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US Court of International Trade approves lower rate for “first time/inexperienced” exporters

The United States Court of International Trade (‘CIT’) approved US Department of Commerce’s (‘Commerce’) re-determination upon remand by CIT, of arriving at lower rate of Anti-Dumping Duty for a first time Shrimp exporter from India.

CIT based its decision on the fact that –

  • The exporter adequately notified Commerce of its need for assistance, and that Commerce’s failure to provide sufficient assistance rendered its application of Adverse Facts Available (‘AFA’) unlawful.

  • The exporter was a small company and first-time respondent

  • Application of AFA requires a determination, “[a]t a minimum, that a respondent could comply, or would have had the capability of complying if it knowingly did not place itself in a condition where it could not comply,” and the facts in present case did not support application of AFA.

Commerce revisited its determination and arrived at weighted average dumping margin for the exporter as 27.66% as compared to earlier AFA rate of 110.90%. While reducing the rate, the Commerce stated “while we continue to find that we cannot rely on the Elque Group’s submitted costs,” the record nevertheless “provide[s] some basis to calculate a dumping margin for the Elque Group as facts otherwise available.”

The decision will help small exporters facing mammoth AD/CVD investigations conducted by the US for the first time.

In contrast, Indian provisions simply provide that “in a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it”. This makes it difficult for small- or first-time exporters to seek separate rate of duty despite their best efforts in Indian investigations and in most cases, the adverse facts are applied if responses are incomplete.

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