Commerce Abused Discretion by Denying Filing Submitted Before Next Business Day, CIT Says
Court of International Trade Judge Timothy Reif said in a Jan. 27 opinion that the Commerce Department had abused its discretion by denying steel exporter Hoa Phat Steel Pipe Co.’s submission after it was late, but still filed before the opening of the following business day.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Reif noted that Hoa Phat’s counsel had, after experiencing technical difficulties, followed the department’s regulation by filing a timely extension request a few minutes prior to its 5 p.m. deadline. Because Commerce didn’t respond, under departmental guidelines, the exporter then automatically had until the opening of the next business day to file. Just because the exporter had previously filed a request earlier in the day didn’t mean they were foreclosed from doing so again; new technical issues could, and did, still crop up, Reif said.
He also pointed out that Commerce had extended its own deadline twice, in line with statute but in violation of its own regulations.
On the other hand, the department had refused to grant an extension request with citation to “statutory deadlines,” Reif noted -- but the statute “does not impose on Commerce in a circumvention inquiry a hard deadline to issue the final determination.”
Reif also said that the move was an abuse of discretion because the department hadn’t shown that the delay had impacted its own timeline in any way, considering the filing was still in by the opening of the next business day.
Finally, he said, the department’s decision had “far-reaching consequences,” which was “an additional consideration” in making a determination about whether there had been an abuse of discretion. All of the other Vietnamese steel exporters involved in the separate rate review in question, selected or not, received a separate rate, he said. As a result of adverse facts available, Hoa Phat didn’t.
“Commerce’s decision to exclude plaintiff from the certification process can fairly be described as ‘particularly severe,’” he said.
He distinguished several of the other cases the department cited from the present circumstances, describing all as more extreme. In one, a plaintiff had failed to provide adequate information, requiring supplemental questionnaires, eight times. In another, an extension request itself was filed 10 days late.
In this case, the plaintiff’s counsel was “diligent” in communicating with Commerce throughout its struggles, Reif said.
A better comparison case was Artisan Manufacturing, he said -- another case in which the court had remanded a Commerce Department determination after the department assigned AFA for a missed deadline without consequences.
(Hoa Phat Steel Pipe Co. v. United States, Slip Op. 25-11, CIT # 23-00248, dated 1/27/2025; Judge: Timothy Reif; Attorneys: Daniel Porter of Curtis, Mallet-Prevost for plaintiff Hoa Phat Steel Pipe Co.; Kristin Olson for defendant U.S. government; Jeffrey Gerrish of Schagrin Associates for defendant-intervenors led by Atlas Tube; Alan Price of Wiley Rein for defendant-intervenor Nucor Tubular Products)