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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. ______________________ 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 Case: 22-2204 Document: 112 Page: 2 Filed: 08/04/2025

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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 Case: 22-2204 Document: 112 Page: 3 Filed: 08/04/2025

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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 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

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“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 Case: 22-2204 Document: 112 Page: 5 Filed: 08/04/2025

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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 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 Case: 22-2204 Document: 112 Page: 6 Filed: 08/04/2025

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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

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“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

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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

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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

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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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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, 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. Case: 22-2204 Document: 112 Page: 12 Filed: 08/04/2025

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§ 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

Holdings LLC, 980 F.3d 858, 862–63 (Fed. Cir. 2020) (ex- plaining the distinction).

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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

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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 Case: 22-2204 Document: 112 Page: 15 Filed: 08/04/2025

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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 Case: 22-2204 Document: 112 Page: 16 Filed: 08/04/2025

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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

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[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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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.

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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 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” Case: 22-2204 Document: 112 Page: 20 Filed: 08/04/2025

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does not advance the inquiry into whether Commerce abused that discretion in this case.

Tau-Ken further argues that accepting the September 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

11Even 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’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 Case: 22-2204 Document: 112 Page: 22 Filed: 08/04/2025

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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 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 Case: 22-2204 Document: 112 Page: 23 Filed: 08/04/2025

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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

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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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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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.

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* * * 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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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 Case: 22-2204 Document: 112 Page: 29 Filed: 08/04/2025

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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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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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[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 Case: 22-2204 Document: 112 Page: 32 Filed: 08/04/2025

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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 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).