Slip Op. 16-111

UNITED STATES COURT OF INTERNATIONAL TRADE

NEO SOLAR POWER CORPORATION,

Plaintiff,

v.

UNITED STATES, 

Defendant.

Before: Jane A. Restani, Judge 

Court No. 16-00088

OPINION

[Plaintiff’s motion for judgment on the agency record in antidumping duty matter denied.] 

Dated: December 1, 2016 

Neil B. Mooney, The Mooney Law Firm, LLC, of Tallahassee, FL, argued for plaintiff.

Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, argued for defendant. With her on the brief were 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director,

and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Scott D. McBride, 

Assistant Chief Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, 

US. Department of Commerce, Washington, DC. 

Restani, Judge: This matter is before the court on plaintiff Neo Solar Power Corporation 

(“NSP”)’s motion for judgment on the agency record pursuant to U.S. Court of International 

Trade Rule 56.1. Pl.’s Mot. for J. upon the Agency R. Pursuant to Rule 56.1, ECF No. 30. For 

the reasons stated below, the motion is denied. 

BACKGROUND

NSP is a producer and exporter of certain crystalline silicon photovoltaic (“CSPV”) 

products from the Republic of China (“Taiwan”). Decl. of Henry Chen in Supp. of Mot. for 
Court No. 16-00088 Page 2 

Prelim. Inj. ¶ 4, ECF No. 6 (“Chen Decl.”). On February 18, 2015, the U.S. Department of 

Commerce (“Commerce”) published an antidumping (“AD”) duty order covering such 

merchandise. Certain Crystalline Silicon Photovoltaic Products from Taiwan: Antidumping 

Duty Order, 80 Fed. Reg. 8596, 8596 (Dep’t Commerce Feb. 18, 2015) (“AD Order”). NSP 

asserts that Commerce improperly excluded it from the administrative review of that AD order, 

which covered entries from July 31, 2014, through January 31, 2016, because its request for 

review was not submitted by February 29, 2016, the last day of the anniversary month of the 

order. Compl. ¶¶ 1, 5, 7–8 ECF No. 4. 

Commerce must review annually the amount of AD duties “if a request for such a review 

has been received.” 19 U.S.C. § 1675(a)(1) (2012). Such requests are due during the 

anniversary month of Commerce’s publication of the AD order. 19 C.F.R. § 351.213(b). On 

February 3, 2016, Commerce published a Notice of Opportunity to Request Administrative 

Review for the AD order on CSPV from Taiwan in the Federal Register indicating that requests 

for review were due “[n]ot later than the last day of February 2016,” which was February 29th.

Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to 

Request Administrative Review, 81 Fed. Reg. 5712, 5713 (“Review Req. Notice”). Per 

Commerce’s regulations, parties are to file their request for review via Commerce’s 

Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). 19 

C.F.R. § 351.303(b)(2)(i); see Review Req. Notice, 81 Fed. Reg. at 5715. 
Court No. 16-00088 Page 3 

NSP asserts that on February 29, 2016, it was unable to file its review request 

electronically because it experienced technical issues with ACCESS.1 NSP Req. for Review at 

1–2, PD 3 (Mar. 4, 2016) (“Req. for Review”). NSP asserts it then attempted to mail a hardcopy 

of its request by expedited DHL courier. Id. at 2; Chen Decl. ¶ 14. Because February 29, 2016, 

was a national holiday in Taiwan, however, DHL did not pick up the package until March 2, 

2016, and did not deliver it until March 3, 2016. Chen Decl. ¶ 14. Meanwhile, NSP asserts that,

on March 1, 2016, it asked a Washington, DC law firm to hand-deliver the review request, but 

the law firm declined to do so. Req. for Review at 2. On March 2, 2016, NSP’s counsel in 

Florida contacted Brenda E. Waters, listed on Commerce’s Review Req. Notice as the 

appropriate contact person, to notify Commerce of the situation. Id. On March 4, 2016, NSP 

successfully resubmitted its request for review via ACCESS. Id. at 1; see also NSP Req. for 

Recons. at 2, PD 6 (Mar. 11, 2016) (“Req. for Recons.”).

