Grupo Simec S.A.B. de C.V. v. United States , 2024 CIT 52 ( 2024 )

Slip Op. No. 24-52
UNITED STATES COURT OF INTERNATIONAL TRADE
GRUPO ACERERO S.A. de C.V.,
GRUPO SIMEC S.A.B. de C.V., et al.,
Plaintiffs,
and
GERDAU CORSA, S.A.P.I de C.V.,
Before: Stephen Alexander Vaden,
Plaintiff-Intervenor,
Judge
v.
Consol. Court No. 1:22-cv-00202 (SAV)
UNITED STATES,
Defendant,
and
REBAR TRADE ACTION COALITION,
Defendant-Intervenor.
OPINION
[Remanding the Final Results to Commerce for further proceedings consistent with
this opinion.]
Dated: April 25, 2024
James L. Rogers, Jr., Nelson, Mullins, Riley & Scarborough LLP, of Greenville, SC,
for Plaintiff Grupo Simec S.A.B. de C.V., et al.
Irene H. Chen, VCL Law LLP, of Vienna, VA, for Consolidated Plaintiff Grupo Acerero
S.A. de C.V. With her on the briefs was Mark B. Lehnardt, Law Offices of David L.
Simon, PLLC, of Washington, DC.
Consol. Court No. 1:22-cv-00202-SAV Page 2
Craig A. Lewis, Hogan Lovells US LLP, of Washington, DC, for Plaintiff-Intervenor
Gerdau Corsa, S.A.P.I de C.V. With him on the briefs were Jonathan T. Stoel and
Nicholas R. Sparks.
Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendant United States. With
her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney
General, Patricia M. McCarthy, Director, Commercial Litigation Branch, L. Misha
Preheim, Assistant Director, Commercial Litigation Branch, and Ian A. McInerney,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce.
Maureen E. Thorson, Wiley Rein LLP, of Washington, DC, for Defendant-Intervenor
Rebar Trade Action Coalition. With her on the brief were Alan H. Price, John R.
Shane, Jeffrey O. Frank, and Paul J. Coyle.
Vaden, Judge: This case concerns an antidumping review conducted under
the shadow of the 2019 novel coronavirus pandemic — a review during which three
of Plaintiff Simec’s employees died and a fourth was hospitalized and intubated.1
Simec sought a deadline extension to submit information related to its downstream
sales as part of a supplemental questionnaire. The United States Department of
Commerce (Commerce) denied the request, stating that “none of the reasons for
extension requests … were novel.” IDM at 10, J.A. at 7,722, ECF No. 68 (emphasis
added). The resulting missing information led Commerce to draw an adverse
1
The opinion refers to the Plaintiff singularly because Commerce treats the various affiliates
as one entity for purposes of its review. Issues and Decisions Memorandum accompanying
the Final Results (IDM) at 1 n.2, J.A. at 7,713, ECF No. 68. Simec is comprised of Grupo
Simec S.A.B. de C.V.; Aceros Especiales Simec Tlaxcala, S.A. de C.V.; Compania Siderurgica
del Pacifico S.A. de C.V.; Fundiciones de Acero Estructurales, S.A. de. C.V.; Grupo Chant
S.A.P.I. de C.V.; Operadora de Perfiles Sigosa, S.A. de C.V.; Orge S.A. de C.V.; Perfiles
Comerciales Sigosa, S.A. de C.V.; RRLC S.A.P.I. de C.V.; Siderúrgicos Noroeste, S.A. de C.V.;
Siderurgica del Occidente y Pacifico S.A. de C.V.; Simec International 6 S.A. de C.V.; Simec
International, S.A. de C.V.; Simec International 7 S.A. de C.V.; and Simec International 9
S.A. de C.V. Pls.’ Br. at 1, ECF No. 43.
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inference using facts available to calculate Simec’s dumping margin, which in turn
impacted the rate for the companies not selected for review.
This case is an outlier, both in terms of its factual context and Commerce’s
response; but “[COVID-19] did not suspend the general principles of administrative
law.” See Bonney Forge Corp. v. United States, 46 CIT __, 560 F. Supp. 3d 1303, 1305
(2022). Those principles lead the Court to conclude that the denial of Simec’s
extension request was an abuse of discretion and that Commerce’s explanation of why
it denied the extension is unsupported by substantial evidence. The Court therefore
REMANDS this case to Commerce with instructions.
BACKGROUND
This case involves an appeal from the Final Results of the Fifth Administrative
Review of the Antidumping Order on Steel Concrete Reinforcing Bar (rebar) from
Mexico for the period from November 1, 2019 to October 31, 2020 (the Review Period).
See Steel Concrete Reinforcing Bar from Mexico (Final Results), 87 Fed. Reg. 34,848(Dep’t of Com. Jun. 8, 2022), J.A. at 7,781, ECF No. 68; IDM, J.A. at 7,713, ECF No.
68; Questionnaire Deficiencies Analysis (Deficiencies Memo), J.A. at 91,515, ECF No.
67. More specifically, this case is about how Commerce treated two experienced
respondents, Simec and Deacero S.A.P.I. de C.V. (Deacero), differently in the review
conducted during the COVID-19 pandemic in Mexico.
In 2014, Commerce published an antidumping order covering rebar from
Mexico (the Order). Steel Concrete Reinforcing Bar from Mexico, 79 Fed. Reg. 65,925(Nov. 6, 2014). Simec and Deacero are two Mexican rebar producers. Simec
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participated in the original investigation as a voluntary respondent, and Deacero
participated as a mandatory respondent. See Steel Concrete Reinforcing Bar from
Mexico, 79 Fed. Reg. 22,802 (Dep’t of Com. Apr. 24, 2014). Simec and Deacero
participated as mandatory respondents in the 2014–15, 2016–17, and 2017–18
administrative reviews. See Steel Concrete Reinforcing Bar from Mexico, 82 Fed. Reg.
27,233 n.2 (Dep’t of Com. June 14, 2017) (2014–15 review); Steel Concrete Reinforcing
Bar from Mexico, 84 Fed. Reg. 35,599 (Dep’t of Com. July 24, 2019) (2016–17 review);
Steel Concrete Reinforcing Bar from Mexico, 85 Fed. Reg. 71,053 (Dep’t of Com. Nov.
6, 2020) (2017–18 review). Deacero participated as a mandatory respondent in the
2018–19 review. See Steel Concrete Reinforcing Bar from Mexico, 86 Fed. Reg. 50,527(Dep’t of Com. Sept. 9, 2021). Simec participated in the 2018–19 review but was not
a mandatory respondent. See id.; see also Steel Concrete Reinforcing Bar from Mexico
at 2, A-201-844, (Mar. 17, 2021), https://bit.ly/44brJ6q (last visited April 25, 2024).
(Preliminary Decision Memo explaining that Simec requested review of its entries for
the period of review, but Commerce limited the review to Deacero).
I. The Disputed Administrative Review
On November 3, 2020, Commerce published a notice of opportunity to request
an administrative review. Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity to Request Administrative Review, 86 Fed. Reg.
69,586 (Dep’t of Com. Nov. 3, 2020). Defendant-Intervenor Rebar Trade Action
Coalition (the Coalition) petitioned Commerce for a review. Steel Concrete
Reinforcing Bar from Mexico (Request for Administrative Review), J.A. at 1,004, ECF
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No. 68. On January 6, 2021, Commerce published a notice of administrative review
for the parties subject to the Order for 2019–20. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 85 Fed. Reg. 511 (Dep’t of Com. Jan. 6,
2021), J.A. at 1,040, ECF No. 68. Commerce selected Simec and Deacero as
mandatory respondents; and Consolidated Plaintiff Grupo Acerero and Plaintiff-
Intervenor Gerdau Corsa remained subject to the review as non-selected companies.2
See Steel Concrete Reinforcing Bar from Mexico (Preliminary Results), 86 Fed. Reg.
68,632–33 (Dep’t of Com. Dec. 3, 2021), J.A. at 7,269–70, ECF No. 68.
