United States Court of International Trade

Slip Op. 22-12

Before the Court in Celik Halat ve Tel Sanayi A.S. v. United States, et. al., Court No. 21-00045, Slip Op. 22-12 (February 15, 2022) was Plaintiff’s challenge to a final determination that Commerce issued in an antidumping duty investigation of certain prestresses concrete steel wire strand from Turkey, and the associated antidumping duty order. Id. at 2. Celik Halat claimed that Commerce abused its discretion in rejecting its responses to Sections B and C of the Initial Questionnaire and acted contrary to law in resorting, on that basis, to its “facts otherwise available” authority under 19 U.S.C. § 1677e(a) and its “adverse inference” authority under section 19 U.S.C. § 1677e(b). Id. at 10. Plaintiff argued that “the Department’s imposition of a bright-line rule rejecting its Section B and C Initial Questionnaire response and its application of 19 U.S.C. § 1677e constituted an abuse of discretion.” Id. at 20. Defendant and defendant-intervenors contended that “the Department’s rejection of the untimely submission was not an abuse of discretion.” Id. at 21. Defendant argued that “Commerce has broad discretion to establish its own rules governing administrative procedures, including the establishment and enforcement of time limits.” Id. at 21. For the following reasons, the court set aside the contested determination as an abuse of agency discretion and remanded the decision to Commerce for immediate corrective action. Id. at 2.

In reviewing a final determination, the court “shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Id. at 9. Decisions that an agency makes in the enforcement and administration of its regulatory requirements that call for an exercise of discretion are examined according to an abuse of discretion standard. See, e.g., Brennan v. Dep’t of Health & Human Servs., 787 F.2d 1559, 1564 (Fed. Cir.), cert. denied, 479 U.S. 985 (1986). Id. at 9. “An agency abuses its discretion where, inter alia, ‘the decision . . . represents an unreasonable judgment in weighing relevant factors.’” Brenner v. Dep’t. of Veteran Affairs, 990 F.3d 1313, 1324 (Fed. Cir. 2021) (quoting Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir. 2005)). In this case, the court agreed with Plaintiff that the Department’s imposition of a bright-line rule rejecting its Section B and C Initial Questionnaire response and its application of 19 U.S.C. § 1677e constituted an abuse of discretion. Id. at 20. “Commerce has broad discretion in establishing its own rules governing the administrative procedure, but in applying those rules to an individual circumstance, Commerce lacked the discretion to impose a draconian and punitive sanction in the circumstance presented.” Id. at 21. The court noted “that Celik Halat made repeated, timely extension requests for its Section B and C Initial Questionnaire responses and that Commerce was somewhat parsimonious in granting those requests.” Id. at 24. The court rejected the Department’s rationale that Celik Halat’s representative should have made a timely extension request on the filing date or should have submitted an “untimely” extension request at the earliest opportunity.” Id. at 26. Here, the Preamble to the 2013 regulatory amendment states that “[f]or submissions that are due at 5:00 p.m., 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.” Preamble, 78 Fed. Reg. at 57,792 (citing 19 C.F.R. § 351.103(b), which sets forth general information, including office hours, but does not address the time at which submissions are due). However, the court noted that “Commerce made no mention of this Preamble language in its Final Issues and Decision Memorandum, and none of the parties identified it in briefing in this case.” Id. at 28. The court explained that the “8:30 a.m.” regulatory provision hidden in the Preamble indicated that “in this situation, Commerce made far too much of the filing of an exhibit that occurred 21 minutes after the 5:00 p.m. deadline but more than 15 hours before 8:30 a.m. on the next business day.” Id. at 29. “Commerce imposed a grossly disproportionate penalty for what essentially was a minor technical violation that had no discernible effect on the investigation.” Id. at 29. “The facts and circumstances considered on the whole demonstrate that Commerce abused its discretion to impose a draconian penalty upon plaintiff for a minor and inadvertent technical error by its counsel that had no appreciable effect on the antidumping duty investigation.” Id. at 31-32. As such, the court granted plaintiff’s motion for judgment on the agency record. Id. at 32.