Exporter Seeks Judgment in Another Missed Deadline Case, Calling Rejection of Filing ‘Unfair’
A Vietnamese exporter of light-walled rectangular pipe and tube filed a motion for judgment in another case -- this one over a circumvention inquiry -- contesting the rejection of its filing because it narrowly missed a deadline. The exporter called the decision “fundamentally unfair” (Hoa Phat Steel Pipe Co., Ltd v. U.S., CIT # 23-00248).
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Exporter Hoa Phat Steel Pipe was one of two mandatory respondents chosen for the three circumvention inquiries on its products after petitioners alleged exporters were transshipping through Vietnam from South Korea, evading antidumping and countervailing duty orders.
The Commerce Department issued Hoa Phat “voluminous” questionnaires for all three inquiries and, after granting one partial extension and denying another request entirely, gave the exporter 31 days to complete them, Hoa Phat said.
On Oct. 7, 2022, the deadline Hoa Phat was given by Commerce, the exporter’s counsel called the department and asked for an extension until 10 a.m. on Oct. 11, the next business day. They explained that they “were experiencing difficulty and needed time to OCR, split, and flatten the submission which was estimated to be over 6000 pages.” Commerce gave them until midnight on Oct. 7.
As midnight approached, the exporter filed another extension request “which contained a minor technical defect but was filed in the appropriate ACCESS segment.” It then began filing its responses “under the one-day lag rule.” It finished filing the final business proprietary versions of its responses by Monday, Oct. 10, which was a public holiday, and the public versions by the end of Tuesday, it said.
The following month, in November, Commerce rejected all of the responses and removed them from the record, it said. And the following year, the department declared in its final determination that Hoa Phat was transshipping, on the basis of an adverse inference because no evidence was available in the record, it said.
The exporter called Commerce’s decision an abuse of its discretion. It noted that Commerce told Hoa Phat it had to reject its questionnaire responses because the department had to complete the inquiry by the deadline set by U.S. law, but then found that the law “actually did not ‘expressly preclude’” the department from pushing its own deadline back five months.
And because almost everything had been filed before Commerce officials arrived at work on Tuesday, Oct. 11, the burden on Commerce caused by the late submission was minimal, while the impact of rejecting the submission on Hoa Phat, and the accuracy of the proceeding, was “very high,” the exporter said.
“At most, Hoa Phat deprived the officials" assigned to its case "of the opportunity to begin their review of Hoa Phat’s submission over the holiday weekend,” it said. “It seems unlikely that any of those officials would have utilized that time in that manner and it took Commerce thirty days to even issue its decision rejecting Hoa Phat’s questionnaire response.”
“Commerce’s arbitrary approach to Hoa Phat resulted in (a) country-wide determination regarding Vietnam that was based on the review of a single company and (b) a highly punitive exclusion of Hoa Phat from the certification regime that all other Vietnamese exporters were able to enjoy to continue exports to the United States,” the exporter said.
It asked the trade court to send the determination back to Commerce and instruct it to accept Hoa Phat’s responses.