Tau-Ken Temir Llp, Jsc Nmc Tau-Ken Samruk, Ministry of Trade v. United States, Globe Specialty Metals, Inc., Mississippi Silicon LLC

United States Court of Appeals
for the Federal Circuit
______________________
TAU-KEN TEMIR LLP, JSC NMC TAU-KEN
SAMRUK, MINISTRY OF TRADE AND
INTEGRATION OF THE REPUBLIC OF
KAZAKHSTAN,
Plaintiffs-Appellants
v.
UNITED STATES, GLOBE SPECIALTY METALS,
INC., MISSISSIPPI SILICON LLC,
Defendants-Appellees
______________________
2022-2204
______________________
Appeal from the United States Court of International
Trade in No. 1:21-cv-00173-LMG, Senior Judge Leo M.
Gordon.
______________________
Decided: August 4, 2025
______________________
PETER JOHN KOENIG, Squire Patton Boggs (US) LLP,
Washington, DC, argued for plaintiffs-appellants.
BRENDAN DAVID JORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee
United States. Also represented by BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM; SHANNI
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TAU-KEN TEMIR LLP v. US 2
ALON, United States Department of Commerce, Washing-
ton, DC.
JENNIFER MICHELE SMITH-VELUZ, The Bristol Group
PLLC, Washington, DC, argued for defendants-appellees
Globe Specialty Metals, Inc., Mississippi Silicon LLC. Also
represented by ADAM H. GORDON, BENJAMIN JACOB BAY.
______________________
Before DYK, PROST, and HUGHES, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST.
Dissenting opinion filed by Circuit Judge HUGHES.
PROST, Circuit Judge.
Appellants Tau-Ken Temir LLP, JSC NMC Tau-Ken
Samruk (individually or collectively, “Tau-Ken”), and Min-
istry of Trade and Integration of the Republic of Kazakh-
stan appeal from a final judgment of the U.S. Court of
International Trade (“Trade Court”). The Trade Court sus-
tained the U.S. Department of Commerce’s (“Commerce”)
final determination that the Republic of Kazakhstan sub-
sidized Tau-Ken’s production of silicon metal in a manner
that warranted a countervailable subsidy rate of 160% for
the subject merchandise. Commerce reached this determi-
nation because it had rejected, as untimely, a Tau-Ken sub-
mission that was filed 1 hour and 41 minutes past the
deadline. For the reasons below, we vacate the Trade
Court’s judgment and remand.
BACKGROUND
I
A
On July 20, 2020, Commerce initiated—on the basis of
a petition from appellees Globe Specialty Metals, Inc. and
Mississippi Silicon LLC (collectively, “petitioners”)—an in-
vestigation as to whether silicon-metal imports from the
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TAU-KEN TEMIR LLP v. US 3
Republic of Kazakhstan benefited from countervailable
subsidies provided by that country’s government.1 Silicon
Metal from the Republic of Kazakhstan: Initiation of Coun-
tervailing Duty Investigation, 85 Fed. Reg. 45173,
45175–76 (July 27, 2020) (notice of initiation of counter-
vailing-duty investigation (“CVD investigation”) under
19 U.S.C. § 1671a(c)). The CVD investigation named Tau-
Ken as a mandatory respondent. Id. at 45176. In a CVD
investigation, Commerce must make a preliminary deter-
mination—usually within 65 days of the investigation’s in-
itiation—as to whether countervailable subsidies are being
provided. See 19 U.S.C. § 1671b(b). Here, that due date
was September 23.
Commerce issued an initial questionnaire on July 23.
A cover letter accompanying the questionnaire explained
that, with limited exceptions, any response must be filed in
its entirety by 5:00 p.m. on the relevant date using Com-
merce’s electronic-filing system (ACCESS). J.A. 604–05.
Tau-Ken’s response to the affiliate portion of the ques-
tionnaire was due August 6. Tau-Ken timely filed its re-
sponse to that portion. Commerce later issued
supplemental questionnaires concerning affiliates, with re-
sponse due dates of August 18 and September 8. Tau-Ken
timely filed its responses to those as well.
Tau-Ken’s response to the subsidy portion of the ques-
tionnaire—the response relevant here—was due August
31. On August 25, Tau-Ken requested a two-week exten-
sion of the deadline—from August 31 to September 14.
J.A. 882. In support, it stated that (1) the questionnaire
sought “a huge amount of information from many parties,”
(2) the individuals responding to the questionnaire were
1 Unless otherwise noted, subsequently referenced
dates from the instant Commerce proceeding are in the
year 2020, and all times of day refer to Eastern Time.
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TAU-KEN TEMIR LLP v. US 4
“new to the process, as the prior individuals doing so ha[d]
left,” and (3) “COVID[-]19 issues [were] hampering the pro-
cess.” J.A. 882. Two days later, on August 27, Commerce
granted a “partial” extension—setting the new deadline as
September 10 instead of the requested September 14.
J.A. 932.
On September 1, Commerce postponed its preliminary-
determination due date by an additional 65 days—from
September 23 to November 27. Silicon Metal from the Re-
public of Kazakhstan: Postponement of Preliminary Deter-
mination in the Countervailing Duty Investigation, 85 Fed.
Reg. 55412, 55412 (Sept. 8, 2020); J.A. 2191; see 19 U.S.C.
§ 1671b(c)(1)(A) (authorizing such a postponement).
Then, on September 9, Tau-Ken requested another ex-
tension, this time for one week—from September 10 to 17.
This request generally cited the same reasons as the previ-
ous one (i.e., the amount of information sought from vari-
ous entities, the responding individuals’ newness to the
process as a result of personnel departures, and COVID-
19), but it also observed that Commerce had since post-
poned the preliminary-determination due date. J.A. 1091.
That same day, Commerce granted another “partial” exten-
sion—setting the new deadline as September 15 instead of
the requested September 17. J.A. 1142.
On September 15—the response deadline—Tau-Ken’s
counsel encountered what he characterized as “tech-
nical/computer issues.” See J.A. 1306. Upon determining
that these issues were going to jeopardize a timely filing,
he requested, at 3:50 p.m., another extension—this time for
one day. J.A. 1306 (representing that counsel had “now re-
ceived [a] full response but [there] are some technical/com-
puter issues to resolve to file it”; also referencing the prior
extension requests as indicating the need for time to an-
swer the questionnaire); J.A. 2418 (representing that coun-
sel filed the one-day-extension request “as soon as it was
apparent” that meeting the 5:00 p.m. deadline would not
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TAU-KEN TEMIR LLP v. US 5
be possible); see also J.A. 1815, 2682–83. Under Com-
merce’s policy, if a party facing a 5:00 p.m. deadline re-
quests an extension before that time, and—as apparently
happened here—Commerce is unable to notify the party of
the request’s disposition by 5:00 p.m., the deadline is auto-
matically extended until 8:30 a.m. the next business day.
See J.A. 204 (citing Extension of Time Limits, 78 Fed. Reg.