On March 8, 2016, Commerce rejected NSP’s request to be included in the review as 

untimely. Letter Rejecting Req. for Review at 1, PD 4 (Mar. 8, 2016). On March 11, 2016, NSP 

filed a request for reconsideration. Req. for Recons. at 1. On March 21, 2016, Commerce 

rejected NSP’s request for reconsideration because it found there were no “extraordinary 

circumstance[s]” under 19 C.F.R. § 351.302(c) and no “good cause” under 19 C.F.R. 

1 It is unclear whether NSP’s technical issues were the fault of NSP or Commerce. NSP argues 

that Commerce is to blame, and alleges that NSP’s counsel in Florida was unable to file 

documents on ACCESS from March 2–11, 2016, via its Comcast IP. See Email(s) 1–2, ECF No. 

31-4 (“Email(s)”) (stating on March 9th that “[Commerce] ha[s] been informed that Comcast 

users are not able to get connected to ACCESS, . . . .”). This fact, however, does not necessarily 

mean that Commerce caused NSP’s counsel in Taiwan to be unable to file an extension request 

electronically on February 29th as NSP was able to file on March 4th. Regardless, as discussed 

below, who was to blame for the technical issue is irrelevant. 
Court No. 16-00088 Page 4 

§ 351.302(b). See Letter Rejecting Req. for Recons., PD 7 (Mar. 21, 2016) (“Req. for Recons.

Rejection”). On April 7, 2016, Commerce published a notice of initiation of an administrative 

review for CSPV from Taiwan that excluded NSP from the review. See Initiation of 

Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 20,324, 20,334 

(Dep’t Commerce Apr. 7, 2016). 

NSP argues that Commerce unreasonably denied its extension request for a variety of 

reasons. Br. in Supp. of Pl.’s Rule 56.1 Mot. for J. upon the Agency R. 7–14, ECF No. 30-1 

(“NSP Br.”). The government relies on exhaustion of administrative remedies defense and also 

defends the decision on the merits. Def.’s Resp. in Opp’n to Pl.’s Rule 56.1 Mot. for J. upon the 

Agency R. 7–28, ECF No. 36 (“Gov’t Br.”). 

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (2012). The court will hold 

unlawful an action by Commerce if it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A); see 28 U.S.C. § 2640(e) 

(directing the court to evaluate 28 U.S.C. § 1581(i) cases under the standards set forth in the 

Administrative Procedure Act). Moreover, Commerce abuses its discretion if its “decision (1) is 

clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; . . . or 

(4) follows from a record that contains no evidence on which [Commerce] could rationally base 

its decision.” Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1182 (Fed. Cir. 1994) (quoting 

Gerritsen v. Shirai, 979 F.2d 1524, 1529 (Fed. Cir. 1992)). 
Court No. 16-00088 Page 5 

DISCUSSION

I. Administrative Remedies Were Exhausted

The government contends the court should not consider NSP’s arguments regarding 

“extraordinary circumstance[s]” because NSP failed to raise the issue before Commerce. Gov’t 

Br. at 12–13. NSP responds that “[a]lthough the magic word ‘extraordinary circumstances’ was 

not used in the [March 11th] letter, NSP did present the essential elements for what it claimed to 

be extraordinary circumstances: the day of attempted filing was a Taiwanese holiday and the 

ACCESS website [sic] not accessible to NSP.” Pl.’s Reply to Def.’s Resp. in Opp’n to Pl.’s 

Mot. for J. upon the Agency R. 9–10, ECF No. 38 (“NSP Reply Br.”). 

The court generally requires the exhaustion of administrative remedies. 28 U.S.C. 

§ 2637(d); see Carpenter Tech. Corp. v. United States, 30 CIT 1595, 1598, 464 F. Supp. 2d 1347,

1349 (2006) (requiring administrative exhaustion prevents the court from “having to sort through 

post hoc rationalizations of agency counsel”). NSP did not fail to exhaust, however, the issue of 

whether “extraordinary circumstance[s]” prevented it from timely filing an extension request. 

