## United States Court of Appeals for the Federal Circuit

04-1264

DOFASCO INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee, and UNITED STATES STEEL CORPORATION, Defendant-Appellee.

Michael R. Shebelskie , Hunton & Williams LLP, of Richmond, Virginia, argued for plaintiff-appellant. With him on the brief were William H. Wright, Jr. , of Richmond, Virginia; and William Silverman , Douglas J. Heffner , and Richard P. Ferrin , of Washington, DC. David S. Silverbrand , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were Peter D. Kiesler , Assistant Attorney General; David M. Cohen , Director; and Jeanne E. Davidson , Deputy Director. Of counsel on the brief was Jennifer D. Jones , International Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC. Jeffrey D. Gerrish , Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, argued for defendant-appellee Un ited States Steel Corporat ion. With him on the brief were John J. Mangan , Robert E. Lighthizer , and Daniel L. Schneiderman . Of counsel was James C. Hecht

. Appealed from: United States Court of International Trade Judge Richard K. Eaton

## United States Court of Appeals for the Federal Circuit

04-1264 DOFASCO INC., Plaintiff-Appellant,

v. UNITED STATES Defendant-Appellee, and UNITED STATES STEEL CORPORATION, Defendant-Appellee.

___________________________ DECIDED: December 7, 2004

___________________________ Before LOURIE, Circuit Judge , ARCHER, Senior Circuit Judge , and DYK, Circuit Judge

. DYK, Circuit Judge

. Plaintiff Dofasco Inc. (“Dofasco”) appeals from the judgment of the United States Court of International Trade, which granted summary judgment in favor of the United States in this action seeking to enjoin the United States D epartment of Commerce (“Commerce” or the “Department”) from conducting an antidumping administrative review. We affirm. BACKGROUND Dofasco is a Canadian steel exporter. On August 19, 1993, Commerce issued an antidumping duty order covering carbon steel plate products from Canada. 58 Fed.Reg. 44162 (Aug. 19, 1993). The antidumping duty order covers several products exported to the United States by Dofasco. (J.A. at 79.) Under 19 U.S.C. § 1675(a)(1), Co mmerce conducts annual administrative reviews of exporters covered by the ant idumping duty order, “if a request for such review has been received.” Id. Commerce published its notice of opportunity to request an administrative review on August 1, 2003. The notice stated that an administrative review would be conducted pursuant to “requests received by the last day of August 2003.” (J.A. at 82.) The last day of August 2003 was a Sunday. Septem ber 1, 2003, was Labor Day, a federal holiday. United States Steel Corporation (“USSC”) filed a request for administrative review of Dofasco’s antidumpi ng liability on September 2, 2003. Dofasco asked Commerce to rescind its adm inistrative review on the basis that USSC’s request was untimely, not having been filed “by the last day of August.” Commerce refused on the basis of 19 C.F.R. § 351.303(b), whic h states that “[i]f the applicable time limit expires on a non-busine ss day, [Commerce] will accept documents that are filed on the next business day.” Commerce stated its interpretation of section 351.303(b) was that it would accept “all documents due to be filed with the Department on a non-business day on the next business day , unless the Department has expressly notified parties that it will not accept such submissions.” (J.A. at 116.) Dofasco then filed suit in the Court of Inte rnational Trade on November 17, 2003. The Court of International Trade upheld Commerce’s actions. Dofasco Inc. v. United States , 326 F. Supp. 2d 1340 (Ct. Int’l Trade 2004). The court held that the language of section 351.303 was plain and supported Commerce’s acceptance of

04-1264 2USSC’s request. Id. at 1350. Dofasco appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION Under 19 U.S.C. § 1673, Commerce dete rmines whether “foreign merchandise is being . . . sold in the United St ates at less than its fair value” and the antidumping duty to be assessed in such circumstances. Re cognizing that prices and costs change over the course of time, Congress provi ded that Commerce shall conduct an annual administrative review “if a request for such a review [is] received.” 19 U.S.C. § 1675(a)(1) (2000). The purpose of the review is to determine the duty liability for the review period. 19 U.S.C. § 1675(a)(1)(B). Absent such a review, the duty is assessed at a preexisting rate. 19 C.F. R. § 351.212(c)(1)(i) (2004). T he statute provides no time limit for when the request must be received. It is well settled that Commerce is empow ered to adopt regulations to fill gaps in the statutory scheme. Micron Tech., Inc. v. United States , 243 F.3d 1301, 1312 (Fed. Cir. 2001); Torrington Co. v. United States , 68 F.3d 1347, 1350-51 (Fed. Cir. 1995). Commerce has adopted regulations establishi ng deadlines for receipt of requests for antidumping reviews. The regulations provi de that the request must be received “during the anniversary month of the publication of an antidumping . . . order.” 19 C.F.R. § 351.213(b)(1) (2004). Here, Commerce issued an order specifying that requests must be “received by the last day of August 2003. ” (J.A. at 82.) Commerce also has a regulation for when time limits fall on non-busi ness days, stating that “[i]f the applicable time limit expires on a non-business day, [C ommerce] will accept documents that are filed on the next business day.” 19 C.F.R. § 351. 303(b) (2004). The regulation states

04-1264 3that section 351.303 “contains the procedural rules regarding filing . . . and applies to all persons submitting documents . . . for consi deration in an antidumpi ng . . . proceeding.” Id. § 351.303(a). Comparable provisions appear in both the Feder al Rules of Civil Procedure and the Federal Rules of Appellate Procedure. See Fed. R. Civ. P. 6(a); Fed R. App. P. 26(a). Dofasco argues that sect ion 351.303(b) does not apply to deadlines established by section 351.213(b)(1) because requests for adm inistrative review are not “filings,” or, alternatively, that section 351.213 does not establis h a “time limit.” Both arguments are without basis. The statute requires the request for review to be “received” by Commerce. 19 U.S.C. § 1675(a )(1). The regulations plainly provide under the heading, “Filing of documents with the Department,” t hat “no document will be considered as having been received by [Commerce] unless it is submitted,” i.e. , filed. 19 C.F.R. § 351.103(b) (2004). Thus ever y document that must be “received” by Commerce is a “filing.” We also think it plain that requiri ng receipt of a document by the last day of a month is a “time limi t.” Here the time limit fell on a non-business day, namely Sunday, August 31, 2003. Documents received on t he next business day, Se ptember 2, 2003, were timely filed. Thus, as the Court of International Trad e correctly held, USSC’s filing was timely under the plain meaning of the regulations. CONCLUSION For the foregoing reasons, the judgment of the Court of International Trade is
AFFIRMED

. COSTS Costs are awarded to appellees.

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