Exporter That Missed Deadline Due to Error Calls Commerce Deadline Enforcement ‘Draconian’
An exporter that was hit with a China-wide antidumping rate of 144.5% after it filed a separate rate certification a week late -- mistakenly believing that a deadline extension granted to “numerous parties” also applied to it -- said in an Oct. 25 motion for judgment that the Commerce Department was too “draconian” in enforcing its deadlines (Nanjing Dongsheng Shelf Manufacturing Co. v. U.S., CIT # 24-00085).
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Exporter Nanjing Dongsheng Shelf Manufacturing, an exporter of steel racks, said the department’s “common practice” is to grant deadline extensions to all parties when offered to one, and it had inadvertently believed this to be the case in the review being litigated. It said it filed its certification at the same time as the parties that had received the extension.
As the largest Chinese steel rack exporter to the U.S., Dongsheng should have been a mandatory respondent in the review, or at least a voluntary respondent, it said in its brief. Instead, it received the China-wide rate, “effectively blocking it from the U.S. market.”
But the burden of accepting Dongsheng’s late separate rate certification was nonexistent, it said. For instance, the mandatory respondents the department ultimately did select had filed their own certifications at the same time Dongsheng did.
And all of its other filings, including Section A questionnaire responses that provided Commerce the information it needed to determine the exporter was eligible for a separate rate, were submitted on time, it said.
The exporter cited Grobest v. U.S., calling it a “foundational” case regarding deadline extensions. The exporter said that in Grobest, a mandatory respondent filed a separate rate certification 95 days late, but CIT ordered Commerce to accept it because the respondent corrected itself as soon as it could, reviewing the particular certification wasn’t a heavy burden, and the submission was still turned in seven months prior to the preliminary determination.
Dongsheng itself, meanwhile, filed its separate rate certification only a week late, the exporter said.
Dongsheng also pointed to a recent case, Cambria, in which a respondent inadvertently missed a deadline because it mistakenly thought its deadline was set at Commerce’s default time, 5 p.m., instead of 10 a.m, the actual time. Similarly, Dongsheng said it had mistakenly believed a weeklong deadline extension applied to all parties.
It also accused Commerce and DOJ of regularly failing to meet their own deadlines, saying they are required to treat similar parties similarly. And it argued that, because it is the largest exporter of steel racks Commerce could have reviewed, the department was required to select it as a mandatory respondent -- as the department has done in prior cases even when the largest exporter of a product failed to submit a timely separate rate certification.
And, though the government also claimed that Donsheng hadn’t requested a deadline extension after missing the separate rate certification deadline, this was “a game at semantics that must be rejected,” Donsheng said. It said that in both writing and in a meeting after the fact, it had asked the department to accept its certification out-of-time.