Although NSP did not use the exact words “extraordinary circumstance” in explaining why it 

failed to timely make a review request, NSP provided its reasons for the failure to Commerce—

technical issues with ACCESS and a holiday in Taiwan on February 29th. Req. for Review at 1–

2. Even though NSP connected these claims of mitigating circumstances to its failure to timely

submit a review request, rather than an extension request, Commerce understood that NSP 

intended these arguments to apply to both. See Req. for Recons. Rejection at 2 (“[W]e find that: 

(1) there were no extraordinary circumstances that prevented [NSP] or its representatives from 

filing a timely request for an administrative review or an extension request as required by 19 
Court No. 16-00088 Page 6 

C.F.R. § 351.302(c)[.]” (emphasis added)). Because NSP raised the “extraordinary 

circumstance[s]” issue, NSP did not fail to exhaust its administrative remedies.

II. Commerce Properly Denied the Request for Extension of Time to File the Review

Request

NSP argues Commerce abused its discretion by finding that NSP failed to comply with

19 C.F.R. § 351.303(b)(2)(ii)(C)’s requirement of “promptly” notifying Commerce about 

technical issues and “suggest[ing] alternative forms in which to submit the information” because 

NSP contacted Commerce on March 2nd and filed by paper on March 3rd. See NSP Br. at 13. 

NSP also contends that Commerce abused its discretion by failing to find that “extraordinary 

circumstances” existed in “[t]he combination of the day of attempted filing being a Taiwanese 

holiday, the ACCESS website not being accessible to the NSP and the lack of instruction in the 

[Review Request Notice] regarding technical difficulty.” Id. at 14. NSP further argues that 

Commerce unreasonably concluded that “good cause” did not exist under 19 U.S.C. 

§ 351.302(b) to accept NSP’s untimely review request. See id. at 10–12. NSP also submits that

Commerce’s decision not to accept NSP’s late review request is an abuse of discretion because 

the interests of accuracy and fairness outweigh any burden on Commerce or finality concerns. 

Id. at 7–10.

The government responds that Commerce reasonably determined that NSP did not 

“promptly” notify Commerce of technical issues, and did not “suggest alternative forms” of 

filing as required by its regulation. Gov’t Br. at 9, 17, 21–22. The government also contends 

that Commerce reasonably determined that no “extraordinary circumstance[s]” prevented 

plaintiff from timely filing an extension request. Id. at 10–12, 13–21. Lastly, the government 
Court No. 16-00088 Page 7 

argues that even if “extraordinary circumstance[s]” existed, there was no “good cause” to grant 

NSP’s extension request. Id. at 21–24. 

Commerce may extend certain time limits “for good cause,” including time limits for 

requesting review. See 19 C.F.R. §§ 351.302(b), 351.213(b). Commerce may extend a time 

limit for “good cause” on its own. Id. § 351.302(b).2 Otherwise, a party must request an 

extension of time “[b]efore the applicable time limit,” at which point Commerce determines if 

“good cause” exists to extend the time limit. Id. § 351.302(b), (c); see Tri Union Frozen Prods., 

Inc. v. United States, 163 F. Supp. 3d 1255, 1293 (CIT 2016) (“Commerce cannot be expected to 

extend its deadline . . . without a request from [the filer].”).

Extension requests must be filed electronically in accordance with 19 C.F.R. § 351.303. 

19 C.F.R. § 351.302(c). Under 19 C.F.R. § 351.303(b)(2)(ii)(C), if a party cannot comply with 

the electronic filing requirement, the party must “promptly” notify Commerce of the reasons the 

party cannot comply, and “suggest alternative forms” to file. 

If a party’s extension request is untimely, Commerce considers the extension request for 

“good cause” only if an “extraordinary circumstance” exists. 19 C.F.R. § 351.302(c)(1); 

Maverick Tube Corp. v. United States, 107 F. Supp. 3d 1318, 1330 (CIT 2015). “An 

extraordinary circumstance 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.” 19 C.F.R. § 351.302(c)(2). 

