Exporter in Missed Deadline Case Opposes 'Extraordinary Circumstances' Requirement
In another missed deadline case (see 2501070084, 2409100065) and 2501270069), Chinese steel rack exporter Nanjing Dongsheng Shelf Manufacturing said again March 17 that the Commerce Department shouldn’t have hit it with adverse facts available for assuming a deadline extension offered to most separate rate review respondents had also been granted to it (Nanjing Dongsheng Shelf Manufacturing Co. v. United States, CIT # 24-00085).
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Commerce claimed Dongsheng hadn’t demonstrated “extraordinary circumstances” in its retroactive deadline extension request, the exporter said. But that was based on a department regulation that didn’t supersede Commerce’s statutory responsibility “to administer the antidumping law in a manner that is remedial and non-punitive,” it said.
Citing Grobest, a 2012 case in which the court ordered Commerce to accept a 95-days-late separate rate certification, Dongsheng said the department was still supposed to evaluate the specific facts of each situation before rejecting an untimely submission; the Court of International Trade noted in Grobest that the respondent had corrected itself as soon as possible, the late filing hadn’t imposed a heavy burden on Commerce and the submission had still preceded the preliminary determination by seven months (see 2410280032).
“Indeed, a growing number of cases at this Court since the 2013 revision adding the ‘extraordinary circumstances’ to the regulation have still considered the Grobest factors in determining whether the Department’s properly rejected an untimely filing,” Nanjing said in its March 17 brief.
It disagreed with the U.S. that Commerce had been burdened by Dongsheng’s late separate rate certification. The U.S. had claimed a burden because “Commerce cannot begin the respondent selection process without receiving and reviewing all separate rate applications and certifications,” it noted, but Dongsheng had submitted its certification at the same time as all the companies that had received a deadline extension.
“Therefore, how is this a burden?” it asked.
The certification Dongsheng had submitted late was the same one it had provided Commerce in the prior two reviews, down to “two one page exhibits with [Dongsheng’s] business licenses and foreign trade registration,” it said.
And it again argued that its counsel had reasonably assumed that the extension had been granted for all participating exporters because this has been true in “the overwhelming majority of cases for many years.” Universal extensions make sense considering Commerce can’t begin selecting mandatory respondents until all certifications are submitted, it said.
The U.S. noted in its opposition brief that Dongsheng’s counsel had filed a deadline extension for other separate rate applicants it also represented. It questioned why the attorneys had assumed one extension was sufficient, considering they “filed an extension for three companies instead of just one,” Dongsheng said.
But “[i]t would not have been factual” to include Dongsheng in the extension request, nor to exclude any of the other companies -- Dongsheng hadn’t needed an extension, and the other three companies had, the exporter said.