CAFC Affirms China-Wide Rate for Previously Separate Rate Company
The Court of Appeals for the Federal Circuit affirmed a lower court ruling in favor of the 2008-09 antidumping duty administrative review on laminated woven sacks from China (A-570-916). Shapiro Packaging challenged the Commerce Department’s decision to assign respondent Zibo Aifudi a higher China-wide rate because of its decision to stop participating midway through the review, which meant Commerce couldn’t verify the company’s submissions on independence from government control. But the appeals court on June 24 said no law prohibits Commerce from disregarding information it can’t verify, and affirmed.
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In the original investigation, the Commerce Department had found respondent Zibo Aifudi Plastic Packaging to be free of central government control and entitled to its own “separate rate.” The agency continued its finding in the preliminary results of the 2008-09 review. But Aifudi withdrew its participation in the review shortly after the preliminary results, and took its confidential information off the record. Consequently, Commerce couldn’t send analysts to verify the information the agency’s original separate rate determination was based on.
Aifudi’s U.S. affiliate AMS Associates, dba Shapiro Packaging, appealed a 2012 Court of International Trade ruling in favor of Commerce’s decision to apply the China-wide rate. The appeals court did not rule in their favor. The burden fell on Aifudi to prove that it runs independent of government control, it said. And the law allows Commerce to use “other facts available” when faced with unverifiable information. Because the agency couldn’t verify Aifudi’s separate rate information because of that company’s own lack of cooperation, it was reasonable to find Aifudi to be government controlled and part of the China-wide entity on the basis of adverse facts available, the court said.
(AMS Associates, Inc. v. U.S., CAFC No. 12-1688, dated 06/24/13, Judges Taranto, Lourie, and O’Malley)
(Attorneys: Ronald Wisla of Kutak Rock for plaintiff-appellant AMS Associates, Inc.; Tara Hogan for defendant-appellee U.S. government; Jeffery Denning of King & Spalding for defendants-appellees Laminated Woven Sacks Committee, Coating Excellence International, LLC, and Polytex Fibers Corporation)