During the review, Mexico experienced a COVID-19 Delta Variant outbreak,
which lagged a similar wave in the United States a few months prior. See Oral Arg.
Tr. at 22:6–12, ECF No. 71. Both mandatory respondents faced Mexico-wide
COVID-19 restrictions on travel and on-site work. See, e.g., Simec Second A&D
Questionnaire Extension Req. (Aug. 16, 2021) at 1–2, J.A. at 4,910–11, ECF No. 68;
Deacero Second Suppl. Questionnaire Extension Req. (Oct. 1, 2021) at 1–2, J.A. at
6,606–07, ECF No. 68. These restrictions hampered the companies’ coordination with
employees in different departments and geographically dispersed affiliates. Id. They
proved particularly burdensome during the information-gathering period before
Commerce published its Preliminary Results. Id. Mexico also lacked the same level
of access to COVID-19 vaccines as the United States. Oral Arg. Tr. at 22:12–18, ECF
No. 71.
2 Gerdau Corsa is the successor-in-interest to Sidertul S.A. de C.V. (Sidertul) as of December
1, 2021. Joint Mot. of Grupo Acerero and Gerdau Corsa at 1 n.1, ECF No. 44 (Joint Opening
Br.). Sidertul participated in the administrative review at issue here as a foreign producer
but was not selected for individual examination. Id.
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As Mexico’s Delta outbreak and COVID-19 restrictions continued, Commerce
required the respondents to produce significant amounts of information, often from
on-site records. Simec and Deacero both faced Mexico-wide COVID issues, but Simec
also notified Commerce of the outbreak’s tragic consequences — the deaths of three
key accountants and the intubation of another. See Simec Third A&D Questionnaire
Extension Req. (Aug. 16, 2021) at 1, J.A. at 4,914, ECF No. 68; see also Pls.’ Br. at 38,
ECF No. 43. Given the pandemic, both respondents requested multiple extensions
from Commerce to produce the requested information.
A. Simec’s Initial and Supplemental Questionnaire Periods
On February 8, 2021, Commerce issued initial questionnaires to Deacero and
Simec. Deacero Initial Questionnaire, J.A. at 1,094, ECF No. 68; Simec Initial
Questionnaire, J.A. at 1,246, ECF No. 68. Simec experienced several challenges when
responding to its questionnaire: (1) a key accountant died from COVID-19; (2) an at-
risk pregnant employee had to be isolated; (3) some workers contracted COVID-19;
and (4) a Texas winter storm affected power, heat, and internet at Simec’s facilities.
See, e.g., Simec Initial Questionnaire Extension Req. (Mar. 19, 2021), J.A. at 3,707,
ECF No. 68. Simec received three extensions ranging from one to four weeks. IDM
at 7, J.A. at 7,719, ECF No. 68; Def.’s Br. at 4, ECF No. 47. It filed responses for
sections A through D from March 8 through April 14, providing downstream sales
data and analysis. Deficiencies Memo at 1, J.A. at 91,515, ECF No. 67.
After identifying deficiencies in Simec’s responses, Commerce issued
supplemental questionnaires for sections A through C on July 27, 2021, and sections
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A and D on August 4, 2021. Simec A–C Questionnaire, J.A. at 4,873, ECF No. 68;
Simec A&D Questionnaire, J.A. at 4,890, ECF No. 68.3 Commerce initially provided
Simec three weeks to respond to the A–C Questionnaire and one week to respond to
the A&D Questionnaire. Simec A–C Questionnaire, J.A. at 4,873, ECF No. 68 (due
August 17, 2021); Simec A&D Questionnaire, J.A. at 4,890, ECF No. 68 (due August
11, 2021). All parties agree that the supplemental questionnaires, which contained
275 questions over 29 pages, were extensive. Pls.’ Br. at 6, ECF No. 43; see also Joint
Opening Br. at 9–10, ECF No. 44; Def.’s Br. at 30, ECF No. 47 (quoting IDM at 27,
J.A. at 7,739, ECF No. 68) (characterizing the Initial Questionnaire deficiencies as
“so extensive that they resulted in over 200 supplemental questions”); Def.-Int.’s Br.
at 2, ECF No. 54 (stating that Commerce identified many deficiencies, which yielded
“more than two hundred supplemental questions spread over two supplemental
questionnaires”). Deacero did not receive any supplemental questionnaires until
September 7, 2021. Deacero First Suppl. Questionnaire, J.A. at 4,962, ECF No. 68
(due September 14, 2021).
3 It is unclear whether the A–C and A&D Questionnaires constitute Simec’s first and second
supplemental questionnaires or are merely two parts of one supplemental questionnaire.
Compare Simec First A&D Questionnaire Extension Req. (Aug. 16, 2021), J.A. at 4,908, ECF
No. 68 (characterized as two questionnaires), with Pls.’ Br. at 11, ECF No. 43 (contrasting
Simec’s situation with Deacero, which received more than one supplemental questionnaire).
To the extent the distinction is relevant to assess Commerce’s decision to issue multiple
supplemental questionnaires to Deacero but not Simec, the Court notes that Simec’s A–C and
A&D Questionnaires came due at an earlier point in the review process than Deacero’s second
and third questionnaires. Compare Simec A&D Questionnaire Resp. (Sept. 10, 2021) at 1,
J.A. at 86,713, ECF No. 66, with Deacero Second Suppl. Questionnaire Resp. (Oct. 19, 2021),
J.A. at 6,629, ECF No. 68, and Deacero Third Suppl. Questionnaire Resp. (Nov. 10, 2021),
J.A. at 7,162, ECF No. 68.
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Simec once again requested multiple extensions to answer its supplemental
questionnaires. Those requests and Commerce’s responses show the cumulative and
compounding effects of the pandemic on Simec and contrast with Deacero’s
treatment. On August 9, 2021, Simec requested a three-week extension for both
supplemental questionnaires, citing the burden of answering them and Mexico’s
COVID-19 restrictions. Simec A–C/A&D Questionnaire Extension Req. (Aug. 9,
2021), J.A. at 4,904, ECF No. 68. Commerce granted the request in part but warned:
Pursuant to 19 CFR 351.302(d)(1)(i) … any information submitted after
the applicable deadline will be considered untimely filed and may be
rejected. In such a case, we may have to resort to the use of facts
available, as required by section 776(a)(2)(B) of the Tariff Act of 1930,
as amended.
Simec A–C/A&D Extension Grant (Aug. 10, 2021), J.A. at 4,907, ECF No. 68. This
boilerplate warning appeared on extension request responses to both Simec and
Deacero. See, e.g., Deacero First Suppl. Questionnaire Extension Grant (Sept. 8,
2021) at 1, J.A. at 6,280, ECF No. 68.
On August 16, Simec sent another A&D Questionnaire extension request in
three letters that portrayed a quickly worsening situation. In the first letter, Simec
stated that employees were “working flat out to answer Commerce’s two …
questionnaires” and “[f]or reasons … in [its] first and only extension request,” it
needed more time. Simec First A&D Questionnaire Extension Req. (Aug. 16, 2021)
at 1, J.A. at 4,908, ECF No. 68. In its second letter, Simec added that (1) Mexico’s
Delta Variant outbreak was worsening; (2) Commerce extended its own deadlines by
several months when the United States experienced its own COVID-19 outbreak in
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2020; (3) Simec retained an experienced Indian attorney, but he was unable to travel
because of COVID-19 restrictions in Mexico and India; and (4) Commerce had
extended its preliminary decision deadline and had not yet issued any supplemental
questionnaires to Deacero. Simec Second A&D Questionnaire Extension Req. (Aug.
16, 2021) at 1–2, J.A. at 4,910–11, ECF No. 68. In its third letter, Simec offered a
startling update: Two of its accountants had died from COVID-19 and another was
intubated. Simec Third A&D Questionnaire Extension Req. (Aug. 16, 2021) at 1, J.A.
at 4,914, ECF No. 68. Simec now had to rely on less experienced accountants to
answer the supplemental questionnaires. Id. Commerce granted the August 16
request in full. Simec A&D Extension Grant (Aug. 16, 2021), J.A. at 4,916, ECF No.
