Commerce Defends AFA Rate for Importer Who Missed Filing Deadline by Five Hours

DOJ in a Nov. 20 brief once again defended its right to use adverse facts available in calculating an Indian quartz surface product exporter's antidumping duty rate after that importer missed a filing deadline by several hours. It also stood by its all-others rate for other Indian quartz exporters against a domestic petitioner's challenge (Cambria Company v. U.S., CIT # 23-00007).

During its administrative review covering entries in 2021, the Commerce Department relied on AFA to set Antique Group’s duty at 323.12% after Antique Group submitted a supplemental questionnaire roughly five hours past its deadline. As a result, AD rates for the nonselected respondents were initially set at a 161.65% average rate via the expected method, which includes AFA rates in the average. In January 2023, Commerce changed course and instead used the “all others” rate from the original AD investigation to lower the nonselected respondents’ AD to 3.19%, after finding that the 161.65% mark didn't match commercial reality, although it left Antique Group’s AD rate untouched.

Antique Group argued Commerce abused its discretion when it rejected Antique Group’s late questionnaire and subsequent request for a deadline extension, claiming Commerce has a “second chance” practice that should have applied. It also challenges Commerce’s resultant use of AFA to calculate Antique Group’s AD rate.

In its motion for judgment, Antique Group said it was a first-time mandatory respondent that had been overwhelmed by one of Commerce’s supplemental questionnaires, which it said contained over 200 questions and requests. After two deadline extensions totaling 12 days, it submitted the questionnaire around 3 p.m., roughly five hours past a morning deadline of 10 a.m. Antique Group said it mistakenly thought the usual 5 p.m. deadline had been in effect.

It retroactively sought another deadline extension from Commerce, but Commerce denied it, saying its situation didn't meet the threshold for extraordinary circumstances that late extensions require.

Antique Group said the five-hour delay would not have seriously impacted the department. It also argued that it should have been allowed to refile because it had never missed a deadline before and had taken steps to avoid doing so again. It said that, in the past, importers who could demonstrate such would be allowed a second chance by Commerce.

In its Nov. 20 response to Antique Group’s motion, DOJ said Commerce has broad discretion in setting and upholding its deadlines. It said the size of the burden caused by a missed deadline has no bearing on Commerce's decisions to accept late deadline extension requests, and that previous Commerce decisions weren't binding on it. Further, it denied Commerce having a standard practice of granting second chances to first-time deadline offenders.

DOJ also defended Commerce's use of the AFA duty rate for Antique Group as legal and appropriate. It said the rate was reasonable because Antique Group “failed to cooperate to the best of its ability” when it had been “careless or inattentive when reviewing the deadlines for its submissions.”

DOJ also responded to Cambria’s claim that the AD for nonselected Indian quartz surface product importers should have been set at 161.65% using the expected method, not at 3.19% using the original investigation's all-others method. The expected method takes into account mandatory respondents who receive AFA or de minimis rates, while the all-others method does not.

Cambria argued that the duty calculated using the expected method, supported by the AFA duty on Antique Group, was a reasonable representation of all respondents’ potential dumping margins. It also said Commerce shouldn't have relied on historical rates in calculating its all-others duty because they lacked “probative value.”

DOJ said substantial evidence indicated the duty reached by the expected method in this situation was “not reasonably reflective” of possible dumping margins for the nonselected respondents. Apart from Antique Group’s AFA rate, AD for Indian quartz importers have ranged from zero to 5.15%, it said. It also said Commerce regularly uses historical rates when setting antidumping duties.