CAFC Judges Chide Petitioner for Missing Deadline, Question Severity of AFA Rate

Commerce used the AFA rate on Oman Fasteners after it missed a filing deadline by 16 minutes in an AD review. The Court of International Trade imposed an injunction on Commerce's AD cash deposits on the company's steel nail imports, finding the rate to be an abuse of discretion (see 2302280040).

Moore said that, while she was "sympathetic" that the company missed the deadline by 16 minutes, she questioned why the exporter didn't bring the issue to Commerce's attention for five weeks. The judge noted a policy the agency had, through which parties can get an automatic extension to the start of the next business day when they alert the agency to filing difficulties and the agency doesn't respond before the end of the day. "Why did you sit back and pretend you weren't late and wait to get your hand caught in the cookie jar," the judge asked.

In response, Huston said the bar didn't know about the policy at that time and that the data submitted was merely backup files to information already submitted. The attorney also said that if given the chance over again, his team obviously would have called Commerce and said there was a filing problem.

Moore said she wasn't "buying that part." There was no problem with ACCESS, Commerce's filing portal, the judge noted, chastising Huston for waiting "until the last minute," then burying his "head in the sand." Huston replied by noting problems with ACCESS' check-file feature, which signals that a file is fine to upload, though the file will often then have difficulties when actually being submitted. The attorney added that he never imagined Commerce's response would be a "draconian punishment" for a 16-minute delay.

The judge expressed her incredulity at this defense, saying it's not an answer to just claim that the attorney didn't know how bad the penalty would be. Moore said the claim doesn't assuage her concern that Huston has an "obligation to be on the up and up at all times and not try to slide something by hoping it doesn't get caught." She said Huston needs to "own" the mistake, jibing that she's "momming" the attorney.

Moore also expressed incredulity at the size of the AFA rate, pressing Adam Gordon, counsel for Mid Continent, on this point. While she said there's "no doubt" Commerce had the authority to use AFA, she likened the 154.33% rate to chopping her son's leg off for missing curfew by 15 minutes. "That doesn't feel like the appropriate motherly response," the judge chided, acknowledging that while Commerce doens't have to be the mother in this situation, the high rate is a "wow factor."

Gordon said Commerce didn't have any other option, since the other rates in the review and original investigation were very low and not sufficiently adverse to induce cooperation. Moore responded that Oman Fasteners did cooperate, noting that they were just 16 minutes late. "This isn't one of those parties that was trying to hide their data," the judge noted.

Mid Continent's attorney also contested many of Huston's claims, arguing that the files at issue weren't merely backups of already-submitted data but included the company's revised U.S. sales database, which is one of the documents that goes to the "heart of Commerce's dumping analysis." Gordon added that Commerce's policy regarding last-minute extensions wasn't "buried," but was in fact published in the Federal Register in 2013 and central to "well-known caselaw" on the issue.

Another central point disputed by the parties was whether Mid Continent has standing to bring the appeal, since the company is contesting the court's preliminary injunction on the collection of AD cash deposits. The trade court combined the motion for a preliminary injunction with a motion for judgment. Huston argued that the petitioner doesn't have standing to challenge the injunction since it hasn't suffered injury in fact, noting that Mid Continent has to wait until the case is fully finished at the trial court before approaching the CAFC.

Moore and Judge Richard Taranto pressed Gordon on the question of standing, with Moore asserting that the trade court's decision "wasn't directly adverse" to the petitioner. Moore said her concern is that Mid Continent's claim, which would establish injury in fact due to the "distortions to the marketplace" resulting from the injunction, would open a "ginormous standing loophole for anyone that can" establish that they are a competitor to any party subject to adverse government action.

Taranto questioned whether Mid Continent was the "right party" to bring the appeal, probing whether the petitioner has a legally protected interest in the injunction on Oman Fasteners.