68.
On August 20, Simec sent another A–C Questionnaire extension request, citing
the burden of the questionnaire and reiterating the reasons stated in its three August
16 letters. Simec A–C Questionnaire Extension Req. (Aug. 20, 2021), J.A. at 4,917,
ECF No. 68. Simec also quoted its August 9 request observing that “the burden to
answer [275 questions over 29 pages] is overwhelming.” Id. at 2, J.A. at 4,918. Simec
added that Mexico’s Delta outbreak was “far worse than ever.” Id. On August 23,
2021, Commerce partly granted the request. Simec A–C Extension Grant (Aug. 23,
2021), J.A. at 4,921, ECF No. 68.
On Saturday, August 28, Simec filed an extension request for both
supplemental questionnaires but noted specific questions from the A&D
questionnaire it believed required additional time. Simec A–C/A&D Questionnaire
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Extension Req. (Aug. 28, 2021) at 1, J.A. at 4,926, ECF No. 68. Simec attached a copy
of its August 20 extension request as background information and noted the impact
of Mexico-wide COVID-19 restrictions on its ability to coordinate across companies.
Id. at 1, J.A. at 4,926. It also responded to the Coalition’s opposition to granting
additional extensions, arguing that “Petitioners heartlessly fail to mention that two
Simec individuals … recently died from [COVID-19] and a third is … clinging to life
on a respirator.” Id. at 2, J.A. at 4,927.
Before Commerce could respond, Simec filed another request on August 30.
Simec A–C/A&D Questionnaire Extension Req. (Aug. 30, 2021), J.A. at 4,932, ECF
No. 68. Simec sought similar deadlines as its previous request and additional time
for the A–C questionnaire responses for affiliate and downstream sales. Id. at 1, J.A.
at 4,932. Simec reiterated its challenges retrieving information across a diffuse
company impacted by COVID-19. Id. On August 30, Commerce partly extended the
deadline and granted Simec extra time to respond to the A–C questions for affiliate
and downstream sales. Simec A–C Extension Grant (Aug. 30, 2021), J.A. at 4,939,
ECF No. 68. Commerce also partly extended the A&D Questionnaire deadline. Simec
A&D Extension Grant (Aug. 31, 2021), J.A. at 4,940, ECF No. 68.
On September 1, Simec filed another A–C Questionnaire extension request for
the affiliate and downstream sales questions. Simec A–C Questionnaire Extension
Req. (Sept. 1, 2021) at 1, J.A. at 4,941, ECF No. 68. Simec stated that the obstacles
in its August 20 and August 30 requests persisted. Id. It also argued that Commerce
should grant more time because “entry summaries and other documents are not
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readily accessible[] given [COVID-19] restrictions.” Id. Commerce granted a blanket
extension but gave no extra time for the specific questions. Simec A–C Extension
Grant (Sept. 1, 2021), J.A. at 4,944, ECF No. 68. Commerce also warned that “given
the amount of time already granted … as well as the statutory and regulatory
deadlines in this case and ongoing workloads, we are unlikely to be able to
accommodate any additional extensions of time ….” Id.
On September 2, Simec filed a similar one-week A&D Questionnaire extension
request. Simec A&D Questionnaire Extension Req. (Sept. 2, 2021) at 1, J.A. at 4,945,
ECF No. 68. Commerce granted two extra days but warned that it was unlikely to
grant more extension requests. Simec A&D Extension Grant (Sept. 3, 2021), J.A. at
4,953, ECF No. 68.
In a September 6 letter to Commerce, Simec took stock of its situation. The A–
C Questionnaire was due September 7, and the A&D Questionnaire was due
September 9. Simec A–C Questionnaire Extension Req. (Sept. 6, 2021) at 1, J.A. at
4,954, ECF No. 68. Simec noted, “Commerce said don’t expect further extensions[,]”
so that the submissions would be “based on what has been possible to do to date.” Id.
Simec also reported that its employees were “sleep depriv[ed] for days and weeks”
from trying to answer the questions and that the reasons detailed in the August 20,
August 30, and September 2 extension requests justified a further extension. Id.
Simec asked for a two-week extension, specifying that it needed extra time to submit
affiliated company downstream sales and window period sales data.4 Id. It noted
4 “Window period” sales data involve situations where there are U.S. sales but no comparable
home market sales during the same month(s). The “window period” refers to home market
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that answering downstream sales questions required manually reviewing more than
800 invoices. Id. Commerce denied Simec’s extension request the next day. It found,
“The [September 6] request for additional time provides no detailed justification for
why the preparation of responses for questions 70-75 or the window period sales
requires additional time beyond the six weeks already allotted.” Simec A–C
Extension Denial (Sept. 7, 2021), J.A. at 4,958, ECF No. 68.
Later that day, at around 4:30 p.m., Simec responded. Simec A–C
Questionnaire Extension Req. (Sept. 7, 2021) at 1, J.A. at 4,959, ECF No. 68. Simec
stated that it now sought one extra week for questions 70 to 75. Id. It maintained
that its previous requests detailed its need but added details about how COVID-19
restrictions hampered its response. Id. The company also stated that it needed to
extract various rebar expenses from invoices that did not separate rebar data from
other products. Id. Commerce did not respond before the deadline so that Simec filed
public and confidential A–C Questionnaire responses on September 7 and September
8. See Simec A–C Questionnaire Resp. (Sept. 8, 2021) at 1, J.A. at 4,973, ECF No. 68.
Under Commerce’s regulations, Simec’s unanswered September 7 extension request
automatically moved the deadline to September 8 at 8:30 a.m. Simec A–C Extension
Denial (Sept. 9, 2021) at 1 n.1, J.A. at 6,282, ECF No. 68 (citing Extension of Time
Limits, 78 Fed. Reg. 57,790, 57,792 (Dep’t of Com. Sept. 30, 2013)). Simec nonetheless
sales made up to ninety days before or sixty days after the U.S. sales month that lacks
contemporaneous home market sales data. See Rebar Trade Action Coal. v. United States,
45 CIT __, 503 F. Supp. 3d 1295, 1305 (CIT 2021). Those window period sales prices may
then be compared to the U.S. sales prices to determine if dumping occurred. Id.; see 19 C.F.R.
§ 351.414(f).
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missed the deadline for questions 70 to 75 and failed to submit responses for those
questions. See Simec A–C Questionnaire Resp. (Sept. 8, 2021) at 53, J.A. at 5,034,
ECF No. 68; see also Simec Cover Letter (Oct. 18, 2021) at 1–4, J.A. at 6,625–28, ECF
No. 68.
Commerce belatedly responded on September 9 and rejected Simec’s extension
request. Simec A–C Extension Denial (Sept. 9, 2021) at 1–2, J.A. at 6,282–83, ECF
No. 68. Commerce noted that it granted three extra weeks to respond to the
questionnaire and already denied an extension request for questions 70 through 75.
Id. Commerce was left to analyze an incomplete record because the rest of Simec’s
downstream cost information never became part of the record.
On September 9, Simec submitted a final extension request for the A&D
Questionnaire, which was due that same day. Simec A&D Questionnaire Extension
Req. (Sept. 9, 2021) at 1–2, J.A. at 6,284–85, ECF No. 68. It noted issues with file
corruption and challenges compiling and formatting data. Id. Simec also recounted
many of the COVID-related issues that plagued the supplemental questionnaire
period, including the lack of available COVID-19 vaccines in Mexico in comparison to
the United States. Id. at 2 n.3, J.A. at 6,285. Commerce granted Simec’s one-day
extension request but reiterated that it was unlikely to grant more extensions. Simec
A&D Extension Grant (Sept. 9, 2021), J.A. at 6,287, ECF No. 68. Simec timely filed
its A&D responses on September 10. Simec A&D Questionnaire Resp. (Sept. 10,
2021) at 1, J.A. at 86,713, ECF No. 66. Although it would be nearly three months
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until Commerce issued its Preliminary Results, Commerce did not seek or accept
additional factual information from Simec. Pls.’ Reply Br. at 1–2, ECF No. 51.