57790, 57792 (Sept. 20, 2013)); see also Oman Fasteners,
LLC v. United States, 125 F.4th 1068, 1088 (Fed. Cir. 2025)
(observing that Commerce has stated but not codified this
policy).
So, the deadline became September 16 at 8:30 a.m. At
5:31 a.m. on September 16, Tau-Ken’s counsel began the
ACCESS filing process. The response’s submission, how-
ever, was not completed until 10:11 a.m.—1 hour and
41 minutes past the 8:30 a.m. deadline.
B
The next day, Tau-Ken’s counsel followed up the one-
day-extension request by sending Commerce examples of
emails that he had received from the ACCESS system,
which he said “illustrate[d] technical filing issues” he was
facing. J.A. 1356–58; see also Tau-Ken Temir LLP v.
United States, 587 F. Supp. 3d 1346, 1353 (Ct. Int’l Trade
2022).
Two weeks later, on October 1, Commerce notified Tau-
Ken that it was rejecting Tau-Ken’s September 16 submis-
sion. J.A. 1712–13. Commerce observed that, although the
deadline was at 8:30 a.m., Tau-Ken’s counsel was filing
documents through at least 10:10 a.m. See J.A. 1712. Com-
merce added, “[m]oreover,” that Tau-Ken’s submission was
incomplete because it was “missing the business proprie-
tary [BPI] versions of Exhibits III-A-1 through III-A-8, and
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TAU-KEN TEMIR LLP v. US 6
the beginning portion of Exhibit III-A-9.” J.A. 1712.2 Ac-
cordingly, because Tau-Ken’s response was not filed “in its
entirety” by the deadline, Commerce rejected it as “un-
timely filed.” J.A. 1712–13.
Tau-Ken sought reconsideration the next day. In doing
so, it expanded on the technical issues that led to the un-
timely filing, such as “[e]mbedded info [that] ACCESS re-
jects, file corruption, Russian making searchable PDFs
difficult, etc.” J.A. 1815. Tau-Ken also explained that it
had adhered to Commerce’s advice to begin filing no later
than 4:00 p.m.—Commerce’s “only clear time benchmark
given,” according to Tau-Ken. J.A. 1815 & n.3 (citing U.S.
Dep’t of Commerce, ACCESS Handbook on Electronic Fil-
ing Procedures, at 16 (Aug. 31, 2020)). Tau-Ken further
noted that Commerce “still ha[d] not decided” Tau-Ken’s
timely filed, September 15 one-day-extension request.
J.A. 1816; see also J.A. 1817 (arguing that “Commerce had
and still has the authority to consider and accept [Tau-
Ken’s] outstanding, still not decided, timely filed extension
request”).
Nearly seven weeks later, on November 19, Commerce
rejected Tau-Ken’s reconsideration request. It reiterated
that Tau-Ken’s September 16 submission was “incomplete
and untimely.” J.A. 2139. As to Tau-Ken’s one-day-exten-
sion request, Commerce explained that it came
2 The public versions of these exhibits were undis-
putedly filed. Tau-Ken’s counsel has represented, without
contradiction, that BPI versions were missing because he
inadvertently twice uploaded a JSC NMC Tau-Ken
Samruk document instead of the correct Tau-Ken Temir
LLP document. See, e.g., Tau-Ken Temir, 587 F. Supp. 3d
at 1354; J.A. 1921; J.A. 2420. Tau-Ken’s counsel has also
represented, again without contradiction, that he could
quickly supply the correct document. See J.A. 1921–22;
J.A. 2420.
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TAU-KEN TEMIR LLP v. US 7
“approximately one hour before the close of business, too
late for Commerce to reply before the deadline.” J.A. 2139.
Commerce issued its preliminary determination on No-
vember 27. It preliminarily determined that, because of
the untimeliness of Tau-Ken’s submission (and its result-
ing rejection and absence from the record), Commerce
would (1) resort to “facts otherwise available” in assessing
the appropriate countervailable subsidy rate, see J.A. 2195
(citing 19 U.S.C. § 1677e(a)(1), (2)(B)–(C)), and (2) apply an
inference adverse to Tau-Ken in selecting from the facts
otherwise available, see id. (citing 19 U.S.C. § 1677e(b)).
Applying this adverse inference, Commerce preliminarily
determined Tau-Ken’s countervailable subsidy rate to be
120%.
II
Nearly three months later, on February 22, 2021, Com-
merce issued its final determination.3 The final determi-
nation maintained Commerce’s decision to apply an
adverse inference when selecting from facts otherwise
available, due to Tau-Ken’s untimely submission. See
J.A. 212–16. Applying this adverse inference, Commerce
3 Generally, in a CVD investigation, Commerce must
make a final determination within 75 days of its prelimi-
nary determination, see, e.g., 19 U.S.C. § 1671d(a)(1),
which would have been February 10, 2021. Here, however,
Commerce aligned the final-determination due date in this
CVD investigation with that in concurrent antidumping in-
vestigations, which resulted in a due date of February 22,
2021. See J.A. 2193 (citing 19 U.S.C. § 1671d(a)(1) and
19 C.F.R. § 351.210(b)(4)); J.A. 191.
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TAU-KEN TEMIR LLP v. US 8
finally determined Tau-Ken’s countervailable subsidy rate
to be 160%.4
Relevant here, the final determination set forth Com-
merce’s ultimate reasoning for rejecting (and continuing to
reject) Tau-Ken’s September 16 submission. For example,
although Tau-Ken had cited its personnel’s newness to the
process, COVID-19, and “computer/technical issues,” Com-
merce explained that it had “already granted multiple ex-
tensions as a result of these issues.” J.A. 205. Commerce
also emphasized that, because Tau-Ken filed its one-day-
extension request at 3:50 p.m. on the September 15 dead-
line, Commerce had only limited time “to notice that an ex-
tension request had been filed and to affirmatively respond
to it.” See J.A. 205; see also J.A. 207 (referencing the “last-
minute extension request which we did not have time to
evaluate”). And it further faulted Tau-Ken’s “experienced”
counsel for not attempting to contact the ACCESS help
desk or any other Commerce official before the close of busi-
ness. See J.A. 205–06.
In addition to these reasons, Commerce relied heavily
on this court’s decision in Dongtai Peak. See J.A. 207–08
(discussing Dongtai Peak Honey Indus. Co. v. United
States, 777 F.3d 1343 (Fed. Cir. 2015)). It concluded that
the facts here were “very similar to those in Dongtai Peak,
which set new precedent regarding the acceptance of late
submissions.” J.A. 207; see also J.A. 208 (“Since Dongtai
Peak, more recent decisions by the [Trade Court] support
Commerce’s findings in this investigation regarding our
4 The final rate was higher than the preliminary rate
because the final determination found that Tau-Ken bene-
fited from two additional countervailable programs that
were not contemplated by the preliminary rate. See
J.A. 227–29, 243–45.
