Commerce Department Can Extend Parties' Factual Information Deadlines on Its Own, US Says
The Commerce Department has the power to extend its deadlines for submission of factual information on its own -- without responding to an extension request from a submitting party, the U.S. said in opposition to a domestic boltless steel shelf producer Dec. 13 (Edsal Manufacturing v. United States, CIT # 25-00087).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Commerce used Indian manufacturer TMTE Metal Tech’s financial records to construct home market sales for shelf exporter Triune Technofab, the sole Indian respondent for an antidumping duty review on boltless steel shelves from India, Malaysia, Taiwan, Thailand and Vietnam. Because those records wouldn’t be filed with the Indian government to be placed on the public record until after the Oct. 10, 2023, deadline for submission of surrogate information had passed, Triune sought and received TMTE’s financial information directly. TMTE also agreed to provide the information to anybody who asked for it and provided a statement saying it agreed to place the financial information on the public record as a public document.
Petitioner Edsal argued in administrative proceedings, and later in its motion for judgment, that Commerce shouldn’t have used TMTE’s financial information to construct Triune’s home market sales because it wasn’t actually “publicly available.” Instead, the department should have used the information of Edsal’s preferred surrogate, Mekin, it said. In turn, Triune argued Mekin’s information wasn’t suitable because Mekin had received countervailable subsidies.
On Oct. 23, Triune also put a statement on the administrative record that TMTE’s records were now publicly available online. Commerce decided to extend the deadline for surrogate information to that date. It later reached a negative antidumping result for boltless steel shelving from India.
Commerce was acting reasonably and within its authority when it extended that deadline from Oct. 10 to Oct. 23 and chose to rely on TMTE’s records to construct Triune’s sales, the government said in its brief.
Edsal argued that Commerce wasn’t allowed to find good cause, and so extend the deadline, because Triune never sought a deadline extension. But Commerce has the authority to push back a time limit “on its own,” the U.S. said; and it can also “relax or modify its procedural rules” when required by the “ends of justice.”
Commerce’s discretion to set its deadlines should be evaluated by the trade court on an abuse of discretion standard, and “it is difficult to see how Commerce’s acceptance of additional record evidence would constitute an abuse of Commerce’s discretion, when that evidence assists Commerce in its investigation,” it said.
The domestic producer also argued that only under “extraordinary circumstances” will the department grant retroactive deadline extension requests. But this is not the case here because Triune didn’t make an extension request, the government said. And it said that its acceptance of TMTE’s financial information wasn’t “highly prejudicial” to Edsal because Edsal had the opportunity to rebut it.