B. Deacero’s Supplemental Questionnaires and Simec’s October 18
Filing
Simec’s role in the fact-gathering portion of the administrative review was
finished, but Deacero’s continued. On September 7, 2021, Commerce issued its first
supplemental questionnaire to Deacero for Section A of its Initial Questionnaire.
Deacero First Suppl. Questionnaire, J.A. at 4,962, ECF No. 68. Deacero later received
multiple extensions across three supplemental questionnaires.
On September 8, Deacero requested a one-week extension because the
questionnaire: (1) requires a “significant amount of information from Deacero and
other separate entities”; (2) involves participation from multiple departments; (3)
involves “separate legal entities with different systems and records”; (4) requires
coordination with personnel in charge of the information; (5) involves translating long
documents; and (6) requires counsel to review the responses, follow up with questions,
and format the narrative and exhibits for submission. See Deacero First Suppl.
Questionnaire Extension Req. (Sept. 8, 2021) at 1–2, J.A. at 6,277–78, ECF No. 68.
Commerce granted this request in full. Deacero First Suppl. Questionnaire
Extension Grant (Sept. 8, 2021), J.A. at 6,280, ECF No. 68. Deacero timely filed its
First Supplemental Questionnaire. Deacero First Suppl. Questionnaire Resp. (Sept.
20, 2021), J.A. at 6,515, ECF No. 68.
On September 22, Commerce issued Deacero’s Second Supplemental
Questionnaire comprised of seventy-seven questions. Deacero Second Suppl.
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Questionnaire, J.A. at 6,589, ECF No. 68; Deacero Second Suppl. Questionnaire
Extension Req. (Sept. 24, 2021) at 2, J.A. at 6,602, ECF No. 68. Deacero requested a
two-week extension on September 24 because: (1) the questionnaire was “quite
extensive”; (2) it needed to update its sales databases and submit voluminous
supplemental documents; (3) the responses involve multiple departments; (4)
relevant documents were maintained in separate departments and “separate entities
with separate records”; (5) COVID-19 imposed “administrative constraints”; (6) most
employees were still teleworking, which delayed contact, discussion, and obtaining
documents; (7) Deacero was responding to a supplemental questionnaire in another
review, which involved the same employees and resources; and (8) counsel needed to
review the responses, follow up with questions, and format the narrative and exhibits
for submission. Deacero Second Suppl. Questionnaire Extension Req. (Sept. 24, 2021)
at 1–2, J.A. at 6,601–02, ECF No. 68. Commerce partly granted this request. Deacero
Second Suppl. Questionnaire Extension Grant (Sept. 24, 2021) at 1, J.A. at 6,604,
ECF No. 68.
On October 1, Deacero requested another one-week extension, restating the
reasons identified in its September 24 request and saying “despite Deacero’s
redoubled efforts and its staff working around the clock and through weekends,” it
needed more time. Deacero Second Suppl. Questionnaire Extension Req. (Oct. 1,
2021) at 1, J.A. at 6,606, ECF No. 68. Deacero also noted that COVID-19 teleworking
limited employees’ ability to access company systems and coordinate staff to gather,
send, and review the requested information. Id. at 1–2, J.A. at 6,606–07. Commerce
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granted this request. Deacero Second Suppl. Questionnaire Extension Grant (Oct. 1,
2021) at 1, J.A. at 6,609, ECF No. 68.
Deacero next submitted a four-day extension request. Deacero Second Suppl.
Questionnaire Extension Req. (Oct. 13, 2021), J.A. at 6,614, ECF No. 68. Deacero
reiterated that most employees were teleworking and that its resources were split
between this questionnaire and responding to another questionnaire in a different
review. Id. at 1–2, J.A. at 6,614–15. It did not mention COVID-19 in this request.
See id. at 1–3, J.A. at 6,614–16. Deacero also claimed that: (1) it was experiencing
internet connection issues, which hampered access to its systems, delayed attempts
to retrieve and locate documents, and delayed updates for its sales databases; (2)
counsel needed to review the information, follow up with questions, and format the
documents for submission; and (3) “Deacero respectfully submits that this short
extension will not adversely affect any other party or unduly hinder [Commerce’s]
ability to analyze the information within the statutory deadlines.” Id. at 1–2, J.A. at
6,614–15. Commerce partly granted this request –– setting the deadline for October
18, 2021. Deacero Second Suppl. Questionnaire Extension Grant (Oct. 13, 2021), J.A.
at 6,617, ECF No. 68. Deacero timely filed its Second Supplemental Questionnaire.
See Deacero Second Suppl. Questionnaire Resp. (Oct. 19, 2021), J.A. at 6,629, ECF
No. 68.5
On October 18, as Deacero was filing its Second Supplemental Questionnaire,
Simec attempted to file its missing responses to the A–C Suppl. Questionnaire (the
5 Deacero dated its filing October 18; however, the filing is timestamped October 19.
Consol. Court No. 1:22-cv-00202-SAV Page 17
October 18 Filing). See Rejected October 18 Filing, J.A. at 6,619–24, ECF No. 68
(blank placeholder sheets for the rejected data). Simec sought to include (1)
information related to affiliated and downstream sales; (2) other information on cost
allocation methodology; and (3) Spanish-to-English translations that had been
inadvertently stripped during the original filing process. Pls.’ Br. at 12, ECF No. 43
(citing Simec Cover Letter (Oct. 18, 2021) at 1–4, J.A. at 6,625–28, ECF No. 68). It
requested that Commerce accept this filing because of challenges faced during the
supplemental review period and because Commerce was still accepting information
from Deacero. Simec Cover Letter (Oct. 18, 2021) at 1–4, J.A. at 6,625–28, ECF No.
68. At the time of Simec’s attempted submission, Deacero had no further outstanding
questionnaires. Had Commerce accepted the October 18 Filing, Simec and Deacero
would have been on equal footing with their responses’ timing. Commerce rejected
the filing as untimely. Simec October 18 Filing Denial (Oct. 19, 2021), J.A. at 7,108,
ECF No. 68 (citing 19 C.F.R. § 351.302(d)(1)(i)).
Despite having no time for further information from Simec, Commerce issued
a third supplemental questionnaire to Deacero on November 3, 2021. See Deacero
Third Suppl. Questionnaire at 1, J.A. at 7,120, ECF No. 68. Two days later, Deacero
requested a two-day extension because it needed more time to manually search its
records. Deacero Third Suppl. Questionnaire Extension Req. (Nov. 5, 2021) at 1, J.A.
at 7,123, ECF No. 68. It again asserted that this extension would not adversely affect
any other party or hinder Commerce’s ability to analyze the information within its
statutory deadlines. Id. at 2, J.A. at 7,124. Commerce granted the request. Deacero
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Third Suppl. Questionnaire Extension Grant (Nov. 5, 2021) at 1, J.A. at 7,126, ECF
No. 68. Deacero timely filed its Third Supplemental Questionnaire. Deacero Third
Suppl. Questionnaire Resp. (Nov. 10, 2021), J.A. at 7,162, ECF No. 68.
C. Commerce’s Preliminary and Final Results
Commerce published its Preliminary Results on December 3, 2021. Preliminary
Results, 86 Fed. Reg. 68,632, J.A. at 7,269, ECF No. 68. It applied facts available
with an adverse inference against Simec because Simec “failed to provide any
responses to the questions related to downstream sales” and the responses the
company did submit “fail[ed] to provide information Commerce requested,
[incorrectly] stated that various errors or discrepancies had been corrected … and
provided supporting documentation which indicated that certain reported data were
incorrect.” Issues and Decisions Memorandum accompanying the Preliminary
Results (PDM) at 5, J.A. at 7,222, ECF No. 68. Commerce assigned Simec a dumping
margin of 66.70 percent, which was the same margin assigned to Simec during the
original investigation. Def.’s Br. at 6, ECF No. 47 (citing PDM at 9, J.A. at 7,226,
ECF No. 68); see also Steel Concrete Reinforcing Bar from Mexico (Final
Determination), 79 Fed. Reg. 54,967 (Dep’t of Com. Sept. 15, 2014). Commerce
calculated a zero percent rate for Deacero. PDM at 10, J.A. at 7,227, ECF No. 68. It
also calculated the rate for the companies not selected for individual examination by
averaging Simec’s rate and Deacero’s rate. Id. (citing 19 U.S.C. § 1673d(c)(5)(B)).
