Vietnamese Exporter Says Commerce Abused Discretion in Rejecting Filings in Anti-Circ Rulings

The Commerce Department went too far when it rejected all of Vietnamese exporter Hoa Phat Steel Pipe Co.'s submitted factual information in three anti-circumvention inquiries on light-walled rectangular pipe and tube from China, Taiwan and South Korea, Hoa Phat said in a trio of complaints at the Court of International Trade. The exporter said that while Commerce has some discretion in how it conducts AD proceedings, "there is substantial court precedent that Commerce cannot abuse this discretion" (Hoa Phat Steel Pipe Co. v. United States, CIT #s 23-00248, -00249, -00250).

Commerce began the anti-circumvention proceedings in August 2022, picking Hoa Phat and Vina One Steel Manufacturing Corp. as the mandatory respondents. A few days later, the agency issued Hoa Phat a questionnaire, setting the deadline a few weeks later. Throughout the proceeding, Hoa Phat was granted various extensions, though none were as long as the time the exporter requested.

The requested documents came due on Oct. 7, 2022. However, counsel for Hoa Phat and Commerce spoke on the phone and extended the deadline until midnight that day. At around 11:46 p.m., the exporter submitted another extension request, though the cover page on the extension said "Investigation" instead of "Circumvention Inquiry." Under the agency's one-day lag rule, Hoa Phat had until the end of the next business day to file its submissions.

Hoa Phat completed its filing of the "one-day lag version of the initial questionnaire response" the next day, Oct. 8, 2022. On Oct. 11, the next business day after the extension request was filed, the extension was rejected since the cover page was incorrect. Hoa Phat refiled the extension request a "few hours later" with the correct information. Commerce nevertheless rejected the exporter's submissions and levied an adverse inference against the company.

The exporter's complaints allege that this rejection was an abuse of discretion, arguing that all of the documents were uploaded the next business day after the deadline. And because the deadline day, Oct. 7, was followed by a federal holiday during which Commerce "is closed and most likely did not actually review the information and data of any respondent," the submission "caused no interruption to the" inquiry and "did not delay Commerce's ability to render a timely determination," the complaints said.