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TAU-KEN TEMIR LLP v. US 9
decision to reject [Tau-Ken’s] untimely[ ]filed question-
naire response . . . .”).
Commerce finally responded to two other issues that
Tau-Ken had raised. First, in response to Tau-Ken’s argu-
ment that Commerce could not reject the September 16
submission simply due to some missing BPI versions of ex-
hibits, Commerce explained that this argument was
“moot,” J.A. 209, because Commerce was rejecting the sub-
mission solely because of its belatedness, see id. (“Com-
merce is continuing to base its determination to reject
[Tau-Ken’s] . . . questionnaire response as untimely based
on the lateness of the submission, rather than the content
of the BPI version of the response.” (emphasis added)). Sec-
ond, in response to Tau-Ken’s argument that Commerce
still had not decided Tau-Ken’s one-day-extension request,
Commerce disagreed; it reasoned that the response’s rejec-
tion itself (and Commerce’s explanations for it) “repre-
sent[ed] a clear and direct response” to the extension
request. J.A. 210.
III
Tau-Ken sought judicial review at the Trade Court,
which sustained Commerce’s final determination. Tau-
Ken Temir, 587 F. Supp. 3d at 1349.
The Trade Court first set forth the applicable regula-
tory provisions concerning extensions of time and untimely
filed responses. See id. at 1351–52. As relevant here, un-
less Commerce is expressly precluded by statute from do-
ing so, it may—for “good cause”—extend a deadline if a
party timely files (i.e., files before the deadline) a written
extension request stating the reasons therefor. See
19 C.F.R. § 351.302(b)–(c).5 And, unless Commerce so
5 An extension request filed after the deadline is con-
sidered untimely and “will not be considered unless the
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TAU-KEN TEMIR LLP v. US 10
extends a deadline, it “will not consider or retain in the of-
ficial record of the proceeding” “[u]ntimely filed factual in-
formation, written argument, or other material” that it
rejects. See id. § 351.302(d)(1)(i); see also id.
§ 351.302(d)(2) (providing that Commerce “will reject such
information, argument, or other material . . . with, to the
extent practicable, written notice stating the reasons for
rejection”).
The Trade Court then considered whether Tau-Ken
had waived (or forfeited) a challenge to Commerce’s denial
of Tau-Ken’s one-day-extension request by failing to de-
velop an argument regarding the regulatory “good cause”
standard in its briefing before that court. See Tau-Ken
Temir, 587 F. Supp. 3d at 1352. The court assumed, how-
ever, that Tau-Ken had combined (1) arguments regarding
“good cause” for the one-day-extension request with (2) ar-
guments challenging Commerce’s rejection of the Septem-
ber 16 submission. Id. at 1353. It therefore treated a
challenge to Commerce’s denial of the one-day-extension
request as preserved.
Relevant to whether Commerce abused its discretion in
rejecting the September 16 submission, the Trade Court
deemed the parties’ “differing interpretations” of Dongtai
Peak to be at “the core of [their] dispute.” Id. at 1357. And,
after likening this case to Dongtai Peak (to Tau-Ken’s det-
riment), the court concluded that Commerce had not
abused its discretion in rejecting the submission. See id.
at 1357–59. The court also sustained Commerce’s decision
party demonstrates that an extraordinary circumstance
exists.” See id. § 351.302(c). An extraordinary circum-
stance is an “unexpected event” that “[c]ould not have been
prevented if reasonable measures had been taken” and
“[p]recludes a party or its representative from timely filing
an extension request through all reasonable means.” Id.
§ 351.302(c)(2).
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TAU-KEN TEMIR LLP v. US 11
to apply an adverse inference when selecting from facts
otherwise available, due to Tau-Ken’s untimely submis-
sion. See id. at 1362–64.
Tau-Ken timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(5).
DISCUSSION
We review final decisions of the Trade Court involving
a Commerce countervailing-duty determination de novo,
reviewing Commerce’s determination under the same
standard that the Trade Court applied. See Habas Sinai
Ve Tibbi Gazlar Istihsal Endustrisi A.S. v. United States,
992 F.3d 1348, 1352 (Fed. Cir. 2021).
Under the applicable standard, we will uphold Com-
merce’s rulings unless they are “unsupported by substan-
tial evidence on the record, or . . . otherwise not in
accordance with law.” See id. (citing 19 U.S.C.
§ 1516a(b)(1)(B)(i)).
That said, even in reviewing determinations that, like
this one, are covered by the standard of 19 U.S.C.
§ 1516a(b)(1)(B)(i), we have reviewed Commerce’s rejection
of submissions as untimely under its own deadlines for
abuse of discretion. See Goodluck India Ltd. v. United
States, 11 F.4th 1335, 1342 (Fed. Cir. 2021) (“Commerce
has discretion to establish and enforce time limits for sub-
mitting information . . . .”); Dongtai Peak, 777 F.3d at 1353
(concluding that Commerce “reasonably exercised its dis-
cretion in rejecting the requests and in enforcing the appli-
cable deadline”); NTN Bearing Corp. v. United States,
74 F.3d 1204, 1208 (Fed. Cir. 1995) (holding that it was “an
abuse of discretion” for Commerce to refuse to consider cor-
rection of errors “because of the ‘untimely’ submission of
the corrective information”); see also Oman Fasteners,
125 F.4th at 1084 (noting that we have applied the review
standard of the Administrative Procedure Act (“APA”),
5 U.S.C. § 706, to decisions covered by 19 U.S.C.
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TAU-KEN TEMIR LLP v. US 12
§ 1516a(b)(1)(B)(i), and that the APA standard provides for
setting aside agency decisions that are “an abuse of discre-
tion”). We therefore review Commerce’s rejection of Tau-
Ken’s response as untimely for abuse of discretion.
Our discussion proceeds as follows. First, we address
Tau-Ken’s preservation of certain arguments. Second,
given the influence Dongtai Peak had on Commerce and
the Trade Court, we separately discuss that opinion. Fi-
nally, we articulate and apply considerations for evaluat-
ing whether Commerce abused its discretion—and
ultimately conclude that it did.
I
Initially, the government maintains that Tau-Ken for-
feited two of its arguments on appeal by failing to preserve
them before Commerce or the Trade Court.6 We agree with
the government as to one but not the other.
As to the first, Tau-Ken argues that Commerce erred
by not granting the full extent of its earlier extension re-
quests—i.e., those filed August 25 and September 9. Had
Commerce done so, Tau-Ken says, the response deadline
would have been September 17, which would have made
the September 16 submission timely (in this counterfactual
scenario). As the government observes, however, Tau-Ken
did not challenge Commerce’s denials of these extension re-
quests at the Trade Court. We therefore deem this argu-
ment forfeited.
As to the second, Tau-Ken argues that Commerce erred
by denying its one-day-extension request. The government
6 Although the government characterizes these ar-
guments as having been “waived,” Gov’t Br. 14, 18, we un-
derstand it to mean “forfeited.” See In re Google Tech.