That simple average resulted in a 33.35 percent dumping margin for non-selected
companies with transactions during the review period. Def.’s Br. at 7, ECF No. 47.
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Commerce published its Final Results on June 8, 2022. See generally IDM,
J.A. at 7,713, ECF No. 68. Commerce continued to apply facts available with an
adverse inference against Simec. See id. at 1, J.A. at 7,713. All dumping margins
remained the same. Id. at 41, J.A. at 7,753. It concurrently published the public
version of its Deficiencies Memorandum, which details deficiencies in Simec’s
submissions.6 Deficiencies Memo, J.A. at 7,817, ECF No. 68.
II. The Present Dispute
On August 8, 2022, Simec brought this action under § 516A of the Tariff Act of
1930, 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and 1516a(a)(2)(B)(iii), challenging
Commerce’s Final Results. Compl. ¶¶ 2, 8–11, ECF No. 8. The Coalition intervened
as Defendant-Intervenor. Order Granting Intervention, ECF No. 16. Grupo Acerero
filed a separate action challenging the Final Results. Compl., Grupo Acerero S.A. de
C.V. v. United States, No. 22-230 (CIT Aug. 26, 2022), ECF No. 8. In addition to the
issues Simec raises, Grupo Acerero challenges the 33.35 percent non-selected
company rate as unsupported by substantial evidence. Id. ¶ 28. The Coalition
intervened as a Defendant-Intervenor in that case as well. Order Granting
Intervention, Grupo Acerero S.A. de C.V. v. United States, No. 22-230 (CIT Sept.6
2022), ECF No. 16. Gerdau Corsa joined as Plaintiff-Intervenor on September 23,
2022. Order Granting Intervention, Grupo Acerero S.A. de C.V. v. United States, No.
6 Commerce initially failed to place its Deficiencies Memo on the record because “a case
analyst unfamiliar with the administrative review was covering for the assigned case analyst,
who was on leave, and inadvertently failed to file the public and confidential versions of the
Deficiencies Memorandum ….” Def.’s Mot. to Correct the R. at 2, ECF No. 28. The Court
took briefing on the issue and ultimately allowed Commerce to supplement the
administrative record with the confidential Deficiencies Memo. ECF No. 39.
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22-230 (CIT Sept. 23, 2022), ECF No. 23. After an in-person status conference on
October 26, 2022, the Court consolidated both actions with Simec’s action designated
as the lead case. Consolidation Scheduling Order, ECF No. 27.
In their briefs, the parties focus on (1) whether Commerce abused its discretion
in denying Simec’s extension requests and rejecting the October 18 Filing, (2)
Commerce’s drawing an adverse inference, and (3) Commerce’s use of simple
averaging to calculate the non-selected company rate. In response, Commerce
broadly defends its use of total adverse facts available for Simec and use of a simple
average for the non-selected company rate. Def.’s Br. at 12–46, ECF No. 47. It claims
it did not abuse its discretion in denying the extension requests and rejecting the
October 18 Filing. Id. at 12–19. Commerce asserts that adverse inferences were
appropriate because Simec failed to cooperate to the best of its ability. Id. at 30–39.
In its reply brief, Simec focuses its argument on Commerce’s disparate
treatment of Simec vis-à-vis Deacero, observing that Commerce cut Simec out of the
fact gathering portion two months before Deacero’s submissions ended. Pls.’ Reply
at 1–10, ECF No. 51. Simec also reiterates its arguments that Commerce abused its
discretion in rejecting the October 18 Filing and assigning Simec a 66.70 percent
dumping margin. Id. at 10–15. In their joint reply brief, Grupo Acerero and Gerdau
Corsa also argue that the non-selected company rate did not reasonably reflect the
potential dumping margins for the non-selected respondents. Joint Reply Br. at 12–
23, ECF No. 52.
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The Court held oral argument on December 15, 2023. ECF No. 64. Simec’s
counsel represented to the Court — and Commerce did not find in its decision to the
contrary — that the documents Simec sought to file on October 18 were the same as
Simec would have filed had Commerce granted its September 7 extension request.
Oral Arg Tr. 19:20–25, ECF No. 71 (The Court: “[D]o I hear you representing to the
Court that essentially what you did on October 18th was attempt to give [Commerce]
… the same thing that they would have received in the first ten days of September
had they given you a couple of additional days?” Mr. Rogers: “Yes, Your Honor.”).
Simec’s counsel also represented that Simec chose to submit its information on
October 18 to coincide with Deacero’s Second Supplemental Questionnaire deadline,
which at the time was Deacero’s last opportunity to submit information before the
Preliminary Results. Id. at 19:25–20:13. All parties agreed that, should the Court
remand on the issue of Commerce’s failure to grant an extension of time to Simec, it
should stay any consideration of the non-selected company rate until the remand
determination. Id. at 83:12–19, 94:2–7, 98:13–20. Any change in Simec’s rate would
necessarily affect the non-selected company rate. Id. at 94:7–11 (Defendant’s counsel
noting that a change in Simec’s rate would “necessarily flow [and affect] the non-
selected rate ….”); id. at 98:20–22 (Coalition’s counsel agreeing that, if the case were
remanded, the non-selected company rate issue “could go away depending on what
happens on remand.”).
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JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction under 28 U.S.C. § 1581, which grants authority to
review challenges to antidumping order final determinations. The Court must set
aside any of Commerce’s “determination[s], finding[s], or conclusion[s]” 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); see also 28 U.S.C. § 2640(b) (noting that
§ 516A civil actions are reviewed under 19 U.S.C. § 1516a(b)). “[T]he question is not
whether the Court would have reached the same decision on the same record[;]
rather, it is whether the administrative record as a whole permits Commerce’s
conclusion.” New Am. Keg v. United States, 45 CIT __, 2021 Ct. Intl. Trade LEXIS
34, at *15. When reviewing agency determinations, findings, or conclusions for
substantial evidence, the Court assesses if the agency’s action is reasonable given the
record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed.
Cir. 2006); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The
substantiality of evidence must take into account whatever in the record fairly
detracts from its weight.”). The Federal Circuit describes “substantial evidence” as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” DuPont Teijin Films USA, LP v. United States, 407 F.3d 1211, 1215
(Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Commerce has discretion to set and enforce deadlines in administrative
reviews. See Dongtai Peak Honey Indus. Co., Ltd. v. United States, 777 F.3d 1343,
1352 (Fed. Cir. 2015); see also 19 C.F.R. § 351.302 (extension of time limits). But that
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discretion is not absolute. See Grobest & I-Mei Indus. (Viet.) Co., Ltd. v. United
States, 36 CIT 98, 122 (2012) (citing NTN Bearing Corp. v. United States, 74 F.3d
1204, 1207 (Fed. Cir. 1995)). Commerce’s exercise of discretion is reviewed under the
default standard of the Administrative Procedure Act. See SolarWorld Americas, Inc.
v. United States, 962 F.3d 1351, 1359 n.2 (Fed. Cir. 2020) (explaining that, in cases
reviewed under 28 U.S.C. § 2640(b), section 706 review applies “since no law provides
otherwise”); Oman Fasteners, LLC v. United States, 47 CIT __, 2023 Ct. Intl. Trade
LEXIS 28, at *10 (“Commerce’s exercise of discretion in § 516A cases is subject to the
default standard of the Administrative Procedure Act.”). This standard allows the
Court to “set aside agency action, findings, and conclusions found to be … arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
DISCUSSION
I. SUMMARY
Commerce abused its discretion when it cut Simec out of the fact-gathering
portion of the review nearly three months before publishing the Preliminary Results
by citing the need to meet statutory deadlines. Meanwhile, it granted Deacero
multiple extension requests over three supplemental questionnaires for nearly two
more months. Both companies cited COVID-related difficulties and submitted less-
than-perfect initial questionnaires –– requiring triple-digit numbers of supplemental
questions for both. However, only Simec experienced three deaths and an intubation
among the accountants responsible for responding to Commerce’s questionnaires.
