CIT Affirms Recalc of All Others Rate from China Aluminum Extrusions CV Duty Investigation
The Court of International Trade affirmed a recalculation of the all others rate determined in the countervailing duty investigation of aluminum extrusions from China (C-570-968), after having remanded the International Trade Administration’s “unreasonable” 374.15 percent rate twice previously. The all others CV rate had been based on 100% use of all subsidy programs alleged in the petition, because it was derived from the adverse facts available rates assigned to the mandatory respondents. In its recalculation, the ITA cut down on the number of subsidy programs used to set the rate for the all others companies, finding a CV rate of 137.65 percent. CIT also affirmed the all others CV rate from the preliminary determination.
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CIT had remanded the all others CV rate because it said the rate could not be tied to actual conditions, and was therefore punitive, not remedial. In its recalculation, the ITA used only 29 subsidy programs, rather than the 54 programs identified in the petition and used to calculate the original all others rate, as well as the AFA rates for the mandatory respondents. Plaintiffs, which include four domestic importers and one Chinese company, challenged the ITA recalculation because it still included subsidy programs from provinces where the all others companies have no presence, and failed to look at historic trends when deciding usage rates of the subsidy programs.
The court agreed with the ITA’s explanation that, because the data submitted by plaintiffs to show the all others companies had no presence in the provinces at issue was unsubstantiated, it could not rely on the data to exclude subsidy programs from its calculation. For example, the all others companies could have had affiliates or facilities in those provinces, the ITA said. The assumptions guiding the ITA’s decision were reasonable given the incomplete record, CIT said. “Plaintiff’s efforts to demonstrate that the current rate is not a perfect fit and to provide alternative rates are not without weight, but Commerce’s obligation is only to provide a reasonable rate, not a perfect one.”
Turning to the issue of usage rates, CIT said the ITA was faced with the difficult task of determining the all others rate using limited information. But plaintiffs could have asked to be voluntary respondents, and failed to do so. Their effort to show that historic trends support lower usage rates is “the type of effort and cooperation that the court would hope parties would provide when they are individually investigated, whether as mandatory or voluntary respondents,” CIT said. Thus, the court affirmed the usage rates component of the ITA’s calculation, and said plaintiffs would have the opportunity to ask for voluntary status in an administrative review.
(See ITT’s Online Archives [Ref12040603:] for summary of original remand, and 12061405 for summary of reconsideration to allow review of the preliminary rate as well. See ITT’s Online Archives 12080107 for summary of the second remand.
(MacLean-Fogg Co. v. United States, Slip Op. 12-146, dated 11/30/12, Judge Pogue)
(Attorneys: Thomas Keating of Hodes Keating & Pilon for plaintiffs McLean-Fogg Co. and Fiskars Brand, Inc.; Mark Lehnardt of Lehnardt & Lehnardt for plaintiff-intervenors Eagle Metal Distributors and Ningbo Yili Import & Export Co., Ltd.; Craig Lewis of Hogan Lovells for plaintiff-intervenor Evergreen Solar; Tara Hogan for defendant U.S. government; Stephen Jones of King & Spalding for defendant-intervenor Aluminum Extrusions Fair Trade Committee)