US Chloropicrin Producers Seek Reversal of AD Order Revocation at CAFC

The Commerce Department's rejection of three U.S. chloropicrin producers' filing in an antidumping duty sunset review -- which resulted in the revocation of the nearly 40-year-old order on chloropicrin from China -- was a "marked abuse of discretion" given that the producers' lawyer was impaired with "medical and technical issues," plaintiff-appellants, led by Trinity Manufacturing, said in a March 14 opening brief at the U.S. Court of Appeals for the Federal Circuit (Trinity Manufacturing v. United States, Fed. Cir. #22-1329).

The case comes from the Court of International Trade, where Judge Timothy Stanceu ruled that Commerce did not abuse its discretion when enforcing the filing deadline (see 2111080069), citing the agency's clear interest in enforcing filing deadlines. Trinity, along with Ashta Chemicals and Niklor Chemical Company, had told the trade court that, at the time of the error, the filing attorney thought that the filing had been made, and there were internet issues as well as medical issues the attorney faced. Commerce had rejected their bid for a retroactive deadline extension.

Trinity, Ashta and Niklor appealed to the Federal Circuit, where they argued that Stanceu's opinion did not focus on the "extremely disproportionate and prejudicial results" that came from the missed deadline. Further, the trade court held in a Feb. 22 decision that Commerce's denial of minutes-late submissions in antidumping and countervailing duty investigations constituted an abuse of discretion (see 2202160021). That case was also decided by Stanceu.

"By contrast, in the instant appeal, the Trade Court failed to weigh the manifestly unjust and punitive result of Commerce’s unreasonable application of the preamble language against Commerce’s interest in enforcing its deadlines," the brief said. "... The Trade Court (incorrectly) stated that the factors Plaintiffs-Appellants outlined did not include Commerce’s 'interests in deterring late filings' that 'are served by a rule confining the granting of such requests to extraordinary circumstances.'"

The plaintiff-appellants also argued that Commerce has granted untimely extension requests for a number of other reasons in much less "extraordinary" circumstances than those at issue in this case. Some of these reasons include printer jams, clerical errors and holiday schedules, finding them to be extraordinary circumstances, Trinity, Ashta and Niklor pointed out.

"Here, Commerce did not act in a manner consistent with these precedents," the brief said. "Instead, the agency relied on its assessment that the medical issues experienced by Plaintiffs-Appellants’ representative did not constitute a medical emergency. This decision is at odds with Commerce’s regulations, which require 'extraordinary' (not 'emergency') circumstances as well as the agency’s decisions in other proceedings. Commerce failed to adequately explain why it treated Plaintiffs-Appellants’ request differently than these prior requests."