Consol. Court No. 1:22-cv-00202-SAV Page 24
Only Simec noted that its experienced counsel, who had assisted in previous reviews,
could not travel because of COVID-19 restrictions. Commerce failed to appreciate the
severe disruptions COVID-19 caused in Simec’s ability to respond while crediting
Deacero’s more generic claims of difficulty. That the agency’s fact-finding process
lasted nearly three months after it told Simec no additional time was available
undermines any finality justification for Commerce’s actions.
Commerce’s explanation also fails to properly characterize Simec’s situation.
The Issues and Decisions Memorandum is bereft of discussion of Simec’s specific
COVID-19 challenges and fails to consider how those challenges detract from
Commerce’s conclusion that none of the reasons Simec presented for one additional
extension were “novel.” Their absence mars the conclusion as unsupported by
substantial evidence. Because Commerce abused its discretion and its conclusion is
unsupported by substantial evidence, the Court remands the case to Commerce to
reopen the record and allow Simec to add the information it would have included had
Commerce granted its final A–C Supplemental Questionnaire extension request.
Commerce’s use of facts available, drawing of adverse inferences, and use of a
simple average to determine the non-examined company rate all flow from
Commerce’s unjustified decision to reject Simec’s final extension request. Because
Commerce’s final determination may change after it accepts Simec’s data, it would
be inappropriate for the Court to decide Plaintiffs’ remaining claims. On remand,
Commerce should analyze the information in Simec’s October 18 Filing and any
additional information it may request in its discretion to calculate (1) a new dumping
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margin for Simec and (2) a new non-selected company rate. The agency remains free
to use facts available to fill any gaps remaining after accepting Simec’s October 18
Filing and may draw adverse inferences if legally appropriate.
II. Commerce’s Disparate Treatment of Simec Was an Abuse of Discretion
Commerce abused its discretion when it denied Simec’s September 7 extension
request. It cut Simec out of the fact-gathering portion of the review well before
releasing the Preliminary Results while continuing to issue Deacero multiple
supplemental questionnaires and time extensions. Cf. SKF USA Inc. v. United
States, 263 F.3d 1369, 1382 (Fed. Cir. 2001) (quoting Transactive Corp. v. United
States, 91 F.3d 232, 237 (D.C. Cir. 1996)) (“[I]t is well-established that ‘an agency
action is arbitrary when the agency offer[s] insufficient reasons for treating similar
situations differently.’”) (second alteration in original). Although Simec and Deacero
both proffered COVID-19 restrictions as justification for their extension requests,
Simec faced more acute challenges. Nonetheless, Commerce denied Simec’s
September 7 extension request, continued to request and accept information from
Deacero until November 10, and did not publish its Preliminary Results until
December 3. Compare Simec A–C Questionnaire Extension Denial (Sept. 9, 2021),
J.A. at 6,282, ECF No. 68, and Deacero Third Suppl. Questionnaire Resp. (Nov. 10,
2021), J.A. at 7,162, ECF No. 68, with Preliminary Results, 86 Fed. Reg. 68,632, J.A.
at 7,269, ECF No. 68. Commerce’s differential treatment was an abuse of discretion.
Commerce issued detailed questionnaires for both Simec and Deacero.
Compare Simec Initial Questionnaire, J.A. at 1,246, ECF No. 68, with Deacero Initial
Consol. Court No. 1:22-cv-00202-SAV Page 26
Questionnaire, J.A. at 1,094, ECF No. 68. Both companies’ responses required
extensive supplementation. See Simec A–C Questionnaire Extension Req. (Aug. 20,
2021) at 1–2, J.A. at 4,917–18, ECF No. 68 (noting Simec received 275 supplemental
questions); Oral Arg. Tr. at 15:1–15, 37:17–18, ECF No. 71 (noting Deacero received
about 100 supplemental questions). Both filed multiple extension requests during
the supplemental questionnaire period, citing COVID-19 restrictions and the
questionnaires’ extensiveness as their primary challenges. See, e.g., Simec A–C/A&D
Questionnaire Extension Req. (Aug. 9, 2021) at 1, J.A. at 4,904, ECF No. 68 (stating
that it was a “huge” burden to answer both questionnaires and citing ongoing COVID-
19 restrictions); Deacero Second Suppl. Questionnaire Extension Req. (Sept. 24, 2021)
at 1–2, J.A. at 6,601–02, ECF No. 68 (stating the questionnaire is “quite extensive”
and COVID-19 imposed “administrative constraints”).
However, Simec faced far more severe hurdles. Three of its key employees died
from COVID-19 –– one during the initial questionnaire period and two during the
supplemental questionnaire period. Pls.’ Br. at 5, ECF No. 43. Another employee
needed intubation. Simec Third A&D Questionnaire Extension Req. (Aug. 16, 2021),
J.A. at 4,914, ECF No. 68. Simec attempted to bring in experienced outside counsel
to assist, but Mexican and Indian COVID-19 restrictions blocked these efforts. Simec
Second A&D Questionnaire Extension Req. (Aug. 16, 2021) at 2, J.A. at 4,911, ECF
No. 68. The record reflects that Simec faced uniquely severe fallout from COVID-19.
Indeed, Commerce conceded at oral argument that it was unaware of any other
COVID-era respondent that experienced the level of hardship Simec did. Oral Arg.
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Tr. at 29:15–19, ECF No. 71 (The Court: “[A]re you aware of any other administrative
review engaged in during this time period in which multiple key employees died
during the administrative review?” Ms. Westercamp: “I am not, Your Honor.”).
Deacero, by contrast, contended with the general COVID-19 hurdles multiple
pandemic-era respondents faced. See, e.g., Deacero Second Suppl. Questionnaire
Extension Req. (Sept. 24, 2021) at 2, J.A. at 6,602, ECF No. 68 (noting that COVID-
19 imposed “administrative constraints” and citing general COVID-19 issues such as
telework requirements). Deacero suffered no deaths or hospitalizations among key
employees. Instead, its extension requests (1) made general assertions of continued
difficulty because of Mexican COVID-19 restrictions; (2) cited issues that Simec also
raised, such as having a geographically dispersed company structure and the breadth
of the questionnaires; and (3) raised issues that were comparatively less severe than
Simec’s. See, e.g., Deacero Second Suppl. Questionnaire Extension Req. (Oct. 13,
2021) at 1–3, J.A. at 6,614–16, ECF No. 68 (noting unexpected computer connection
issues). In some extension requests, Deacero did not mention COVID-19 at all. See
id. Nevertheless, Commerce continued to grant Deacero’s requests well after it
denied Simec’s September 7 extension request on the grounds that time was of the
essence.
Commerce faced two respondents in this review. One confronted calamitous
consequences because of COVID-19. The other experienced disruptions akin to those
of any respondent in the pandemic era. Commerce chose to reward Deacero’s more
generic descriptions of difficulty with extensions while downplaying the much more
Consol. Court No. 1:22-cv-00202-SAV Page 28
severe difficulties Simec faced. Citing time constraints, Commerce shut Simec down
two months before it ended its examination of Deacero. IDM at 12, J.A. at 7,724, ECF
No. 68 (citing the “need to ensure sufficient time for review and possible further
supplemental questionnaires” as justification to deny the last extension request).
