CIT Remands LTAR Subsidy Determinations from China Citric Acid CVD Case
The Court of International Trade remanded parts of the 2008-09 countervailing duty administrative review on citric acid from China (C-570-938) related to Commerce’s calculation of inputs for less-than-adequate remuneration (LTAR) subsidies for RZBC. The court found that Commerce didn’t adequately explain its non-decision on a steam coal LTAR subsidy, and didn’t consider some evidence on pricing benchmarks it used to measure LTAR subsidy amounts.
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But CIT sustained Commerce’s decision to apply adverse facts available to RZBC because of the Chinese government’s noncooperation. The agency asked the Chinese government if RZBC’s sulfuric acid suppliers were controlled by Chinese Communist Party members to determine whether they were “authorities” as required to countervail LTAR subsidies. When the government of China didn’t respond to Commerce’s satisfaction, the agency effectively penalized RZBC by finding that the sulfuric acid was provided by subsidies for LTAR. Because Commerce had no alternative to get the information, “it is in accord with the law for Commerce to apply AFA to the GOC even though a cooperating party may be adversely impacted.”
CIT also sustained Commerce’s decision on RZBC’s creditworthiness as “reasonable,” in the face of numerous challenges from both RZBC and domestic producers. Commerce had relied on the creditworthiness determination to declare some loans provided by state-owned banks to be countervailable subsidies, because a private bank wouldn’t have provided them.
(Archer Daniels Midland Co. v. United States, Slip Op. 13-66, dated 05/28/13, public version 06/06/13, Judge Barzilay)
(Attorneys: Joseph Dorn of King & Spalding for plaintiffs Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle Americas LLC; Michael Holton of Barnes Richardson for plaintiffs RZBC (Juxian) Co., Ltd; RZBC Co., Ltd.; and RZBC Imp. & Exp. Co., Ltd.; Stuart Delery for defendant U.S. government; Richard Ferrin of Dinker Biddle for defendant-intervenor Yixing-Union Biochemical Co., Ltd.)