Holdings LLC, 980 F.3d 858, 862–63 (Fed. Cir. 2020) (ex-
plaining the distinction).
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TAU-KEN TEMIR LLP v. US 13
contends that Tau-Ken forfeited this argument by not ex-
pressly arguing the “good cause” standard of 19 C.F.R.
§ 351.302(b) to the Trade Court—a failure that, according
to the government, means that Tau-Ken is left to challenge
only Commerce’s rejection of its untimely September 16
submission. See Gov’t Br. 17–19, 23. The government’s
contention is unconvincing. At the outset, it is not clear
that, for purposes of our analysis in this case, there is a
meaningful distinction between these two issues—i.e., be-
tween whether Commerce should have granted the one-
day-extension request (thus rendering the submission
timely), or simply accepted the submission despite its un-
timeliness.7 But even if we assumed that there is such a
distinction, we view Tau-Ken’s Trade Court briefing as
having fairly developed a challenge to Commerce’s denial
of the one-day-extension request—despite the scarcity of
express mentions of the “good cause” standard. See, e.g.,
J.A. 2679 (identifying issues such as “Commerce[’s] vio-
lat[ion] [of] court precedent . . . [and] its own precedent and
practice when deciding [Tau-Ken’s] extension request”),
2682–84 (explaining the technical issues giving rise to the
one-day-extension request), 2686 (“Commerce never says
that granting [Tau-Ken’s] one-day[-]extension request . . .
would have hindered its investigation . . . .”), 2701 (arguing
that “Commerce’s failure to [grant Tau-Ken’s one-day-ex-
tension request]” was “an abuse of discretion”).
At bottom, we view the issue in this case as whether,
under the circumstances—including Tau-Ken’s timely
7 That Commerce never separately explained why it
denied the extension request—and instead maintained
that its rejection of the submission itself (and accompany-
ing explanations) “represent[ed] a clear and direct re-
sponse” to the request, J.A. 210—casts additional doubt on
whether there is any meaningful distinction between these
two issues for purposes of our analysis in this case.
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TAU-KEN TEMIR LLP v. US 14
filing of its one-day-extension request—Commerce abused
its discretion in rejecting Tau-Ken’s September 16 submis-
sion as untimely.
II
Commerce and the Trade Court relied heavily on Dong-
tai Peak in rejecting (and sustaining the rejection of) Tau-
Ken’s September 16 submission. That reliance was mis-
placed.
In Dongtai Peak, Commerce issued the respondent a
questionnaire with an April 17 response deadline.
777 F.3d at 1347 (discussing the Supplemental Question-
naire). That deadline passed without a response or exten-
sion request from the respondent. It was not until two days
later, on April 19, that the respondent filed an extension
request—seeking ten more days from the earlier deadline,
to April 27. In support of this untimely request, the re-
spondent cited an overlapping deadline for other responses,
a national holiday, and issues with its computers. Then,
on April 27, the respondent filed another extension re-
quest, this time for one day. It ultimately filed its response
on April 27 after close of business. Id.
Commerce denied the respondent’s extension requests
and rejected the untimely filed response. It reasoned that
the respondent “provided no explanation as to why it was
unable to file its extension request in a timely manner prior
to the deadline for its questionnaire response.” Id.
On appeal, we affirmed. We concluded that Commerce
“properly found” that the respondent’s April 19 extension
request “did not demonstrate why [it] was unable to file
timely its extension request.” Id. at 1351. “Indeed, all of
the causes of delay noted in [the extension request] were
known to [respondent] prior to the April 17[] deadline, and
did not prevent [it] from filing an extension request before
that date.” Id. (noting that the respondent was closed for
the national holiday from April 5 to 8, the computer
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TAU-KEN TEMIR LLP v. US 15
difficulties occurred sometime between April 1 and 4, and
the allegedly overlapping deadline was April 9). “Thus,
Commerce reasonably determined [that respondent] was
entirely capable of at least submitting an extension request
on time, but simply failed to do so; therefore, good cause
did not exist to retroactively extend the deadline.” Id.
at 1352. Ultimately, we concluded that, “because [respond-
ent] failed to establish good cause with respect to its failure
to submit its extension requests in a timely manner, Com-
merce reasonably exercised its discretion in rejecting the
requests and in enforcing the applicable deadline.” Id.
at 1353.
In affirming, we rejected the respondent’s various ar-
guments. For example, although the respondent com-
plained that Commerce did not show why the April 19
extension request did not establish good cause, we ex-
plained that “Commerce was not required to demonstrate
good cause for rejecting [respondent’s] untimely submis-
sions.” Id. at 1352; see also id. (further explaining that “it
is not for [respondent] to establish Commerce’s deadlines
or to dictate to Commerce whether and when Commerce
actually needs the requested information” (cleaned up)).
We also confirmed that the respondent’s due-process rights
had not been violated, because it had notice of the deadline
and an opportunity to reply. See id. at 1353.
Contrary to some suggestions from Commerce and pe-
titioners in this case, Dongtai Peak was not a transforma-
tive case in the law of extension requests and untimely
submissions. Instead, it was a straightforward application
of basic principles and a deferential standard of review to
the facts of that case—on an issue whose permissible reso-
lution depends greatly on a case’s particular facts.
And here, the facts are quite different from those in
Dongtai Peak. One important and apparent difference is
that, unlike the respondent in Dongtai Peak, who filed an
untimely extension request (i.e., two days after the
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TAU-KEN TEMIR LLP v. US 16
deadline), Tau-Ken’s one-day-extension request was filed
before the deadline and was thus timely.
Accordingly, and as discussed further below, although
we are guided by the principles articulated in Dongtai
Peak, the key factual differences between that case and
this one mean that the result in Dongtai Peak does not dic-
tate the result here.
III
A
“Discretion is abused if, for example, its exercise rests
on a clear error of judgment in the consideration of the rel-
evant factors.” Oman Fasteners, 125 F.4th at 1084 (cleaned
up). Therefore, to know whether Commerce abused its dis-
cretion in this way, we must know the relevant considera-
tions.
In Grobest & I–Mei Industrial (Vietnam) Co. v. United
States, the Trade Court articulated and applied—with ref-
erence to our case law—considerations it deemed relevant
to whether Commerce abused its discretion in rejecting an
untimely submission. 815 F. Supp. 2d 1342, 1365–67 (Ct.
Int’l Trade 2012). Recognizing that this issue’s analysis is
“necessarily case specific,” the court was “guided first by
the remedial, and not punitive, purpose of the antidumping
statute and the statute’s goal of determining margins ‘as
accurately as possible.’” Id. at 1365 (cleaned up) (first cit-
ing Chaparral Steel Co. v. United States, 901 F.2d 1097,
1103–04 (Fed. Cir. 1990); and then quoting Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir.
