Excessive Application of AFA Runs Against 8th Amendment, Pasta Exporter Argues
In a Sept. 4 motion for judgment, an Italian pasta exporter whose countervailing duty rate jumped from under 2% to 88.67% due to the application of adverse facts available again argued that, based on the Eighth Amendment, AFA must still be assessed accurately and not be calculated to destroy a company entirely (see 2402290018) (Pastificio Gentile S.r.l. v. U.S., CIT # 24-00037).
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
Exporter Pastificio Gentile, a mandatory respondent to the CVD review, said in its motion that the Commerce Department halted verification of its questionnaire responses on the second day and switched to use of AFA after “ascertaining that certain data for certain small technically related entities was not submitted.” These entities weren’t involved in the production or exportation of pasta, and, though they were not included in the affiliated parties questionnaire response, they were mentioned elsewhere, it said.
Neutral facts available should have been applied instead, it said.
“A fundamental principle of law is that of De Minims Non Curat Lex which is translated as the Law does not govern trifles,” Pastificio’s lawyer, David Craven, said in the brief.
The exclusion of these cross-owned companies was a “harmless error,” something Commerce could have easily verified had it not ended verification early, Pastificio said. It said the department’s decision to end verification on the second day had been an abuse of discretion because “it prevented the Department from confirming the other information submitted, from making an accurate determination, and complying with the requirement that the Department calculate an accurate margin.”
Should the U.S. claim otherwise during litigation, its attorneys would be in violation of the Rules of Professional Responsibility, which prohibit lawyers from offering evidence they know to be false, the exporter said.
Pastificio also argued that its 88.67% rate countervailed subsidies it had already proven it hadn’t used.
And, finally, the duty calculated was “not proportional to the conduct to be punished or deterred and thus is contrary to the limitations of the 8th Amendment and cannot stand,” it said. It called the multiplication of the 1.79% rate calculation for Pastificio in the preliminary review by more than 40 in the final results to be “per se excessive.”