US, Trade Group Say Steel Rack Exporter's Reasons for Missing Deadline Unreasonable

Commerce received extension requests for the filing of no sale certificates from exporters Ironstone and Luckyroc. It also received extension requests for separate rate applications “from Ningbo Xinguang Rack Co., Ltd. (Xinguang), Jiangsu JISE Intelligent Storage Equipment Co., Ltd. (JISE), Jiangsu Nova Intelligent Logistics Equipment Co., Ltd. (Nova), and Suntop (Xiamen) Display System Inc. (Suntop),” the U.S. said.

But Dongsheng, represented by the same counsel as Xinguang, Ironstone and Luckyroc, didn’t seek an extension and thus wasn’t granted one, it said.

In an ex parte meeting, Dongsheng’s counsel said they had assumed that the deadline extension was granted to all exporters. The department, the U.S. said, in turn asked why they had submitted three other extension requests for the no sales certifications and separate rate application “if counsel presumed only a single extension request was required to extend the deadlines to all firms.”

“Counsel responded that it only submitted requests for its clients that needed an extension of the no sales certification and [separate rate certification/separate rate application] deadlines,” the U.S. said.

In its motion for judgment, Dongsheng said the department’s “common practice” is to grant deadline extensions to all parties when one asks for it, and it had assumed this to be the case in the proceeding litigated.

Because Dongsheng didn’t submit its separate rate certification in time, Commerce didn’t select it as a mandatory respondent in its subsequent antidumping duty review and assigned it the China-wide antidumping rate of 144.5%.

The U.S. said that Dongsheng hadn’t demonstrated the requisite “extraordinary circumstances” that would excuse its failure to file on time or seek an extension.

It said Commerce needs to enforce strict deadlines “so that it can meet its own statutory deadlines.” It cited a case in which the court acknowledged that Commerce “does not allege any prejudice specific to this case, but it does allege the general prejudice stemming from late filings.”

And it distinguished cases such as Celik Halat and Cambria. In Celik Halat, only one exhibit was filed late -- by 21 minutes -- after the exporter was impacted by the COVID-19 pandemic, it said. Cambria, meanwhile, involved an unusual 10 a.m. deadline and a filing that was only hours late, not days.

Donsheng also argued both that Commerce has previously chosen to examine parties who filed late separate rate certifications and that it itself had never missed a deadline, which should have allowed it to use Commerce’s policy allowing one mistake.

But “such instances do not constitute a policy or practice that is binding on Commerce in this case,” the U.S. said. And Commerce also has rejected many untimely submissions, it said.

In turn, defendant-intervenor Coalition for Fair Rack Imports backed up the government’s arguments. It also denied the department has “an established practice” of extending the separate rate certification deadline for all when requested to do so by one party.

And Commerce has defined “extraordinary circumstances,” the standard untimely extension requests must meet, to be events such as “a natural disaster, riot, war, force majeure, or medical emergency,” it said.

“Dongsheng’s careless reading of three clearly written extension letters, including one that was issued to a company that is represented by the same counsel as Dongsheng, is the type of inattentiveness that does not qualify as an extraordinary circumstance as it could have been prevented if reasonable measures had been taken,” it said.

It said the exporter’s counsel could have, for example, “consulted with a Commerce official to obtain clarification or additional guidance regarding the deadline.”

And it claimed Dongsheng’s arguments amounted to an attempt to turn “the regulation on its head” and make Commerce “demonstrate the reasonableness of its decision based on factors that are not relevant” to its regulations.