Commerce Rightfully Included Sample Sales in AD Investigation, CIT Says

The Commerce Department did not violate the law when it included sample sales of quartz surface products from Pokarna Engineered Stone Limited in an antidumping investigation, the Court of International Trade said in an Aug. 25 order. Judge Leo Gordon said that there is nothing in the statute that requires Commerce to perform a bona fide sales analysis on paid U.S. sample sales during an antidumping investigation.

"It should go without saying that, without a legal requirement that Commerce perform such an analysis, there is no basis for the court to issue an affirmative injunction that Commerce must conduct a bona fide sales analysis on PESL’s paid U.S. sample sales," the judge said.

The case concerned the antidumping investigation into certain quartz surface products from India. Pokarna said that Commerce should have conducted this bona fide sales analysis for its U.S. sales, which would have led the agency to exclude the sale of product samples. But Commerce has a simple practice: any "transfer of ownership to an unrelated party" is a sale. So the sample sales were included in the antidumping investigation.

Pokarna also argued that a sense of "fundamental fairness" dictates that these sample sales should be excluded. "This fairness 'angle' is not persuasive though," Gordon said, "especially when measured against the specific objectives of the 'bona fide sales' provision, as well as the differences between new shipper/administrative reviews, and investigations."

Prior to the decision, Gordon also dealt Pokarna a blow in its litigation when he said in a letter that Commerce does not need to "poll the industry" to find out if over half of the domestic industry supports an antidumping or countervailing duty petition (see 2108160054). The judge said that consolidated plaintiff M S International's request for a remand directing Commerce to poll the industry for the contested AD/CVD petition was a misunderstanding of the law.

(Pokarna Engineered Stone Limited v. United States, Slip Op. 21-107, CIT Consol. # 20-00127, dated 08/25/21, Judge Gordon. Attorneys: Lizbeth Levinson of Fox Rothschild for plaintiff Pokarna; Joshua Kurland for defendant U.S. government)