PET Film Exporter Didn't Show Extraordinary Circumstances for Missing Deadline, US Says
The U.S. defended the Commerce Department’s controversial enforcement of strict deadlines in another case Dec. 5, saying that the missed Dec. 26, 2022, deadline had been “clearly stated” by Commerce and acknowledged by the exporter (Jindal Poly Films v. U.S., CIT # 24-00053).
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It called Jindal's situation distinguishable from all other, similar deadline cases seen by the court.
“While Jindal spends several pages discussing timeliness and finality in various other cases, the Court’s review of the rejection of an untimely filing is made on a case-by-case basis, not by comparing the circumstances of other cases to this one,” it said.
Because Jindal was an “experienced mandatory respondent,” having been one in "seven of the last ten years that an administrative review has been initiated" for its product, the exporter should have known better, it said. It claimed that the untimeliness “demonstrated inattentiveness rather than extraordinary circumstances.”
In its September motion for judgment (see 2409100065), Jindal, an exporter of polyethylene terephthalate film, sheet, and strip (PET film), said that it hadn’t expected to be a mandatory respondent and claimed it had never been one before. It called the early stages of the review confusing, saying that Commerce had first listed the deadline for Jindal’s Section II and Section III questionnaire responses as “Jan. 18, 2022” -- a typo, as the actual deadline should have been in 2023, not 2022 -- and only later noted that its “response to Section III identifying affiliated companies” was due on “December 26, 2022.”
Dec. 26 wasn’t the correct date, either, as federal offices would be closed until the following day, Jindal said.
It argued that it had good cause for its delay, as the only employee it had with “institutional knowledge regarding reviews” at the time was “on medical leave with a severe illness.”
The U.S. disagreed that Commerce erred by failing to “consider the context of Jindal’s” subsequent extension request, made Dec. 31, 2022, after the exporter retained counsel. It also noted that the request was “effectively” filed Jan. 3, 2023, as that was the next business day.
In the absence of “extraordinary circumstances,” the department may reject all untimely extension requests, the government said. An “extraordinary circumstance,” it said, is “an unexpected event that: (i) [c]ould not have been prevented if reasonable measures had been taken and (ii) [p]recludes a party or its representative from timely filing an extension request through all reasonable means.”
Jindal couldn’t show that any extraordinary circumstances justified a late extension request, it said.
It said that Jindal “did not describe an inability to access the relevant documents.” The exporter also didn’t say that its medical emergency prevented it from filing a timely extension request, it said.
The government distinguished Jindal’s case from another recent deadline case, Grupo Acerero v. United States, that had been decided in an exporter’s favor (see 2404250062). That case was initiated after Commerce refused to grant an extension for good cause “when one mandatory respondent suffered from three dead employees, a fourth hospitalized, and outside counsel unable to help because of the COVID pandemic restrictions,” the U.S. said.
“The circumstances affecting Grupo Acerero’s respondent are objectively more severe than the facts in this case, yet that respondent still managed to file timely extension requests,” it said.
It also took issue with Jindal’s depiction of Commerce as having ignored the fact Jindal was unrepresented until after the Dec. 26 deadline had passed. Jindal accused the government of wrongly finding that Jindal did have representation prior to the deadline because a legal representative for the Indian government, YGK, had looked at the questionnaire earlier. YGK was later retained by Jindal.
But the initial questionnaire, which Commerce issued to the government of India, not Jindal, underlined the fact that the “government is responsible for forwarding copies of [the] cover letter and questionnaire to the respondent company,” the U.S. said.
“Thus, whether YGK accessed the documents as a representative of the GOI or as the representative of Jindal, it accessed the questionnaire well before the deadline and was responsible for forwarding the questionnaire to Jindal,” it said.