Commerce and the Coalition offer several reasons for why the agency did not
abuse its discretion when it denied Simec’s September 7 extension request. Their
arguments focus on the timeline of events and the supposed divergence between
Simec’s and Deacero’s respective reviews. Def.’s Br. at 15, 18–19, 31, 34, ECF No. 47;
see also Def-Int.’s Br. at 8, 10–12, ECF No. 54. These arguments are unavailing.
Commerce and the Coalition first argue that Simec attempted to file its
information on October 18 –– well past the September 16 deadline Simec originally
requested in its September 7 extension request. See Def.’s Br. at 5, 31, ECF No. 47
(quoting IDM at 28, J.A. at 7,740, ECF No. 68); see also Simec A–C Questionnaire
Extension Req. (Sept. 7, 2021), J.A. at 4,959, ECF No. 68. They also assert that Simec
received nearly all the time it sought in prior extension requests and still did not
submit timely responses. See Oral Arg. Tr. at 50:22–51:2, ECF No. 71 (Coalition’s
counsel arguing that Simec eventually received the time it originally requested after
notifying Commerce of employee deaths).
It is true that Simec did not meet its proposed September 16 deadline.
However, Commerce rejected that deadline, stating “the deadline for the submission
… was 8:30 a.m., September 8, 2021[,]” and “we previously denied [Simec’s] request
for an extension … [and] we are similarly denying [this] requested extension.” Simec
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A–C Questionnaire Extension Denial (Sept. 9, 2021) at 1–2, J.A. at 6,282–83, ECF
No. 68 (emphasis added). Although it would have been prudent for Simec to try to
submit the missing information at the first opportunity, Commerce can hardly fault
Simec for failing to abide by a deadline the agency rejected. Cf. Celik Halat ve Tel
Sanayi A.S. v. United States, 46 CIT __, 557 F. Supp. 3d 1348, 1359 (2022) (“While
this court agrees that it would have been prudent for Celik Halat’s representative to
file an extension request, timely or otherwise, the court also notes the existence of
record evidence to support a reasonable belief … that both of these efforts would have
been futile.”).
The Coalition and Commerce attempt to explain the refusal to grant Simec
additional time by citing the need for finality and the burden of accepting late-filed
information. See Def.’s Br. at 18–19, ECF No. 47; Def-Int.’s Br. at 9–10, ECF No. 54;
see also Oral Arg. Tr. at 51:23–25, ECF No. 71 (“[E]veryone seems to agree … the
balance that is before the Court [is] accuracy versus finality.”). However, Commerce’s
interest in finality nearly three months before releasing the Preliminary Results was
not just at a nadir; it was nearly zero. See Timken United States Corp. v. United
States, 434 F.3d 1345, 1353 (Fed. Cir. 2006) (“This court … has never discouraged the
correction of errors at the preliminary result stage; we have only balanced the desire
for accuracy in antidumping duty determinations with the need for finality at the
final results stage.”). That interest in finality was even lower in early September,
when Commerce rejected Simec’s extension request, than in mid-October, when
Commerce rejected Simec’s final attempted filing.
Consol. Court No. 1:22-cv-00202-SAV Page 30
Commerce’s concern with finality rings hollow when one considers it would be
nearly three months and three supplemental questionnaires for Deacero before
Commerce issued the Preliminary Results. Neither Simec nor Deacero submitted
stellar initial questionnaires. Both necessitated multiple rounds of supplementation
amounting to triple-digit numbers of additional queries. But Commerce opted to cut
Simec out of the remaining fact-gathering portion while continuing to allow Deacero
additional extensions. Compare Deacero Second Suppl. Questionnaire Extension
Req. (Oct. 13, 2021) at 2, J.A. at 6,615, ECF No. 68 (“Deacero respectfully submits
that this short extension will not adversely affect any other party or unduly hinder
[Commerce’s] ability to analyze the information within the statutory deadlines.”), and
Deacero Second Suppl. Questionnaire Extension Grant (Oct. 13, 2021), J.A. at 6,617,
ECF No. 68, with IDM at 12, J.A. at 7,724, ECF No. 68 (citing the “need to ensure
sufficient time for review and possible further supplemental questionnaires” as
justification to deny Simec’s last extension request). Deacero answered over one
hundred supplemental questions after Commerce had ended Simec’s role in the fact
gathering process. Pls.’ Reply at 6, ECF No. 51. Commerce attempted to explain its
wildly differential treatment:
Deacero was farther along in the administrative process than Grupo
Simec because of the significant amount of time that it took Commerce
to review Grupo Simec’s initial questionnaire responses and because
Commerce had granted Grupo Simec a significant amount of time to
prepare its first supplemental questionnaire responses. More
importantly, though, as the administrative process runs its course, the
deadlines and requests for information from each respondent diverge,
and, as such, Commerce’s deadlines for one respondent are not
comparable with those of another, nor is the submission of untimely-
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filed information justifiable simply because we accept information from
another party on that date.
IDM at 18, J.A. at 7,730, ECF No. 68.
This statement does little to clarify Commerce’s actions. Though Simec’s and
Deacero’s deadlines might diverge during the supplemental questionnaire process,
there is no escaping their common deadline — the Preliminary Results. Commerce
ended Simec’s participation in the review as Deacero continued to submit a
significant amount of information for two more months. As the Consolidated
Plaintiffs correctly note, “[T]he likely burden on Commerce to receive responses to six
questions … five to seven days after receiving responses to 269 other questions was
comparatively insignificant” — particularly when Commerce made time over the next
couple of months to issue and review more than one hundred queries from Deacero.
Joint Opening Br. at 27, ECF No. 44.
By Commerce’s own admission, no respondent was more affected by the
COVID-19 pandemic than Simec. Meanwhile, Deacero experienced the same
frustrations as every other pandemic-era respondent going through the
administrative review process. Commerce credited Deacero’s general complaints and
granted sufficient time for it to submit the required information. Conversely, the
agency downplayed the rising death toll at Simec, grew frustrated, and prematurely
ended Simec’s ability to respond to Commerce’s questionnaires. Because Commerce’s
actions were arbitrary, its decision to reject Simec’s request for an extension may not
stand.
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Simec asserts that (1) it could have timely submitted its missing information
had Commerce granted it one final extension; (2) its attempted October 18 Filing was
the same information that it would have submitted had Commerce granted one final
extension; and (3) it chose to submit information on October 18 because that date
coincided with Deacero’s second supplemental questionnaire deadline –– the then-
final date that Commerce would take factual evidence from either respondent. See
Oral Arg. Tr. at 18:10–18, 19:20–20:13, ECF No. 71. In other words, Simec sought to
be on equal footing with Deacero at the end of the supplemental questionnaire period.
Commerce did not refute these representations. See IDM at 20, J.A. at 7,732, ECF
No. 68 (“Simec elected to ignore Commerce’s established supplemental questionnaire
deadlines and then later attempted to submit the information that it failed to submit
in a timely manner ….”) (emphasis added); see also Def.’s Br. at 5, ECF No. 47 (“[O]n
October 18, 40 days after the September 7 deadline and automatically extended
September 8 8:30 a.m. deadline, Simec filed a submission containing the information
Commerce had requested in the A-C supplemental questionnaire.”). The Court
therefore REMANDS the case to Commerce to reopen the record and accept the
October 18 Filing.
III. Commerce’s Conclusions Are Unsupported by Substantial Evidence
Were it not an abuse of discretion, Commerce’s decision to reject Simec’s
request for additional time would also fail for not being supported by substantial
evidence. See Universal Camera Corp., 340 U.S. at 488 (“The substantiality of
evidence must take into account whatever in the record fairly detracts from its
Consol. Court No. 1:22-cv-00202-SAV Page 33
weight.”). Commerce claimed that “none of the reasons for [Simec’s] extension
requests … were novel.” See IDM at 10, J.A. at 7,722, ECF No. 68. Three dead
accountants, a fourth hospitalized, and an outside counsel unable to help because of
pandemic restrictions are the very definition of “novel.” Commerce’s attempt to say
otherwise does not find sufficient evidentiary support in the record.
