5 p.m. deadlines, but this wasn’t true, the exporter said.

It acknowledged that the preamble to Commerce’s final rule regarding extension requests states that “if the Department is not able to notify the party requesting the extension of the disposition of the request by 5:00 p.m., then the submission would be due by the opening of business (8:30 a.m.) on the next work day.”

However, it said, the government’s focus on this statement ignores the preceding paragraph, which explains that deadlines are set at 5.p.m by default but can be extended to other times.

It also ignores the procedure described in the “plain language instructions to the questionnaire, which provided for this exact scenario, Hoa Phat said.

“Scenario 2: I experienced difficulties yet was able to file an extension request right before the deadline. However, it is now after 5:00 pm on the due date, and I still haven’t received a response,” Hoa Phat said, citing the instructions. “If you could not meet the deadline because of ACCESS filing difficulties or other technical issues, you automatically get until 8:30 am the next business day to file your submission.”

This is what happened to Hoa Phat, the exporter said; as a result, it should have received until 8:30 a.m. on the following business day to file.