Commerce Ignored Record When Finding COVID-19 Didn't Permit Late Filing, AD Respondent Says
The U.S.'s rationale for hitting antidumping respondent Ajmal Steel Tubes & Pipes Ind. with adverse facts available -- that the company did not respond to the best of its ability -- is "conclusory, superficial, and unsupported by record evidence," Ajmal argued in an Aug. 26 reply brief at the Court of International Trade. The Commerce Department ignored the entire record when denying one of Ajmal's questionnaire submissions and its extension request, and then applying AFA, since COVID-19 restrictions created an "extraordinary circumstance," and justified the late filing, the brief said (Ajmal Steel Tubes & Pipes Ind. v. United States, CIT #21-00587).
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The case concerns the administrative review of the AD order on circular welded carbon steel pipes and tubes from the United Arab Emirates, covering entries in 2018-2019, in which Ajmal was tapped as a mandatory respondent, as it has been every year since the order's inception. The review started March 10, 2020. Twenty days later, the Washington, D.C., mayor issued a stay-at-home order due to the developing coronavirus pandemic, and counsel for Ajmal transitioned to a work-from-home environment.
The review's first major deadline was April 14, 2020, when the exporter had to submit its Section A responses. Due to technical difficulties, the responses came in an hour and 50 minutes late. Ajmal also tried submitting an 11th-hour extension request that was also denied due to the same technical difficulties resulting in its late submission. Commerce refused multiple requests from Ajmal to reconsider the rejection. In its motion for judgment, Ajmal argued that technical difficulties stemming from the switch to a work-from-home environment constitute an "extraordinary circumstance" that justifies the late filing (see 2204110035).
The U.S. made a host of responses to this claim, one of which characterized Ajmal's technical difficulties as "mundane." In its reply, Ajmal said that this response is misguided since it does not evaluate the record as a whole and ignores government restrictions. COVID-19 restrictions hampered communications between the plaintiff, its personnel, plaintiff's counsel and plaintiff's counsel's dispersed personnel, frustrating the ability to complete the filing or request an extension, the brief said.
"For these reasons, the impact on the facts set out in the record of COVID-19, the restrictions imposed by municipalities during the early days of the pandemic to combat the virus, and the immediate requirement that employees work from home align with a natural disaster or a force majeure event rather than mere 'inattentiveness' or a lack of Internet access," Ajmal said.
Ajmal further argued that the record supports its finding that the respondent cooperated to the best of its ability. The U.S. is using the finding denying the extension request and refusing to accept the Section A-filing "as the entire and sole rationale for the conclusion that Ajmal did not act to the best of its ability," Ajmal said. However, seeing as this finding was an abuse of discretion, according to the respondent, Commerce cannot legally apply AFA, the brief said.
"None of the alleged examples of inattentiveness, carelessness, or inadequate record keeping cited by Defendant are supported by an examination of the record as a whole in this case," Ajmal argued. "Instead, Commerce, Defendant, and Defendant-Intervenor conflate the test for 'extraordinary circumstances' and 'best efforts.' In neither instance does the record support Commerce’s determinations. As such, this Court should find them to be unsupported by the record and unlawful."