'Publicly Available' Documents Don't Have to Have Been Published, Steel Shelf Exporter Says
Defendant-intervenor Triune Technofab said the financial information the Commerce Department used in a review of boltless steel shelving units from India should be considered a publicly available record, not a private one (Edsal Manufacturing v. United States, CIT # 24-00087).
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“Commerce’s amended Regulations refined the definition of ‘public availability’ to obviate any requirement that a document be formally ‘published,’” it said.
The Commerce Department used financial information from surrogate TMTE Metal Tech in the review, even though that information hadn’t yet been made public. Petitioner Edsal Manufacturing argued that Triune’s supplemental filing later on in the proceeding -- letting Commerce know the information had since been placed online by the Indian government -- was untimely new factual information filed past an Oct. 2 deadline, but this wasn’t the statutory standard, Triune said.
Triune couldn’t have filed by Oct. 2 because its submission hadn’t been available online yet, the exporter said. And “for factual information to be covered under any of the four specific clauses of 19 C.F.R. 351.102(b)(21)(i)-(iv), such information had to exist as of the filing deadline specified in the Regulation,” it said.
Commerce rightly extended its deadline for good cause for this reason, it said.
It also argued that “public availability of TMTE’s 2022-23 financial statement” couldn’t be considered evidence or factual information.
And even so, the original financial statements were still publicly available even prior to being filed online, it said, because they were uploaded onto ACCESS on Oct. 2. Further, TMTE’s management agreed in writing to place the documents on the record and provide them to anyone who wanted to see them, Triune said.