Commerce's Rejection of Late Extension Request 'Riddled With Errors,' Exporter Claims
Indian exporter Jindal Poly Films said Feb. 10 that the government was wrong to claim that an employee’s “severe illness” wasn’t a “medical emergency” that justified an untimely filing extension request. Overall, it said, the Commerce Department’s rejection of that request was the result of an analysis that was “riddled with errors” (Jindal Poly Films v. United States, CIT # 24-00053).
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“Commerce incorrectly described the timing of Jindal’s filing, misunderstood Jindal’s argument regarding extraordinary circumstances, failed to account for ambiguities in the deadlines listed on the questionnaire, incorrectly claimed Jindal’s counsel accessed the questionnaire before the deadline, ignored Jindal’s unrepresented status, and failed to consider how much time was left in the review,” Jindal said.
The exporter of polyethylene terephthalate film, sheet and strip (PET film) filed a September motion for judgment arguing that it missed a deadline because the Commerce Department issued it a questionnaire with an ambiguous due date (see 2403280025). Jindal’s only employee with institutional knowledge regarding countervailing duty reviews, meanwhile, was “severely ill” and couldn’t assist, it claimed.
In response, the U.S. called Jindal “careless” and “inattentive,” saying it could have asked for clarification (see 2412090058). It said that the department had properly used its discretion
But Commerce’s overall understanding of the situation was itself flawed, the exporter said.
Though the department “'insists that it ‘considered the circumstances proffered by Jindal,’” it “couldn’t even get the facts straight,” Jindal said. For example, Commerce wrongly stated that Jindal only filed a deadline extension request on Jan. 3, 2023, when, two paragraphs earlier, it said that it received the exporter’s first extension request on Dec. 31, 2022, the exporter claimed. The department also claimed that Jindal’s representative looked at the questionnaire in mid-December even though Jindal didn’t retain representation until Dec. 30, it said.
And Commerce dismissal of the medical leave taken by Jindal’s employee as “not ‘a medical emergency’” was a “perverse claim” that was “of the same ilk as Commerce finding that the deaths of three key accountants while the company was preparing responses did not justify an extension,” it said, citing Grupo Acerero v. U.S.
Jindal also disagreed with the government’s claim that the illness wasn’t a “proximate cause” of the untimely request. The confusion of the other employees, as “neophytes to Commerce’s scores of pages of legalese, instructions, and appendices,” was a direct result of the experienced employee’s absence, it said.
It further claimed that it couldn’t have asked for clarification of the deadlines earlier. Jindal hadn’t even realized a relevant questionnaire response had an earlier due date until after that due date had passed, it said. And it called the U.S. argument that “Jindal did not provide supporting documentation, identify the relevant employee, or establish that the relevant employee was responsible for responding to the questionnaire or requesting an extension” an impermissible post-hoc rationalization, saying Commerce hadn’t mentioned this in its extension request denial or its final results.