Simec faced severe challenges in both the initial and supplemental
questionnaire periods. While answering the initial questionnaire, Simec notified
Commerce that its workers contracted COVID-19, an at-risk pregnant worker needed
to be isolated, and a key accountant died from COVID-19. See, e.g., Simec Initial
Questionnaire Extension Req. (Mar. 19, 2021) at 1, J.A. at 3,707, ECF No. 68. It also
notified Commerce that a record-setting Texas winter storm affected power, heat, and
internet at Simec’s facilities. Id.Things did not get better during the supplemental questionnaire period.
Simec’s COVID-19 challenges persisted and compounded. In early August, Simec
requested extensions for both supplemental questionnaires, explaining Mexican
COVID-19 restrictions hindered coordination and on-site work across multiple
locations. Simec A–C/A&D Questionnaire Extension Req. (Aug. 9, 2021), at 1, J.A. at
4,904, ECF No. 68. On August 16, Simec’s situation worsened. In addition to citing
ongoing restrictions, Simec informed Commerce that two more accountants died from
COVID-19; another accountant was intubated; and Simec’s experienced outside
counsel, who was “extremely helpful” in a prior administrative review, could not
travel to Mexico because of COVID-19 restrictions. Simec A&D Extension Reqs. (Aug.
Consol. Court No. 1:22-cv-00202-SAV Page 34
16, 2021), J.A. at 4,911, 4,914, ECF No. 68. From mid-August to the rejected
September 7 extension request, Simec reiterated these challenges and advised
Commerce of new hurdles. See, e.g., Simec A–C Questionnaire Extension Req. (Sept.
6, 2021), J.A. at 4,954, ECF No. 68.
Commerce claims that it properly credited Simec’s COVID-19 challenges when
considering its extension requests. Def.’s Br. at 31–32, ECF No. 47. It characterized
Simec’s difficulties this way:
Grupo Simec informed Commerce of its challenges early on and, while
the extension letters made minor updates to the effects of COVID-19 on
the respondent, these were essentially the same reasons that were
provided early on in the proceeding and had been considered by
Commerce. As such, Grupo Simec’s argument that Commerce failed to
consider the whole picture [is] inaccurate. Commerce was well aware of
Grupo Simec’s situation, particularly as none of the reasons for extension
requests to the supplemental questionnaire were novel.
IDM at 9–10, J.A. at 7,721–22, ECF No. 68 (emphases added). Letters announcing
additional deaths are not “minor updates.” And Commerce forthrightly
acknowledged at oral argument that Simec experienced more COVID difficulties than
any other pandemic-era respondent. Oral Arg. Tr. at 29:16–19, ECF No. 71 (The
Court: “[A]re you aware of any other administrative review engaged in during this
time period in which multiple key employees died during the administrative review?”
Ms. Westercamp: “I am not, Your Honor.”). The closest Commerce’s memorandum
comes to acknowledging Simec’s death toll is its statement, “[W]e … appreciated the
burden that Grupo Simec has previously expressed it was experiencing due to the
effects of COVID-19, including the loss of staff ….” IDM at 12, J.A. at 7,724, ECF No.
68. Read in the context of the remainder of the decision, a disinterested reader would
Consol. Court No. 1:22-cv-00202-SAV Page 35
likely surmise that Simec experienced normal workforce attrition, not three deaths
and a hospitalization. See id. (nowhere noting the hospitalization, the number of
employees “los[t],” the inability of outside counsel to travel to the location, etc.).
This is not merely a memorandum decision’s being “anodyne or perhaps
antiseptic.” Oral Arg. Tr. at 31:14–16, ECF No. 71 (Government counsel’s
characterization). This is an agency decision that failed to link the facts found to the
choice made. Many “novel” events occurred. It was Commerce’s job to acknowledge
that and explain how it took those sad novelties into account in making its decision
to reject Simec’s request for further time. Because Commerce failed to engage with
record evidence that detracts from its conclusion, its decision to deny Simec’s
extension request is also unsupported by substantial evidence. See 19 U.S.C. §
1516a(b)(1)(B)(i) (requiring determinations without substantial evidentiary support
to be set aside).
CONCLUSION
Commerce is granted broad authority to set and administer deadlines to
ensure it can issue results on a timely basis. Its discretion is not unlimited, however.
Cf. Grobest, 36 CIT at 123 (describing a court’s analysis of whether Commerce’s
rejection of an untimely filing is an abuse of discretion as “necessarily case specific”).
Despite its claim that Simec was unreasonably slow, Commerce gave Simec five fewer
days than Deacero received to respond to 175 more supplemental questions than
Deacero answered.7 Simec submitted answers for all but six questions despite facing
7 Simec received its A–C Supplemental Questionnaire on July 28, 2021, and submitted its
A&D Supplemental Questionnaire responses on September 10, 2021, for a total of 45 calendar
Consol. Court No. 1:22-cv-00202-SAV Page 36
unprecedented hardships because of COVID-19’s toll in Mexico. Commerce failed to
acknowledge the compounding difficulties Simec faced, and it cut Simec’s opportunity
to provide evidence short while allowing Deacero the opportunity to answer questions
for an additional two months. Because Commerce abused its discretion in denying
Simec’s extension request and its analysis is unsupported by substantial evidence,
the Court GRANTS Plaintiffs’ Motions for Judgment on the Agency Record. It is
further:
ORDERED that Commerce shall reopen the record and accept the information
Simec proffered on October 18, 2021. Commerce, in its discretion, may request any
other information it may need after reviewing the October 18 data;
ORDERED that Commerce shall conduct a new analysis to determine if facts
available or adverse inferences are warranted;
days working on supplemental questionnaires. Simec A–C Questionnaire, J.A. at 4,873, ECF
No. 68; Simec A&D Questionnaire Resp. (Sept. 10, 2021) at 1, J.A. at 86,713, ECF No. 66.
Deacero received its First Supplemental Questionnaire on September 7, 2021, and submitted
responses on September 20, 2021. See Deacero First Suppl. Questionnaire, J.A. at 4,962,
ECF No. 68; Deacero First Suppl. Questionnaire Resp. (Sept. 20, 2021), J.A. at 6,515, ECF
No. 68. Deacero received its Second Supplemental Questionnaire on September 22, 2021,
and submitted the last of its responses on October 19, 2021. See Deacero Second Suppl.
Questionnaire, J.A. at 6,589, ECF No. 68; Deacero Second Suppl. Questionnaire Resp. (Oct.
19, 2021), J.A. at 6,629, ECF No. 68. Deacero received its Third Supplemental Questionnaire
on November 3, 2021, and submitted responses on November 10, 2021. See Deacero Third
Suppl. Questionnaire, J.A. at 7,120, ECF No. 68; Deacero Third Suppl. Questionnaire Resp.
(Nov. 10, 2021), J.A. at 7,162, ECF No. 68. Thus, Deacero spent fourteen, twenty-eight, and
eight days responding to three questionnaires –– totaling fifty calendar days working on its
supplemental questionnaires.
In examining the respective supplemental questionnaire periods, the Court used the
timestamped file date and included both the date a questionnaire was sent and the date the
company filed responses as working days.
Consol. Court No. l:22-cv-00202-SAV Page 37
ORDERED that Commerce shall reanalyze the non-selected company rate
and make any needed adjustments; and it is further
ORDERED that Commerce shall file its Remand Determination with the
Court within 120 days of today's date;
ORDERED that all Plaintiffs shall have 30 days from the filing of the Remand
Determination to submit comments to the Court;
ORDERED that Defendant shall have 30 days from the date of Plaintiffs'
filing of comments to submit a response;
ORDERED that Defendant-Intervenor shall have 15 days from the date of
Defendant's filing of comments to submit its response; and
ORDERED that all Plaintiffs shall have 15 days from the date of Defendant-
Intervenor's filing to submit any reply.
SO ORDERED.
Stephen Alexander Vaden, Judge
Dated: (k.i). Z~ z.oz.'f
New York, New York