Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
the prior review , instead of financial statements from other Italian companies , because that information “ more closely simulates alternative ( B )( ii ) and consequently , the preferred method , in that it relies on sales of the foreign like product in the foreign country in the normal course of trade , rather than just relying on data from producers of the same general class of merchandise for world-wide sales during the POR … .” 58 In the instant review , Commerce does not have such concerns regarding Shiva Granito ’ s information . To the extent that Atar S . R . L . is applicable , the CAFC noted that Commerce is afforded deference in this matter : “{ m } oreover , the statutory language at issue here is ambiguous . Accordingly , Commerce is entitled to substantial deference in its choice of accounting methodology , and , as a reviewing court , we may not substitute one reasonable approach for another according to our own preferences .” 59
After considering the additional arguments raised by parties in their case and rebuttal briefs , and further examination of potential sources of CV information , we have relied on Shiva Granito ’ s financial statements submitted to the record as an appropriate source of CV information for PESL for these final results . Additionally , because the record does not contain any sales of the merchandise in the same general category of products as the subject merchandise for consumption in the foreign country , we are unable to calculate a profit cap in accordance with section 773 ( e )( 2 )( B )( iii ) of the Act . As such , Shiva Granito ’ s profit information serves as a reasonable “ facts available ” profit cap . 60
Comment 2 : Whether Commerce Should Accept Antique Group ’ s Supplemental Questionnaire Response
Antique Group ’ s Case Brief 61
� Section 351.302 ( c ) of Commerce ’ s regulations establishes that extraordinary circumstances are those that result in a situation that could not have been prevented had reasonable measures been taken or that precluded a party from timely filing an extension request . Commerce failed to adhere to this standard when it rejected Antique Group ’ s explanations for the late supplemental questionnaire submission .
� The CIT has found that deadlines must be waived where failure to do so results in an abuse of discretion , and the CAFC has accepted that minor mistakes happen and perfection cannot be required of respondents . 62
� Antique Group claims Commerce acknowledged that the 10:00 a . m . Eastern Time ( ET ) deadline was unanticipated and not a routine deadline time . Typically , Commerce normally will only deviate from the standard 5:00 p . m . ET deadline set in its regulations where there is an imminent deadline ; that was not the case in this instance , and Commerce could have granted Antique Group until 5:00 p . m . ET to submit its response , as it did for PESL for a deadline near the Preliminary Results .
58
See Notice of Final Results of the Ninth Administrative Review of the Antidumping Duty Order on Certain Pasta from Italy , 72 FR 7011 ( February 14 , 2007 ) ( Pasta from Italy 2004-2005 ), and accompanying IDM at Comment 2 .
59
See Atar S . R . L ., 730 F . 3d at 1329-30 .
60
See SAA at 841 ( recognizing that the profit cap may be determined using the facts available ).
61
See Antique Group ’ s Case Brief at 2-11 and 13 .
62
Id . at 8-9 ( citing Pro-Team Coil Nail Enterprise Inc . v . United States , 419 F . Supp . 3d 1319 , 1332 ( CIT 2019 ) ( Pro-Team Coil I ); and Nippon Steel Corp . v . United States , 337 F . 3d 1373 , 1374 ( Fed . Cir . 2003 ) ( Nippon Steel )).
11 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved