India Quartz-Surfaces Tariff Review: Try Again

By Emerson Schwartkopf

NEW YORK – The special anti-dumping tariffs on India-made quartz surfaces will get another review, a federal judge decided here earlier this week.

The U.S. Commerce Department, along with quartz-producers and importers, have until June 27 to come up with a new plan to finish a review that began in 2021 on the tariffs.

In a “slip review” on May 28 from the U.S. Court of International Trade (CIT), Judge Mark Barnett remanded the review back to Commerce to iron out a process that led to a massive increase in tariff rates in 2022, only to have many of the changes rolled back in early 2023.

The court action centered on Commerce’s decision in May 2022 to reject a late document from a surface producer in India and revising a 3.19% tariff to rates ranging from 161.5% to 323%.

The producer in question – three companies known collectively as the Antique Group – was asked by the Commerce in the spring of 2022 to answer more questions about its business. The Antique Group asked for two extensions and submitted its final documents on May 11.

However, the second extension included a time deadline of 10 a.m. U.S. Eastern Time on that date, instead of the usual 5 p.m. U.S. Eastern Time attached to most Commerce requests. The Antique Group filed the documents on May 11 between 2:55 p.m.-3:45 p.m., and Commerce refused to accept them.

The Antique Group asked Commerce on three occasions to reconsider, but federal officials denied any further action. Commerce then used the anti-dumping margins offered in the original unfair-trade petition from U.S. producer Cambria Company LLC, attaching a 323.12% tariff on Antique Group products, and 161.56% on 51 other Indian producers (also called the “non-selected companies”) in the summer of 2022.

A lengthy re-review led Commerce in January 2023 to change the tariff on the 51 producers back to the original 3.19% but kept the high tariff for Antique Group products. The Antique Group, along with other producers in India, U.S. importers, and Cambria all filed challenges, which were combined into one case at the CIT.

Barnett noted that Commerce could change its usual deadlines, but federal officials didn’t provide sufficient reasons for the decision. If not for the advanced deadline, he noted, Antique Group’s filing would have been on time, and “no party questions that this untimely submission was inadvertent.

“Commerce’s decision to reject Antique Group’s submission was unreasonable and unsupported by substantial evidence, constituting an abuse of discretion,” the judge ruled.

Barnett also ruled against Commerce’s use of “adverse facts available” (AFA) to mete out the high tariff on Antique Group due to the late filing, and questioned Commerce’s use of “certain specific transactions” noted in Cambria’s original petition to validate the high rate.

“While Commerce is under no obligation to ensure that the corroborating sales, or the rate being corroborated, reflect Antique Group’s commercial reality, the distinct characteristic of these sales indicates that they are not relevant for purposes of corroboration,” the judge wrote in his decision.

Barnett also found that Commerce couldn’t support its tariff-rate rollback decision in January 2023.

At that time, Commerce cited that the proposed 161.5% rates wasn’t reflective of margins from the 51 Indian exporters during the total tariff review period of December 2019 through May 2021.  Cambria argued that this wasn’t the usual method used by Commerce.

“Commerce’s departure from the expected method in calculating the non-selected

company rate is not supported by substantial evidence,” Barnett wrote. “On remand, Commerce must reconsider or further explain any decision to depart from the expected method.”