Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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To the extent that Commerce refuses to grant relief under the extraordinary circumstances regulation , as the CIT has found , situations like this constitute an abuse of discretion because Antique Group is being punished for not being aware that it had a 10:00 a . m . ET deadline until after the deadline was missed . 67 In addition , the CAFC has held that respondents should not be required to be perfect , and mistakes do sometimes occur . 68 In Artisan , the CIT noted that accepting a late submission would have been inconsequential to Commerce ’ s ability to conduct the administrative review . There was no statutory deadline at issue , and the submission was only a few hours late ; as such , Commerce could have granted an extension to Antique Group and accepted the submission . In addition , Commerce ’ s determination appears to intend to make an example out of Antique Group by refusing the accept the submission ; this results in punitive treatment that amounts to abuse of Commerce ’ s discretion . The petitioner ’ s assertion that Antique Group already received a second chance on other filings during the review is incorrect , as it relates to the correction of bracketing , a common re-filing , rather than a missed deadline .
DSG et al .’ s Case Brief 69
� Commerce ’ s reliance on a 10:00 a . m . ET deadline was arbitrary and capricious and , because Antique Group filed its submission on the date of the deadline , the deadline cannot be considered missed .
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Commerce treated the two mandatory respondents differently in this case by only setting a deadline of 10:00 a . m . ET for Antique Group , while consistently setting deadlines of 5:00 p . m . ET for PESL . As a result , Commerce has not uniformly administered its rules , as the CIT has stated is required in SunEdison and Anderson . 70
� Section 351.303 ( b ) of Commerce ’ s regulations establishes a default deadline of 5:00 p . m . ET , noting that a “… document must be received successfully in its entirety … by 5 p . m . Eastern Time on the due date .” As such , a deadline of 10:00 a . m . ET is contrary to the agency ’ s regulations and also resulted in Antique Group being treated differently from PESL . Moreover , Commerce has never justified the reason for providing a 10:00 a . m . ET deadline , and thus , without justification for straying from the default deadline time , the result is arbitrary and capricious treatment of Antique Group .
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Commerce ’ s regulations permit parties to submit final proprietary and public versions of a submission until close of business of the next business day after the submission of the initial proprietary version is due . Antique Group did not avail itself of the “ bracketing not final ” submission option , and thus , even though its submissions were filed after the 10:00 a . m . ET deadline , they were still filed one day before they could have been due . As a result , Commerce received usable submissions 24 hours before the theoretical deadline for receiving them . As a
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Id . at 10-11 ( citing Pro-Team Coil I , 419 F . Supp . 3d 1319 ( quoting NTN Bearing Corp . v . United States , 74 F . 3d 1204 , 1207 ( Fed . Cir . 1995 ) ( NTN Bearing )); Artisan Manufacturing Corp . v . United States , 978 F . Supp . 2d 1334 ( CIT 2014 ) ( Artisan ); and Celik Halat ve Tel Sanayi A . S . v . United States , 557 F . Supp . 3d 1348 , 1361 ( CIT 2022 ) ( Celik Halat I )).
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Id . at 11-12 ( citing Nippon Steel , 337 F . 3d at 1382 ).
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See DSG et al .’ s Case Brief at 5-14 and 52 .
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Id . at 6-7 ( citing SunEdison , Inc . v United States , 179 F . Supp . 3d 1309 , 1317 ( CIT 2016 ); and Anderson v . U . S . Sec ’ y of Agriculture , 462 F . Supp . 2d 1333 , 1339 ( CIT 2006 )).
13 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved