Commerce Says Initiation Notice Enough Notification for Exporters in AD Duty Investigations
The Federal Register notice announcing an antidumping duty investigation on walk-behind lawn mowers was sufficient notification to a Chinese exporter, and Commerce’s failure to otherwise notify the exporter of the investigation did not violate the exporter’s due process rights, the agency said in an issues and decision memorandum issued May 14 alongside its final determination in the investigation.
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According to Commerce’s memo, Fujian Spring said Commerce’s failure to notify meant it “was denied an opportunity to submit a timely separate rate application and quantity and value questionnaire response so as to establish its eligibility for a separate rate,” in violation of Federal Circuit precedent that parties must be able to rebut the presumption of state control. The exporter also said that failure denied it the opportunity to submit comments on respondent selection. “This denial violated U.S. obligations under Article 6.10 of the WTO AD Agreement,” Fujian Spring said, according to the memo.
As a result of missing those deadlines, Fujian Spring will be assigned to the China-wide entity with a rate of 274.29% in the final determination, once it is published in the Federal Register in the coming days. The China-wide rate had been set at 84.26% in the preliminary determination.
Commerce responded that, by law, it meets its notification requirement by publication in the Federal Register, and additional notification is unnecessary. “Under U.S. law, such publication is sufficient to give notice of the contents of the document to a person affected by it.” In support, the agency cited 44 USC 1507, which says: “Unless otherwise specifically provided by statute, filing of a document, required or authorized to be published by section 1505 of this title, except in cases where notice by publication is insufficient in law, is sufficient to give notice of the contents of the document to a person subject to or affected by it.”
The agency cited Court of International Trade and Federal Circuit decisions to that effect, including one involving Suntec, wherein the Federal Circuit found Commerce’s publication of a notice initiating an administrative review was sufficient notice to an exporter that subsequently filed to submit a separate rate application and was assigned the China-wide rate.
Fujian Spring’s citation to the WTO AD Agreement and related WTO jurisprudence is also unavailing,” Commerce said. “Commerce’s determination here is governed by U.S. law, and for reasons set forth above, Commerce has acted in accordance with U.S. law. Because U.S. law is consistent with our international obligations, we disagree that Commerce’s determination conflicts with the WTO rules,” it said.
“In sum, we determine that Fujian Spring’s failure to meet the specified deadlines for filing various submissions in this investigation is not due to Commerce’s failure to provide adequate notice to parties of initiation of the investigation,” Commerce said. “Thus, Commerce did not deny Fujian Spring an opportunity to submit scope comments, to demonstrate its entitlement to a separate rate, to comment on respondent selection, or to seek voluntary respondent treatment. Fujian Spring simply failed to make the relevant submissions in accordance with the applicable deadlines.”