AFA 323.12% Duty for Deadline Missed by 5 Hours an Abuse of Discretion, CIT Says
An Indian quartz countertop exporter had the 323.12% adverse facts available antidumping duty assigned to it remanded by the Court of International Trade on May 28.
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CIT Judge Mark Barnett, who appeared to have been leaning in that direction in oral arguments held in March (see 2403220052), said in his opinion that the Commerce Department’s decision to apply AFA to exporter Antique Group because it missed a 10 a.m. filing deadline by five hours was an abuse of the department’s discretion. He ordered the department to accept and consider the exporter’s submission upon remand.
The department usually only allows exporters to file late when an “extraordinary circumstance” has occurred. However, the judge said Commerce must waive its extraordinary circumstance rule for accepting late submissions if not doing so would be abusing its discretion.
He also said Commerce failed to justify its departure from the default 5 p.m. deadline when it set a 10 a.m. deadline for Antique Group. The department is wrong that that one section of the law governing its deadlines, section 351.302, “operates independently” of another, section 351.303(b), he said. The former allows the department to extend filing deadlines; the latter sets 5 p.m. as the default time at which a filing will be due.
Though Commerce has the discretion to change its default deadlines, it must provide an explanation for doing so “such that its corresponding rejection of Antique Group’s submission was reasonable,” the judge said.
AFA, too, is unwarranted in this case, and would have been even if the court did choose to uphold Commerce’s deadline, Barnett said. He said that one error on the part of an exporter was not enough to show the exporter hadn’t cooperated to the best of its abilities.
“No party questions that this untimely submission was inadvertent,” he said.
Barnett also addressed the claims brought in the same case by petitioner Cambria Company. The petitioner is contesting the department’s decision to not use the expected method when it calculated nonselected respondents’ rates. The department looked to rates received in the prior review to set the nonselected respondents’ duty at 3.19%, rather than the 161.65% that would have resulted from the expected method, saying the latter didn’t reflect commercial reality (see 2311300052).
But the evidence Commerce relied on to make that point was inadequate, Barnett said. The current litigation involves only the second-ever review of Indian quartz countertops, so the department determined to depart from the expected method due only to the information from one prior review, he said.
“Commerce fails to identify substantial evidence to establish that any one segment is more representative than a single other segment,” he said.
He ordered Commerce to “reconsider or further explain any decision” to calculate the nonselected respondents’ rate without using the expected method.
(Cambria Company v. U.S., Slip Op. 24-62, CIT # 23-00007, dated 05/28/2024; Judge: Mark Barnett; Attorneys: Luke Meisner of Schagrin Associates for plaintiff Cambria Company; Jonathan Stoel of Hogan Lovells for consolidated plaintiffs Arizona Tile, M S International and PNS Clearance; Sezi Erdin of Trade Pacific for consolidated plaintiffs Antique Marbonite Private Limited, Prism Johnson Limited and Shivam Enterprises; Collin Mathias for defendant U.S. government; Julie Mendoza of Morris Manning for defendant-intervenor Federation of Indian Quartz Surface Industry; and David Craven for defendant-intervenor APB Trading)