1990)).8 It also considered the “burden imposed upon
8 Although the Trade Court in Grobest was referenc-
ing antidumping laws when describing their remedial-not-
punitive purpose and noting the goal of determining
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TAU-KEN TEMIR LLP v. US 17
[Commerce] by accepting the late submission.” Id. (quoting
Usinor Sacilor v. United States, 872 F. Supp. 1000, 1008
(Ct. Int’l Trade 1994)); see id. at 1367 (determining that
“every indication suggests that the burden of reviewing the
[late submission] would not [have been] great” and that
“the burden on Commerce [was] not sufficient in this
case”). It further considered “the need for finality” at the
final stage of the proceeding. Id. at 1365 (quoting Timken
U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed. Cir.
2006)); see also NTN Bearing, 74 F.3d at 1208 (“In some
instances, a tension may arise between finality and [the]
correct result.”). And, in its analysis, it considered the ac-
tions of the late-filing party. The court determined that the
party was “diligent” by filing its late submission “promptly
upon discovering its error,” and the court “credit[ed] these
efforts to cooperate” in the proceeding. Grobest, 815 F.
Supp. 2d at 1367; see Dongtai Peak, 777 F.3d at 1351–52
(considering the actions of, and reasons given by, the late-
filing respondent in affirming Commerce’s determination
that “good cause did not exist to retroactively extend the
deadline”).
We deem the general considerations articulated and
applied in Grobest sensible and appropriate for evaluating
whether Commerce has abused its discretion by rejecting a
submission as untimely under its own deadlines. The
margins as accurately as possible, id., countervailing-duty
laws have that same purpose and accuracy goal. See
Guangdong Wireking Housewares & Hardware Co. v.
United States, 745 F.3d 1194, 1206 (Fed. Cir. 2014) (“[T]he
primary purpose of antidumping and countervailing duties
generally is remedial, not punitive.” (emphasis in origi-
nal)); see also Gov’t of Que. v. United States, 105 F.4th 1359,
1370 (Fed. Cir. 2024) (acknowledging “Commerce’s statu-
tory obligation to calculate subsidy rates as accurately as
possible” (cleaned up)).
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TAU-KEN TEMIR LLP v. US 18
government, for its part, agrees that these considerations
are relevant to the inquiry. See Oral Arg. at 38:14–39:09.9
And while petitioners stress that Grobest predates our de-
cision in Dongtai Peak, Pet’rs’ Br. 38, they do not explain
why that fact undermines the relevance of these consider-
ations—nor do we think it does, at least for the reasons al-
ready discussed above.
Therefore, when evaluating whether Commerce
abused its discretion by rejecting a submission as untimely
under its own deadlines, relevant considerations generally
include: (1) the remedial-not-punitive purpose of the anti-
dumping and countervailing-duty laws and the goal of de-
termining margins or rates as accurately as possible;
(2) any burden on Commerce in the instant proceeding that
would result from accepting the untimely submission;
(3) whether any finality concerns would be implicated by
accepting the untimely submission; and (4) the late-filing
party’s efforts (whether as to the untimely submission or
throughout the proceeding) and its reasons for the submis-
sion’s untimeliness.10 These considerations are non-ex-
haustive, and the weight of any individual consideration
may vary depending on the circumstances. But, as a gen-
eral matter, these considerations provide a useful frame-
work to guide Commerce’s use of its discretion and judicial
review thereof.
9 No. 22-2204, https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=22-2204_01102025.mp3.
10 Relevant to this last consideration is whether, for
the untimely submission, the late-filing party timely filed
an extension request in accordance with 19 C.F.R.
§ 351.302(c), given the regulation’s more exacting “extraor-
dinary circumstance” standard for untimely filed extension
requests, see supra note 5.
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TAU-KEN TEMIR LLP v. US 19
B
Applying these considerations to this case, we conclude
that Commerce made a clear error of judgment and thus
abused its discretion in rejecting Tau-Ken’s September 16
submission.
Initially, there is no dispute that Commerce’s rejection
significantly impeded its goal of determining a countervail-
able subsidy rate as accurately as possible. The September
16 submission was Tau-Ken’s response to the subsidy por-
tion of the initial questionnaire, which goes to the heart of
whether and how Tau-Ken benefitted from countervailable
subsidies. See, e.g., J.A. 684–93. Indeed, Commerce freely
acknowledged that the September 16 submission “con-
tained vital information.” J.A. 208; see also id. (noting that
the initial questionnaire “requests crucial information re-
garding the use of subsidy programs under investiga-
tion . . . that is used in the calculation of subsidy rates”);
J.A. 2195 (Commerce’s preliminary determination observ-
ing that full questionnaire responses were “necessary to de-
termine the degree to which [Tau-Ken was] provided
countervailable subsidies”). By rejecting the September 16
submission, Commerce deprived itself of information that
was vital to calculating an accurate rate.
Tau-Ken also argues that accepting the 1-hour-and-41-
minute-late September 16 submission would not have bur-
dened Commerce in this CVD investigation or otherwise
hindered the investigation’s timely completion. In re-
sponse, the government does not identify any such burden
or hindrance; instead, it says that Tau-Ken’s position “fails
to account for the wide discretion afforded to Commerce in
establishing its deadlines and in determining the time in
which it needs information.” Gov’t Br. 26. We agree that
Commerce has wide discretion in this regard. But that dis-
cretion “has limits.” Goodluck India, 11 F.4th at 1342. And
the government’s invocation of generic “wide discretion”
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TAU-KEN TEMIR LLP v. US 20
does not advance the inquiry into whether Commerce
abused that discretion in this case.
Tau-Ken further argues that accepting the September
16 submission would not have implicated any finality con-
cerns, given that September 16 was well before Com-
merce’s February 22, 2021 final determination. The
government gives the same response: Commerce has wide
discretion. Gov’t Br. 26. Again, however, this generic ob-
servation is largely unhelpful in resolving the issue in this
case. And, in any event, we agree with Tau-Ken that no
finality concerns would have been implicated by accepting
the September 16 submission, because September 16 was
more than two months before the preliminary determina-
tion and more than five months before the final determina-
tion.11 See Goodluck India, 11 F.4th at 1343 (observing
that “there are no finality concerns” at a “preliminary de-
termination stage” (emphasis in original)); NTN Bearing
Corp., 74 F.3d at 1208 (noting that “preliminary determi-
nations are ‘preliminary’ precisely because they are subject
to change,” and “[t]hus, the tension between finality and
correctness simply did not exist at the time [the party] re-
quested correction”).
As to Tau-Ken’s efforts in this CVD investigation and
its reasons for the submission’s untimeliness, the govern-
ment has its criticisms, which we address below. We note,
however, that as to Tau-Ken’s efforts: (1) Tau-Ken had
timely filed several responses; (2) its September 16 submis-
sion was its first missed deadline; (3) Tau-Ken’s counsel
adhered to the ACCESS handbook’s advice not to begin fil-
ing after 4:00 p.m.; and (4) Tau-Ken filed its timely exten-
sion request soon after its counsel encountered technical
issues that seemed to jeopardize a timely filing. And, as to
11 Even if the final-determination due date had re-
mained February 10, 2021, see supra note 3, that still
would have been almost five months away.
