CIT Again Remands "Unreasonable" China Aluminum Extrusions CV All Others Rate
The Court of International Trade again remanded the all-others rate from the original countervailing duty investigation of aluminum extrusions from China (C-570-968). CIT continued to find that the ITA was within its rights to use only the mandatory respondents’ CV rates to calculate the all others rate. CIT also found its within the rights of the ITA to use only mandatory respondents’ AD rates determined using adverse facts available.1 But CIT said the ITA’s remand redetermination still did not explain how the 375.15% AFA CV for mandatory respondents rate was reasonable use as an all others rate, and remedial not punitive.
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Specifically, CIT took issue with the ITA’s calculation of the mandatory respondents’ AFA CV rate based on 100% use of all subsidy programs alleged in the petition, and the subsequent use of this CV rate to determine the all others rate. Plaintiffs, which include four domestic importers and one exporter of extruded aluminum, pointed out that never in the history of CV duty investigations has a company used all alleged programs, and no respondent in CV duty history has ever used more than half.
CIT said the ITA did not explain how the smaller companies included in the all others rate, which presumably are located in one province or town, can use subsidies that exist in other provinces or towns. Thus, said CIT, the ITA did not explain how the 375.15% all others rate is not punitive rather than remedial. CIT remanded to the ITA for further consideration of this issue.
1In the investigation at issue, all three mandatory respondents did not cooperate and received adverse facts available (AFA) CV rates of 375.15%, and the ITA relied on these rates rather than including voluntary respondents’ much lower rates to determine the all others rate.
(See ITT’s Online Archives 12040603 for summary of the first remand in this case, for the same reason that the ITA’s choice of the all other rate was unreasonable. See also ITT’s Online Archives 12061405 for summary of the CIT’s grant of plaintiff’s motion of reconsideration to consider the preliminary CV rate as well as the final CV rate.
(CIT Slip Op. 12-99, dated 07/30/12, Judge Pogue.)