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Judge Questions Government on Commerce's Strict Deadline Policy in AFA Case

Judge Mark Barnett of the Court of International Trade indicated in March 19 oral arguments that he is leaning toward remanding a case about the application of an adverse facts available rate to an exporter that missed an unusual 10 a.m. filing deadline by five hours (Cambria Co. v. U.S., CIT # 23-00007).

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The primary question he raised regarding the issue was whether he should remand to let the Commerce Department try to justify its departure from its usual 5 p.m. deadline or to simply order the department to take the late filing. He said Commerce had not placed any evidence on the record that it had a real need to receive exporter Antique Group’s second questionnaire response at 10 a.m. rather than 5 p.m. -- other than the fact that the deadline was on a Monday. The government argued that Commerce may have been looking to start its work week with Antique Group’s submission.

If remanded, DOJ said, the department would like to revisit its determination under DHS v. Regents of the Univ. of California, which gives it two options: It would have to either explain its original decision in greater detail or take new agency action.

But Barnett said that for Regents to apply, Commerce would have to have some “hook” so that it could say, “OK, we’re taking a reason that existed at the time that we made the determination, and we’re providing a better explanation of it.”

“I don’t see anything on this record,” he said. “In fact, you told me there isn’t anything reflected on this record that explains why 10 o’clock versus five o’clock. So how does Regents suggest that I gotta give you something?”

The March 19 oral arguments concerned an ongoing case over the 2019-2021 antidumping duty review on Indian quartz countertops. Antique Group, a mandatory respondent, received a 151.56% dumping margin calculation at the end of it after the exporter missed a 10 a.m. deadline, thinking it had until 5 p.m. that day as was usual practice.

Domestic petitioner Cambria became involved in the proceedings when it also sued the government over the review. It objects to the 3.19% margin Commerce reached for nonselected respondents after the department decided averaging Antique Group’s rate with the de minimis rate received by the other selected respondent would have an unfair result.

Barnett first questioned DOJ, asking attorneys why Commerce hadn’t justified its departure from its 5 p.m. deadline, established via prior practice.

“Are you suggesting that Commerce has the ability to ignore its regulations anytime it wants to without justification?” he asked. “I mean, why isn't this like every other regulation? If Commerce wants to depart from the standard it sets in the regulation, it needs to justify that departure on the record."

DOJ said Commerce doesn't have to provide a rationale. The 10 a.m. deadline was established by the department when it granted an extension request, and extension requests don’t have specific deadlines set by statute, it said.

It said this is implied by the preamble to the extension regulations, which states that manual filings that receive extensions must be submitted by 5 p.m., and electronic filings don't have that limitation, because 5 p.m. is when Commerce closes.

Barnett asked what time a deadline would be set if an extension request was granted but only a submission date was named. "Is it now midnight?” he said. DOJ said a 5 p.m. deadline most likely would be assumed.

The judge asked about how the government defines “extraordinary circumstances.” Commerce didn't find Antique Group’s calendaring error to be the result of extraordinary circumstances; if it had, regulations would have required the exporter’s late filing to be accepted.

He also asked whether the calendaring error would meet the “excusable neglect” standard, and DOJ said it would defer to the court on that.

DOJ said the relevant regulatory preamble provides “clear examples Commerce has qualified as extraordinary circumstances.”

“So are you telling me now … that an honest mistake, a miscalendaring mistake, where the deadline is plainly stated in the questionnaire will never constitute extraordinary circumstances?” Barnett asked.

DOJ affirmed that that is the government’s position.

The parties discussed a 2023 case in which Commerce granted a deadline extension for good cause because the documentation in question was late, but the department “really wanted to look at” it.

“If you haven't gathered, I mean, this doesn't look good for the agency in the grand scheme of things,” Barnett said. “I'm not looking at this as a results-driven thing. I'm trying to put things into the context of ‘honest people make honest mistakes.'" He added that the agency "has to look at that and accept the fact that people are human, and they have to evaluate them on the facts.”