Exporter Received Multiple Extensions, Warnings Before Missing Filing Deadline, US Says

The U.S. objected to a Vietnamese pipe exporter's argument that the Commerce Department had arbitrarily rejected its questionnaire response for a barely missed deadline, saying the exporter had been given four deadline extensions and was repeatedly told by Commerce officials to file early (Hoa Phat Steel Pipe Co. v. U.S., CIT Consol. # 23-00248).

Exporter Hoa Phat brought suit in 2023 arguing that Commerce’s “one day lag rule” should have applied in its case. In its April motion for judgment (see 2404260060), it said respondents that seek extensions for a deadline later that day -- but that don’t hear back from Commerce by that deadline -- are still considered to have timely filed it they submit their documentation by 8:30 a.m. on the following business day.

Hoa Phat’s deadline was set for Oct. 7, 2022, a Friday, and it asked Commerce to push back its deadline until 10 a.m. the following business day, a Tuesday. Commerce gave Hoa Phat until midnight, but Hoa Phat wasn’t able to meet this deadline. At around 11:46 p.m., it sought another extension without specifying an exact time, but Commerce didn’t respond.

The exporter argued that it had filed timely under the one-day lag rule because Commerce hadn’t responded to the extension request it submitted at 11:46 p.m. on Oct. 7. All of its responses were in by the following business day, and department officials wouldn’t have looked at the submissions at any point before that time, they pointed out.

Commerce acted reasonably and within the scope of its regulations when it chose to reject Hoa Phat’s submissions and substitute an adverse inference, the government said. The department was also within its rights to subsequently find the exporter to be ineligible for Commerce’s certification regime.

First, the one-day lag rule only applies to 5 p.m. deadlines, the U.S. said. It said Commerce had responded to Hoa Phat’s Oct. 7 extension request when it spoke to the respondent's counsel on the phone earlier that day, resulting in the midnight deadline.

And the department allowed Hoa Phat multiple extensions, “including granting two extension requests in full,” it said. It said a Commerce official spoke to Hoa Phat’s counsel on Oct. 5 and warned them to begin filing early. Despite this, and despite the respondent’s claim that it was delayed by technical difficulties, Hoa Phat only actually started filing “minutes before the extended deadline,” it said. The investigation’s other respondent, who faced the same number of questions, met the original 5 p.m. deadline, it said.

The U.S. also pointed out that Commerce’s filing instructions clearly indicated “bulky” documents, including documents more than 500 pages long, could be filed manually, although that required contacting the department at least 72 hours in advance.

“Commerce therefore did not abuse its discretion in rejecting the untimely submission,” it said.

The government added that, despite Hoa Phat’s claim, Commerce’s choice to later extend its own deadline for issuing its final determination was a “separate” decision “following Commerce’s evaluation of the other voluminous submissions that parties had timely submitted on the record and the evaluation of multiple party administrative briefs.”

And adverse facts available were warranted in Hoa Phat’s case; requiring otherwise “would lead to absurd results where Commerce would be unable to enforce its own deadlines,” the government said.

The cases cited by the exporter were all distinct because none dealt with a respondent who had already received multiple deadline extensions, it said.