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TAU-KEN TEMIR LLP v. US 21
Tau-Ken’s reasons for the submission’s untimeliness, we
note—as the Trade Court has elsewhere observed—that
“[n]o one who has confronted issues in using automated fil-
ing systems would dispute that unanticipated technical dif-
ficulties do sometimes occur.” Celik Halat ve Tel Sanayi
A.S. v. United States, 557 F. Supp. 3d 1348, 1362 (Ct. Int’l
Trade 2022).
C
The government initially defends Commerce’s rejection
of the September 16 submission with principles from Dong-
tai Peak. It argues that “Commerce [is] not required to
demonstrate good cause for rejecting . . . untimely submis-
sions,” Dongtai Peak, 777 F.3d at 1352, and that “it is not
for [respondent] to establish Commerce’s deadlines or to
dictate to Commerce whether and when Commerce actu-
ally needs the requested information,” id. (cleaned up).
These principles are certainly sound. The extension-seek-
ing party bears the burden to justify its request. See, e.g.,
19 C.F.R. § 351.302(b)–(c). And Commerce—not the par-
ties—sets the deadlines; parties cannot unilaterally decide
whether and when Commerce actually needs the infor-
mation it has requested. Yet, sound though these princi-
ples are, they do not relieve Commerce of adequately
explaining its denial of an extension request or its rejection
of an untimely submission when, as here, there are com-
pelling countervailing considerations.
Aside from these basic principles, the government de-
fends Commerce’s rejection by criticizing Tau-Ken’s efforts
and its reasons for the submission’s untimeliness. But,
given the rejection’s significant negative impact on accu-
racy, the apparent absence of any burden that accepting
the submission would have imposed on Commerce in this
CVD investigation, the lack of any finality implications,
and the other circumstances discussed above suggesting le-
gitimate efforts and reasons for the untimeliness, we view
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TAU-KEN TEMIR LLP v. US 22
these criticisms as insufficient to justify Commerce’s rejec-
tion—even under our deferential standard of review.
First, Commerce itself justified the rejection by ex-
plaining that Tau-Ken filed its one-day-extension request
too late in the day. According to Commerce, because that
request came at 3:50 p.m. on the original September 15 due
date, “Commerce had just over an hour to notice that an
extension request had been filed and to affirmatively re-
spond to it.” J.A. 205; see also J.A. 207 (similar). But the
government concedes that Commerce could have retroac-
tively granted the extension the next day (or sometime
thereafter). See Gov’t Br. 17. We therefore fail to see why
Commerce’s claimed inability to dispose of the extension
request before close of business on September 15 bears ma-
terially on whether it should have granted the request or
otherwise accepted the untimely submission.
In the same vein, the government likens Tau-Ken’s
one-day-extension request to the extension request in
Dongtai Peak. It maintains that here, just as in Dongtai
Peak, the respondent failed to demonstrate why it could not
have filed its request earlier. See Gov’t Br. 20 (citing Dong-
tai Peak, 777 F.3d at 1351). Yet this argument ignores key
factual differences between the two cases. For example, as
referenced above, our discussion in Dongtai Peak was fo-
cused on the extension request’s untimeliness—i.e., its
having been filed only after the deadline. See 777 F.3d
at 1351–52. We also observed that all of the causes of the
delay noted in the extension request were known to the re-
spondent before the deadline “and did not prevent [it] from
filing an extension request before that date.” Id. at 1351.
Specifically, in Dongtai Peak, the deadline was April 17,
the computer difficulties occurred sometime between April
1 and 4, and the previously known holiday and other dead-
line were between April 5 and 9. Id. Here, not only did
Tau-Ken timely file its one-day-extension request, but
there is also no suggestion that the “technical/computer
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TAU-KEN TEMIR LLP v. US 23
issues” it encountered on the deadline were known before
then—let alone several days before.
Second, the government argues that Commerce’s rejec-
tion was justified because Tau-Ken’s one-day-extension re-
quest was too “vague” as to the “technical/computer issues”
it encountered. E.g., Gov’t Br. 20–21. This purported jus-
tification has several problems. One, Commerce itself did
not rely on it. And absent certain exceptions—none of
which apply here—we will not uphold an agency’s action
on a ground that the agency itself did not invoke when it
took the action. See, e.g., SEC v. Chenery Corp., 318 U.S.
80, 87 (1943). Two, it is far from clear that, at the time
Tau-Ken’s counsel filed the one-day-extension request, he
even could have articulated the precise technical issues he
was encountering. Three, even if he could have, it would
not have been unreasonable for counsel—facing a rapidly
approaching deadline—to prioritize simply trying to file
the response over crafting a more robust explanation of
those issues in the extension request.12 Regardless, even
setting aside the Chenery problem, and even if we assumed
that the one-day-extension request both could, and should,
have been more granular as to the precise technical issues
counsel was encountering, the government’s quibble on
this point cannot reasonably overcome the more
12 We note that, after the dust settled and the re-
sponse was submitted on September 16, Tau-Ken provided
further information as to the precise nature of these issues.
See, e.g., J.A. 1356–58 (follow-up correspondence on Sep-
tember 17 including emails counsel had received from the
ACCESS system, which he said “illustrate[d] technical fil-
ing issues” he was facing); J.A. 1815 (reconsideration re-
quest citing “[e]mbedded info [that] ACCESS rejects, file
corruption, Russian making searchable PDFs difficult,
etc.”).
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TAU-KEN TEMIR LLP v. US 24
substantial considerations discussed above favoring ac-
cepting the untimely submission.
Third, the government criticizes Tau-Ken’s “experi-
enced” counsel for not attempting to contact the ACCESS
help desk or any other Commerce official in the midst of
the filing difficulties. See Gov’t Br. 21, 28. This criticism
is also insufficient in this case. The government identifies
no instruction requiring an attempt to contact the ACCESS
help desk in the midst of unanticipated filing difficulties—
let alone one requiring such an attempt on pain of having
an extension request denied. And besides, Tau-Ken did
timely file an extension request, which presumably
reached a relevant Commerce official. On the whole, the
government has not adequately explained why any failure
to attempt contacting the help desk or another Commerce
official in the midst of these unanticipated filing difficulties
demonstrates a meaningful lack of effort on Tau-Ken’s
part, so as to overcome the considerations favoring accept-
ing the untimely submission.
Fourth and finally, the government emphasizes that
Tau-Ken had already received “multiple” extensions. See
Gov’t Br. 26–27. Without context, the implication might be
that Tau-Ken had previously requested an extension, got
all the time it asked for, requested another extension, got
all of that time, and so on. But context matters here. Tau-
Ken originally asked for two additional weeks—to Septem-
ber 14. Commerce decided to give only ten days—to Sep-
tember 10. Then, as that deadline approached, Tau-Ken
asked for an additional week—to September 17. Com-
merce gave only five days—to September 15. All told, Tau-
Ken originally asked for a September 14 deadline, and it
ultimately received a September 15 one (setting aside the
automatic overnight extension to 8:30 a.m. the next day).
