Commerce Denial of Extension for Lawyer Suffering Medical Issues Too Harsh, Brief Says
The Commerce Department acted arbitrarily when it denied a retroactive extension to a filing deadline missed by a lawyer suffering from medical issues. a move that would eventually lead to the revocation of an antidumping duty order that had been in place for decades, a domestic producer said in challenging the revocation in a brief filed June 17.
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During a sunset review on chloropicrin from China, unexpected medical issues caused the lawyer for Trinity Manufacturing to forget the deadline for filing a substantive response, even though he had already filed other documents in the sunset review, including a brief required by the International Trade Commission a day earlier.
Non-participation in a sunset review by domestic producers results in revocation of the underlying order. After it received no substantive response, Commerce notified the International Trade Commission a week later that it would be revoking the order for lack of domestic participation. At this point, the lawyer realized what had happened, and days later requested a retroactive extension to the deadline. The domestic producers also changed lawyers.
“These earnest efforts were for naught, as Commerce refused to grant the extension request and accept the filing, notwithstanding the disproportionate and draconian consequences that resulted. Indeed, Commerce failed to mention many of these efforts in its brief,” Trinity said.
According to Trinity, Commerce was being unreasonable when it denied the request. “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,” Trinity said.
Allowing the request would not cause harm to Commerce, but on the other hand, it would cause great harm to Trinity, the company said. Trinity “will suffer hugely disproportionate and severe consequences by virtue of Commerce’s decision -- viz., revocation of a long-standing AD order that Commerce itself has deemed to be necessary for several decades,” it said. “Conversely, Commerce will experience no harm whatsoever by granting Plaintiffs’ extension request and accepting their substantive response in the uncontested sunset review.”
The decision not to allow the filing is also unfair in light of extensions Commerce has granted in other cases, Trinity said. “Commerce ignores its repeated decisions in other proceedings, where the agency has granted untimely extension requests under circumstances far less severe than those before the Court. In fact, many of the determinations involve entirely prosaic issues, such as incorrect calendaring or 'the holiday season,’” Trinity said. “Commerce fails to adequately explain why it treated Plaintiffs’ request differently than these prior requests.”
“As demonstrated above, Commerce’s practice with respect to extension requests is entirely inconsistent with its determination here. Commerce fails to provide sufficient reasons for its different treatment of Plaintiffs’ extension request that involves extraordinary circumstances versus the numerous occasions where the agency has granted extension requests based on less severe (or at least similar) reasons. Commerce’s unexplained disparate treatment amounts to unlawful arbitrary and capricious action that should be set aside,” Trinity said.