Medical Issues Did Not Explain Late Filing in AD Sunset Review, CIT Rules

The Commerce Department did not abuse its discretion when it denied a group of domestic chloropicrin producers' bid to retroactively extend a filing deadline, the Court of International Trade said in a Nov. 8 opinion. Not buying the plaintiffs' excuses that the deadline was missed due to a combination of technical and medical issues, Judge Timothy Stanceu upheld Commerce's rejection of the extension requests following revocation of the relevant AD duty order because of the missed deadline.

The case concerns the antidumping duty order on chloropicrin from China. Guided by the statute, Commerce announced that it was going to conduct a sunset review of the order. When no party responded to the notice of initiation of the review, the agency then revoked the order. Certain chloropicrin producers then attempted to retroactively extend the deadline for applying for the review. Commerce denied the producers' first bid for the retroactive extension, prompting a second challenge from the domestic industry actors.

This second bid included multiple excuses from the plaintiffs, which included arguments that the filing attorney thought that the filing had been made, that there were internet issues at the time of filing and there were medical issues precluding the filing that the attorney did not previously disclose during the first deadline extension application. Nevertheless, Commerce again denied the attempt at a retroactive deadline extension.

During litigation over this issue, the plaintiffs asserted that denying the bid to retroactively extend the deadline would be too harsh of a practice to be allowed (see 2106180031). “Simply put, how would someone know to file an extension request when, due to the cumulative effects of ongoing medical issues, he had no idea the deadline had been missed ... in the first place and indeed believed the filing was made? Only an overzealous and unreasonable application of the regulations would find that the situation did not constitute an extraordinary circumstance,” the plaintiffs said.

In his opinion, Stanceu upheld Commerce's use of its discretion, holding, among other things, that he doesn't agree with the plaintiffs' contention that the listed medical issues could be characterized as an unexpected medical emergency. While not diving into the details of the medical issues themselves, Stanceu said that the plaintiffs failed to show how the medical issues could have caused the attorney to believe that he had completed the filing when he actually hadn't. With this in mind, Stanceu said that the producers did not establish that extraordinary circumstances prevented the timely filing for the review, as required by the law.

"Plaintiffs’ argument alleging an abuse of discretion is unconvincing," the judge said. "... Commerce reasonably applied the criteria the amended regulation sets forth. The factors plaintiffs would have the court apply to resolve the current dispute do not mention the Department’s interest in the orderly administration of the antidumping duty law and, specifically, its interest in deterring late filings for which extension requests are not made prior to the expiration of the filing period."

(Trinity Manufacturing, Inc., et al. v. United States, Slip Op. 21-153, CIT #20-03831, dated 11/08/21, Judge Timothy Stanceu. Attorneys: Adam Gordon of The Bristol Group for plaintiffs; Geoffrey Long for defendant U.S. government)