The U.S. Court of Appeals Federal Circuit handed a win to a U.S. importer of glycine from China on January 23 when it determined that the U.S. Department of Commerce (DOC) could not amend a regulation promulgated through formal notice and comment rulemaking by means of a guidance document.

Specifically at issue was the DOC’s policy regarding extensions of time to withdraw from anti-dumping duty review requests. In accordance with the Administrative Procedure Act, the DOC promulgated rules for evaluating timely and untimely withdrawals from an administrative review:

  • (d) Rescission of administrative review—(1) Withdrawal of request for review. The Secretary will rescind an administrative review under this section, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so. See 19 C.F.R. § 351.213(d)(1).

However, in 2011, the agency published a guidance document that indicated that extensions would only be granted under extraordinary circumstances. This new position effectively changed the last sentence of the regulation.

In 2012, Chinese glycine exporter Baoding Mantong and U.S. producer of chemicals GEO Specialty Chemicals (GEO) separately requested an administrative review of an anti-dumping order on imports of glycine from China. After Commerce announced that it was initiating the review, GEO filed a notice to withdraw its petition for review towards the end of the 90-day period. Baoding Mantong also filed its notice of withdrawal, accompanied with a request for extension of time to file its withdrawal, shortly after the 90-day period expired.

Commerce denied Baoding’s request to extend the 90-day time limit for a withdrawal, thus causing the withdrawal to be ineffective. That led the U.S. importer of glycine manufactured by Baoding Mantong, Glycine & More, to appeal to the U.S. Court of International Trade (CIT), arguing that Commerce had violated its own regulation by amending the 2011 notice.

The CIT agreed with the plaintiff in 2015 and remanded the case, which led Commerce to issue Baoding an extension. GEO asked the Federal Circuit to overturn the CIT’s ruling because the CIT allegedly failed to give proper deference to the Secretary’s interpretation of its own amended regulation. However, the Federal Circuit aligned with the CIT and Glycine & More, arguing that the purpose of a guidance document is to clear up ambiguities within the regulation, not to amend the regulation in its entirety as the DOC had done in this instance.