Ali quartz notice — President Biden has identified inflation as his top economic priority, but his Commerce Department appears to have missed the memo. This summer, U.S. importers were caught off guard by a vindictive Commerce Department decision to raise tariffs on imported countertops from 3.19% to 161.56% ad valorem. This will bankrupt a number of US companies, cause layoffs, and raise housing prices.
The Commerce Department, as the federal agency in charge of enforcing antidumping laws in the United States, determines whether foreign producers are selling their goods in the United States at “unfairly” low prices and, if so, the amount of tariff required to raise the foreigner’s price so that it is no longer “unfair.” Much has been written about the methodological sleights of hand and pro-petitioner biases that pervade the antidumping administration in the United States. However, one does not need to be familiar with those facts to see how this law raises the cost of manufacturing inputs and final consumer goods, fueling rather than quelling inflation.
As demonstrated by the antidumping case involving “Quartz Surface Products” (i.e., “countertops”) from India, the process is riddled with procedural uncertainty, guilt by association, and capricious decision making that are incompatible with basic tenets of the rule of law.
Dumping is defined in antidumping law as the sale of a commodity in the United States by a foreign company at a price less than “normal value.” Typically, normal value is determined by the price of a comparable product in a comparison market (typically the foreign producer’s “home” market). Dumping magnitude (or “dumping margin”) is calculated by subtracting the export price from the normal value and dividing the difference by the export price.
As a result, if an Indian manufacturer sells countertops for $100 per square foot at home and $80 per square foot in the US, the dumping margin is (10080)/80, or 25%. However, the seemingly simple exercise of comparing prices and calculating dumping margins is riddled with subjective interference and methodological tricks that typically result in higher rates being calculated. Commerce retains significant authority over a variety of decisions that directly affect how the existence and magnitude of dumping is determined.
For example, Commerce is supposed to calculate individual antidumping rates for all known exporters, but the law allows it to assign rates based on an examination of a subset of exporters if the pool of exporters is so large that calculating individual dumping margins would be too onerous for the Commerce Department. Commerce examined the detailed records of two “mandatory respondents,” Pokarna Engineered Stone Limited (PESL) and Antique Marbonite, in the original countertop investigation. PESL and Antique were assigned rates of 2.67% and 5.15%, respectively, while the 51 companies that were not examined were assigned the “all others” rate of 3.19% — the average of the two mandatory respondents.
Importantly, these rates are based on sales that occurred during the investigation period and are estimates of dumping margins on prospective sales. The rates determine how much duty US importers of these countertops must deposit with US Customs and Border Protection at the time of importation. They are not the importers’ final duty liabilities, which are not determined until an administrative review of the sales and costs of the actual imports on which the deposits were posted is completed, which usually takes about a year.
This “retrospective” system of assessing final duties is unique to the United States — all other major trade partners assess and collect final duties upon importation — and creates enormous uncertainty among U.S. importers and retailers, who are forced to hope and pray that a Commerce Department analyst doesn’t wake up on the wrong side of the bed and take out his frustrations by dramatically inflating their customs liabilities.
Commerce published the shocking preliminary results of its administrative review of those sales in June 2022, finding that the antidumping duty rates for PESL and Antique were 0.00% and 323.12%, respectively, and the “all others” rate was an average of 161.56%. PESL’s records revealed no evidence of dumping, and Antique’s records were completely ignored.
Antique’s submission to the Commerce Department was due at 10 a.m. on May 16, 2022, but the company’s responses were submitted at 3 p.m., assuming the filing deadline was 5 p.m., as it usually is. As a result of this error, Commerce decided to reject the submission entirely and resorted to the “Adverse Facts Available” (“AFA”) methodology, which is reserved for respondent companies that are uncooperative with Commerce’s information requests.
In the process of imposing this 323.12% burden on one company for a minor infraction – a type of mistake Commerce has previously excused or penalized – 51 other exporters who had nothing to do with this error and are only linked to Antique’s response as a methodological convenience to Commerce are now saddled with a 161.56% duty, which means no access to the US market. Given that India accounts for roughly one-fourth of all imports of these products by volume, Americans should expect significant price increases in the future.
The most significant collateral damage, however, will be borne by US importers, who are now on the hook for a duty (tax) bill in excess of $300 million. These companies will never be able to recoup this enormous sum because the imported countertops were sold years ago and are now installed in homes, hotels, and offices across the United States. Many of the smaller businesses will go bankrupt because they are unable to absorb these unexpected, massive costs.
Because one company missed a deadline by five hours, this threat looms over US industries and the US economy. However, the Commerce Department did not need to go nuclear. Consider the basis of the AFA rate used to punish Antique as evidence that Commerce has grown very comfortable abusing its discretion (and just about everyone else). The 323.12% rate was an allegation made in the case’s original petition based on some sales quotes provided by PECL. The petitioners claimed that PECL was dumping by 323.12%.However, in the recent Commerce review, PECL was found to have a dumping rate of 0%. In other words, the Commerce Department’s AFA rate was already proven to be a fabrication by its own analysis and has no place on the record going forward.
Perhaps Commerce will relent and reconsider before issuing its final decision in the coming months. At the very least, the White House and members of Congress have compelling reasons to contact Secretary Raimondo.
Source: Forbes