So, while it is true that Tau-Ken received “multiple” exten-
sions, under these circumstances, that fact is not particu-
larly suggestive of any persistent dawdling or other lack of
effort to comply with deadlines. Cf. Celik Halat, 557 F.
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TAU-KEN TEMIR LLP v. US 25
Supp. 3d at 1359 (noting, in a similar circumstance, that
the respondent had “made repeated, timely extension re-
quests” and that “Commerce was somewhat parsimonious
in granting those requests”).13
Tellingly, when government counsel was pressed at
oral argument to justify Commerce’s rejection, counsel
tended not to resort to any of the foregoing criticisms, but
instead, to the September 16 submission’s incompleteness
due to the missing BPI versions of certain exhibits.14 Set-
ting aside the strength of this purported justification, it has
a more fundamental problem: Commerce expressly de-
clined to rely on it. See, e.g., J.A. 209 (“Commerce is con-
tinuing to base its determination to reject [Tau-Ken’s] . . .
questionnaire response as untimely based on the lateness
of the submission, rather than the content of the BPI version
of the response.” (emphasis added)). Again, the general rule
applies: we will not uphold an agency’s action on a ground
that the agency itself did not invoke when it took the ac-
tion. See, e.g., Chenery, 318 U.S. at 87.
13 In the Celik Halat case, Commerce had rejected a
submission in its entirety—and, as a result, resorted to
facts otherwise available with an adverse inference—be-
cause a single exhibit was filed 21 minutes after the dead-
line. Id. at 1349, 1356. The Trade Court concluded that
“Commerce abused its discretion to impose a draconian
penalty upon [respondent] for a minor and inadvertent
technical error by its counsel that had no appreciable effect
on the . . . investigation.” Id. at 1362.
14 See, e.g., Oral Arg. at 35:07–31 (Court: “Why isn’t
it arbitrary to deny them one day?” Counsel: “Because [the
response] still wasn’t complete . . . .”), 48:35–48 (Court:
“How would one day—a one-day extension—prevent Com-
merce from meeting [its] deadlines?” Counsel: “You may
not like this answer, but . . . this comes into the incomplete
portion . . . .”); see also id. at 39:52–40:01.
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TAU-KEN TEMIR LLP v. US 26
* * *
In sum, we conclude that Commerce abused its discre-
tion in rejecting Tau-Ken’s September 16 submission.
Commerce’s resort to facts otherwise available and its ad-
verse inference were premised on its rejection of that sub-
mission, and the government has not developed any
argument in this appeal that some separate, independent
basis supports Commerce’s resort to facts otherwise avail-
able and an adverse inference. We therefore need not, and
do not, reach any party’s arguments concerning facts oth-
erwise available or an adverse inference.
Accordingly, we vacate the Trade Court’s judgment and
remand to the Trade Court with instructions to remand to
Commerce. On remand to Commerce, Commerce must ac-
cept the September 16 submission and proceed with its
CVD investigation accordingly. We have every confidence
that, on remand, Commerce can obtain the missing BPI
versions of exhibits discussed above, with what we expect
to be Tau-Ken’s ready assistance.
CONCLUSION
We have considered the government’s and petitioners’
remaining arguments and find them unpersuasive. For the
foregoing reasons, we vacate and remand for further pro-
ceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to appellants.
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United States Court of Appeals
for the Federal Circuit
______________________
TAU-KEN TEMIR LLP, JSC NMC TAU-KEN
SAMRUK, MINISTRY OF TRADE AND
INTEGRATION OF THE REPUBLIC OF
KAZAKHSTAN,
Plaintiffs-Appellants
v.
UNITED STATES, GLOBE SPECIALTY METALS,
INC., MISSISSIPPI SILICON LLC,
Defendants-Appellees
______________________
2022-2204
______________________
Appeal from the United States Court of International
Trade in No. 1:21-cv-00173-LMG, Senior Judge Leo M.
Gordon.
______________________
HUGHES, Circuit Judge, dissenting.
Tau-Ken submitted a late filing after receiving three
deadline extensions. Because I believe that Commerce has
extensive authority to enforce its own deadlines and that
its actions here did not constitute an abuse of discretion, I
respectfully dissent.
Commerce works on very tight deadlines; it is statuto-
rily required to make its final determination in an investi-
gation within 140 days of initiating that investigation.
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TAU-KEN TEMIR LLP v. US 2
Commerce will normally issue its preliminary results in an
investigation within 65 days of publication of the notice of
initiation in the Federal Register. 19 U.S.C. § 1671b(b);
19 C.F.R. § 351.205(b)(1). During this time, Commerce
may issue questionnaires to any person, including initial
and supplemental questionnaires. See 19 C.F.R.
§ 351.301(c)(1). “Initial questionnaire responses are due 30
days from the date of receipt of such questionnaire”; how-
ever, “[t]he time limit for response to individual sections of
the questionnaire, if the Secretary requests a separate re-
sponse to such sections, may be less than the 30 days allot-
ted for response to the full questionnaire.” 19 C.F.R.
§ 351.301(c)(1)(i). Issuing the preliminary determination in
a timely manner is important so that the parties to the in-
vestigation have sufficient time to respond; this gives par-
ties like Tau-Ken more due process. Commerce acted very
expediently in the present case: it initiated the relevant in-
vestigation on July 20, 2020, and issued its initial ques-
tionnaire to Tau-Ken three days later, on July 23, 2020.
Parties subject to an investigation are permitted to file
requests to extend the deadlines for making submissions to
Commerce. The party seeking an extension must file the
extension request before the established deadline and state
the reasons why there is “good cause” to extend the dead-
line. 19 C.F.R. § 351.302(b)–(c). Commerce previously
granted Tau-Ken two deadline extensions, and Tau-Ken re-
ceived another automatic 15.5-hour extension by filing its
request for a third extension.
As the majority explains, “[w]e . . . review Commerce’s
rejection of Tau-Ken’s response as untimely for abuse of
discretion.” Maj. Op. 12. “Abuse of discretion will be found
when there is an error of law, a clear error of judgment, or
findings that were clearly erroneous.” Yancheng Baolong
Biochemical Prods. Co. v. United States, 406 F.3d 1377,
1380 (Fed. Cir. 2005). Commerce did not abuse its discre-
tion or act contrary to law by refusing to wholesale adopt
Tau-Ken’s subjective view as to how much additional time
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TAU-KEN TEMIR LLP v. US 3
was warranted in light of Tau-Ken’s newness to the pro-
cess, COVID, and the volume of information requested. The
Supreme Court has provided that “[a]bsent constitutional
constraints or extremely compelling circumstances the ad-
ministrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capa-
ble of permitting them to discharge their multitudinous du-
ties.” Vermont Yankee Nuclear Power Corp. v. Nat. Res.
