Quartz Product Importers Rail Against Commerce's Rejection of Untimely Submission at CIT

The Commerce Department should have considered antidumping duty respondent Antique Marbonite's untimely filed extension request, which led to the rejection of its second supplemental questionnaire, since extraordinary circumstances warranted a retroactive extension of the deadline, three importers argued in a Feb. 10 complaint at the Court of International Trade. Commerce also erred by failing to afford the plaintiff its "second chance" opportunity, given that Antique intended to meet the deadline and "promptly" told the agency it needed an extension "when it realized that it [had] not done so," plaintiffs Arizona Tile, M S International and PNS Clearance claimed (Arizona Tile v. United States, CIT # 23-00019).

The case concerns the first administrative review of the antidumping duty order on quartz surface products from India in which Antique and Pokarna served as mandatory respondents. During the review, Commerce issued Antique a second supplemental questionnaire, setting an original deadline of May 4, 2022, for submission. The respondent requested a two-week extension on April 30, 2022, to which Commerce gave the respondent until May 11, 2022, to file its brief. Antique then requested another one-week extension, to which the agency gave Antique until May 16, 2022, setting the deadline at 10 a.m. ET instead of the usual 5 p.m. ET.

Antique filed the second supplemental response between 2:56 p.m. and 3:45 p.m. ET on May 16, 2022, the importers said. The response was submitted at this time due to Antique's "lack of familiarity with deadlines outside of Commerce's standard 5:00 PM deadline," the complaint claimed. Commerce rejected the submission since it was untimely filed, leading to a 323.12% adverse facts available for the respondent.

As they did administratively, Arizona Tile, MSI and PNS Clearance now claim before the trade court that the rejection of this submission was unlawful given the "extraordinary circumstances" faced by the respondent. The importers decried Commerce's "extraordinary circumstances" standard, arguing that its use "is both unreasonable and arbitrary."

The importers also railed against Commerce's failure to apply its "second chance" practice. "Antique has met the standard laid out by Commerce since it clearly intended to meet the deadline and actually filed well before the typical 5:00 PM ET deadline set forth in Commerce’s regulations," the complaint said. "Further, Antique had not previously been extended this 'second chance' opportunity. The specific facts of this case call for the exercise of the Department’s 'second chance' practice, whereby Antique would be permitted its one opportunity to refile a late submission."

The six-count complaint also contested Commerce's use of AFA, citing a 2016 CIT case, Changzhou Trina Solar Energy Co. v. U.S., which said that the AFA statute "does not support the use of AFA on the basis of an inadvertent failure to cooperate." The record does not support the conclusion that Antique failed to cooperate to the best of its ability, meaning the use of AFA here was unlawful, the importers said. Even if AFA is upheld, however, the AFA rate used by Commerce was unlawful since it is punitive and "improperly corroborated."