“Commerce has broad discretion to establish its own rules governing administrative 

procedures, including the establishment and enforcement of time limits.” Yantai Timken Co. v. 

2

 NSP does not argue that Commerce acted unreasonably in failing to sua sponte find “good 

cause.” See NSP Reply Br. at 13, 18. Thus, the court does not address this possibility. 
Court No. 16-00088 Page 8 

United States, 31 CIT 1741, 1755, 521 F. Supp. 2d 1356, 1370 (2007); see also Am. Farm Lines 

v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970) (“[i]t is always within the discretion of . . .

an administrative agency to relax or modify its procedural rules adopted for the orderly 

transaction of business before it when in a given case the ends of justice require it.”). “Strict 

enforcement of time limits and other requirements is neither arbitrary nor an abuse of discretion 

when Commerce provides a reasoned explanation for its decision.” Maverick Tube Corp., 107 F. 

Supp. at 1331. 

First, NSP’s technical issues, by themselves, were not an “extraordinary circumstance.” 

NSP could have ameliorated harm caused by technical problems by taking “reasonable 

measures.” See 19 C.F.R. § 351.302(c)(2)(i). For instance, NSP could have contacted the 

ACCESS Help Desk before the deadline expired to receive assistance with a response to the 

technical problem. Before Commerce, and here in arguing for good cause, NSP argues that inhouse counsel did not contact the Help Desk because it would have required NSP’s Taiwan inhouse counsel to work at midnight. NSP Br. at 11–12. Although there is a time difference 

between Taiwan and Washington, DC, contacting the Help Desk would have been a “reasonable 

measure.” Because the Help Desk opened at 8:30 am in Washington, DC, NSP Br. at 11, NSP’s 

in-house counsel could have called at 9:30 pm local time, a reasonable time, especially given the 

millions of dollars NSP says may be at stake, id. at 9.3

NSP also relies on Commerce’s statements accompanying the adoption of 19 C.F.R. 

§ 351.302 to argue that NSP’s technical issues constituted an “extraordinary circumstance.” See

3 The court takes judicial notice of the fact that Taiwan and Washington, DC are thirteen hours 

apart. See 28 U.S.C. § 2641(a) (“[T]he Federal Rules of Evidence shall apply to all civil actions 

in the Court of International Trade.”); Fed. R. Evid. 201 (providing for judicial notice). 
Court No. 16-00088 Page 9 

Extension of Time Limits, 78 Fed. Reg. 57,790, 57,793 (Dep’t Commerce Sep. 20, 2013). 

According to Commerce, “a technical failure of . . . ACCESS generally is not an extraordinary 

circumstance. . . . However, in certain, limited situations, [Commerce] may find that a technical 

failure of . . . ACCESS is an extraordinary circumstance if, for instance, the party and its 

representative are located outside of the DC metropolitan area and . . . ACCESS is continuously 

unavailable before the submission is due.” Id. NSP’s Taiwan in-house counsel was outside of 

the Washington, DC metropolitan area and experiencing a technical issue—possibly an internal 

problem, but possibly a “technical failure of ACCESS” attributable to Commerce. See Email(s) 

1–2. Even if NSP’s technical issue were a “technical failure of ACCESS,” however, the 

exception likely does not apply here because NSP claims only that ACCESS was unavailable at 

some point on February 29th, not that it was “continuously unavailable.” The court declines 

NSP’s invitation to assume, without evidentiary basis, that the “continuously unavailable” 

element was satisfied. Even if it were, NSP failed to comply with the requirements of 19 C.F.R. 

§ 351.303(b)(2)(ii)(C), which require a party who cannot comply with the electronic filing

requirement to “promptly” notify Commerce why and “suggest alternative forms” to file. NSP 

waited two days to contact Commerce, and did not timely file in an alternative form. Letter 

Rejecting Req. for Review at 1.

Second, that February 29th was a national holiday in Taiwan was not an “extraordinary 

circumstance” because it was not an “unexpected event,” as required by 19 C.F.R. 

§ 351.302(c)(2), given that NSP is a Taiwanese corporation, with counsel located in Taiwan.