Def. Council, Inc., 435 U.S. 519, 543 (1978) (internal quo-
tations and citations omitted). Thus, appellate courts “will
defer to the judgment of [the] agency regarding the devel-
opment of the agency record.” Dongtai Peak Honey Indus.
v. United States, 777 F.3d 1343, 1351 (Fed. Cir. 2015) (ci-
tations omitted).1 Specifically, “[i]n order for Commerce to
fulfill its mandate to administer” the countervailing duty
(CVD) law, “it must be permitted to enforce the time frame
provided in its regulations.” Id. (alteration in original) (ci-
tation omitted).
Tau-Ken’s argument that Commerce could have still
completed its investigation within the timeline defined by
regulation if it had fully granted Tau-Ken’s first two exten-
sion requests ignores the fact that respondents do not dic-
tate whether and when Commerce needs the information it
requests. Id. at 1352 (“[I]t is not for [the investigated party]
to establish Commerce’s deadlines or to dictate to Com-
merce whether and when Commerce actually needs the re-
quested information.”). It is of no importance that
Commerce’s deadline is regulatory and may be pushed;
1 Insofar as Commerce and the Trade Court rely on
Dongtai Peak, all that case provides is an example of an
instance where we found that Commerce did not abuse its
discretion by rejecting a response as untimely; Dongtai
Peak does not define the outer bound for what is required
for Commerce to decide to deny an extension without abus-
ing its discretion.
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TAU-KEN TEMIR LLP v. US 4
Commerce should not be mandated to push its deadline.
Reversing Commerce because it did not make a showing of
prejudice as a result of the delay is an improper burden on
Commerce’s discretion.2 To place a burden of explanation
on Commerce to explain why it will not grant an extension
is impractical given the volume of investigations it handles.
This case sets a precedent for parties in all future investi-
gations to seek extensions, with the knowledge that Com-
merce will likely be unable to articulate a reason that
withstands the majority’s requirements to deny the exten-
sion, and effectively gain more time to file a response.
The majority opinion relies on the factors set forth by
the Trade Court in Grobest & I–Mei Industrial (Vietnam)
Co. v. United States to evaluate whether Commerce abused
its discretion. Maj. Op. 16–18 (citing 815 F. Supp. 2d 1342,
1365–67 (Ct. Int’l Trade 2012)). In Grobest, the Trade
Court noted that the analysis of whether Commerce abused
its discretion by refusing to accept a late filing “is neces-
sarily case specific.” 815 F. Supp. 2d at 1365. In analyzing
the circumstances to conclude Commerce had abused its
discretion in denying a late filing, the Trade Court found,
in relevant part, that investigated party Amanda Foods
filed only one late response, and it was diligent in correct-
ing its submission upon discovery of its error. The tardy
submission at issue was a separate-rate certification to
maintain separate-rate status that Amanda Foods had re-
ceived in three prior reviews where Amanda Foods had not
undergone relevant changes that would affect its status.
Id. at 1364–65. The Trade Court accordingly found that
“the burden on Commerce in considering the late-filed
2 Insofar as Commerce opted to delay the date of its
final determination in this investigation by twelve days to
align with concurrent investigations, this does not obligate
Commerce to share this extra time with the responding
parties.
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TAU-KEN TEMIR LLP v. US 5
[separate-rate certification (SRC)] would likely be minimal
given that only one SRC was filed late, the late-filed SRC
appears to maintain the status quo, and no follow-up was
conducted with regard to other separate-rate requests.” Id.
at 1367.
I believe the Trade Court’s more recent statement in
Bebitz Flanges Works Private Ltd. v. United States, is the
more apt case for our analysis, since its facts more closely
resemble those of the present case. 433 F. Supp. 3d 1309
(Ct. Int’l Trade 2020). In Bebitz, the investigated party
“challeng[ed] Commerce’s decision to not fully grant each
of Bebitz’s extension requests.” Id. at 1326. The Trade
Court “conclude[d] that Commerce struck the proper bal-
ance between finality and accuracy in rejecting Bebitz’s un-
timely submissions and denying some of Bebitz’s extension
requests in full.” Id. It noted that Commerce had granted
“numerous extensions” and thus “did not deny Bebitz a
meaningful opportunity to provide information or remedy
deficiencies in its original questionnaires.” Id. “Given the
statutory time constraints imposed upon Commerce and its
discretion in imposing time limits for responses, the
court . . . agree[d] that Commerce was not obligated to
grant Bebitz’s full extension requests and did not abuse its
discretion in enforcing its own deadlines.” Id. The Trade
Court cited our observation in Dongtai Peak that “it is not
for [the] [respondent] to establish Commerce’s deadlines or
to dictate to Commerce whether and when Commerce ac-
tually needs the requested information.” Id. (quoting
777 F.3d at 1352) (second alteration in original). Bebitz is
more on point both because the conduct of the investigated
party’s counsel more closely resembles Tau-Ken’s counsel’s
conduct, and because the submissions at issue contained
information that Commerce needed to consider in the first
instance without the benefit of prior investigations into the
matter.
I further note that reasonable minds may vary regard-
ing whether Tau-Ken’s counsel acted diligently to upload
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TAU-KEN TEMIR LLP v. US 6
its responses after facing technological delays. Though
Tau-Ken’s counsel received the documents from Tau-Ken
that it alleges caused technical difficulties at 10:58 a.m. the
morning of the deadline, Tau-Ken’s counsel did not file its
request for an extension until 3:50 p.m. that day. Even af-
ter counsel secured an automatic deadline extension on the
evening of September 16 until 8:30 a.m. the next day, they
did not even begin to try uploading anything until 5:31
a.m., and did not finish uploading its submission until after
10 a.m. that day. At that point, Tau-Ken’s counsel had still
not uploaded proprietary documents that were part of its
responses. Tau-Ken relies on our statement in Nippon Steel
Corp. v. United States that filings do “not require perfection
and . . . mistakes [can] sometimes occur.” 337 F.3d 1373,
1382 (Fed. Cir. 2003). However, the remainder of the
quoted sentence captures Tau-Ken’s error: this standard
“does not condone inattentiveness, carelessness, or inade-
quate record keeping.” Id.3
Because I believe Commerce has broad authority to en-
force its deadlines, and the facts here do not indicate what
I would consider to be an abuse of discretion, I respectfully
dissent.
3 Tau-Ken’s counsel has been reprimanded at least
twice by Commerce in prior proceedings for tardy submis-
sions and requests for extensions, as well as incomplete fil-
ings. As a result, Commerce warned in this case that “‘from
this point forward, all late submissions . . . would be re-
jected’ unless counsel complied with [Commerce’s] proce-
dures for requesting extensions.” J.A. 1572 (emphasis
omitted) (quoting Commerce Senior Director’s prior warn-
ing to counsel in a different investigation).
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