Req. for Review at 5; Chen Decl. ¶ 3. It was not reasonable to wait until a known national 
Court No. 16-00088 Page 10 

holiday to attempt to make submissions and assume all would go smoothly on such a day, and if 

not, that manual filing would be approved and feasible.

Third, “the lack of instruction in the [Review Request Notice] regarding technical 

difficulty” was not an “extraordinary circumstance.” See NSP Br. at 14. NSP did not make this 

argument before Commerce, thus, even if it were an “extraordinary circumstance,” the court 

would not set aside Commerce’s determination on this basis. See Unemployment Comp. 

Comm’n of Territory of Alaska v. Aragan, 329 U.S. 143, 155 (1946) (“A reviewing court usurps 

the agency’s function when it sets aside the administrative determination upon a ground not 

theretofore presented . . . .”). Regardless, any “lack of instruction” is not an “extraordinary 

circumstance” because NSP could have prevented it by the “reasonable measure” of researching 

and reading the applicable regulations. See United States v. Int’l Minerals & Chem. Corp., 402 

U.S. 558, 563 (1971) (“The principle that ignorance of the law is no defense applies whether the 

law be a statute or a duly promulgated and published regulation.”); Review Req. Notice, 81 Fed. 

Reg. at 5715 (“All requests must be filed electronically in Enforcement and Compliance’s 

[ACCESS] on Enforcement and Compliance’s ACCESS Web site at http://access.trade.gov.”). 

Thus, Commerce reasonably concluded that no “extraordinary circumstance” justified NSP’s 

untimely filing of an extension request, and Commerce was not required to determine whether 

“good cause” existed for this failure. Commerce, however, acted reasonably in finding that 

“good cause” did not exist. NSP’s arguments for “good cause” are repetitive of NSP’s 

arguments for “extraordinary circumstances.” See NSP Br. at 10–13. For the reasons already 

stated, these arguments are unavailing. 
Court No. 16-00088 Page 11

Finally, the court has considered NSP’s argument that, even if “extraordinary 

circumstance[s]” and “good cause” did not exist, Commerce abused its discretion in not 

accepting NSP’s untimely review request because the interests of accuracy and fairness outweigh 

both the burden on Commerce and finality concerns. NSP Reply Br. at 18–20. A request for 

review is not a complicated filing. It requires no detailed facts and may be made anytime during 

the anniversary month. Further, there was no call to Commerce on the due day or the next day,

work days in the United States. This does not resemble Artisan Manufacturing Corp. v. United 

States, 978 F. Supp. 2d 1334, 1345–47 (CIT 2014), where a filing was made in time for the 

beginning of the next work day after the due date. Also, plaintiff does not allege that Commerce 

enforces these rules differently at different times. Apparently, Commerce is very strict and 

seldom, if ever, allows late requests for review, especially after a late extension request.4

Commerce does not allege any prejudice specific to this case, but it does allege the general 

prejudice stemming from late filings because of the strict statutory deadlines governing its 

determinations. The prejudice to plaintiff may end up being great5 as in Artisan Manufacturing 

Corp., but plaintiff made not one slip-up but at least three errors, failure to plan for 

contingencies, failure to call for help on February 29th, and failure to call on March 1st. See 978

F. Supp. 2d at 1347. Given the facts of this case and Commerce’s need to timely begin the 

process of respondent selection without waiting for late review requests, the claim of abuse of 

 

4 What Commerce would have done in this case if plaintiff had contacted it in a timely manner to 

seek an extension is unknown, as plaintiff forewent such a means of potential relief.

5 Counsel speculates that NSP might have been a mandatory respondent, which Commerce 

would actually examine, but this is all the more reason to be diligent about a timely request.
Court No. 16-00088 Page 12 

discretion fails. Commerce, therefore, reasonably declined to grant NSP’s extension request and 

reasonably refused to accept NSP’s review request. 

CONCLUSION

For the foregoing reasons, the court denies NSP’s motion for judgment on the agency 

record. Judgment will enter accordingly. 

Dated: December 1, 2016 /s/ Jane A. Restani 

New York, New York Jane A. Restani

Judge