36 I.T.R.D. (BNA) 1851
Ct. Int'l Trade2015Background
- Commerce investigated countervailing duties (CVDs) on aluminum extrusions from China; it sampled three largest exporters as mandatory respondents, none of which cooperated, so Commerce assigned them AFA-based rates.
- Two other companies submitted as voluntary respondents, received non-zero, non-de minimis, non-AFA individual CVD rates.
- Commerce regulation originally excluded voluntary respondents from the “all-others” rate; the Federal Circuit in MacLean‑Fogg V held voluntary respondents’ nonzero, non-AFA rates must be included in the all‑others weighted average under 19 U.S.C. § 1671d(c)(5)(A)(i).
- On remand Commerce excluded the AFA mandatory rates but included the two voluntary respondents’ rates; because public (ranged) versions of the voluntary respondents’ proprietary sales data were not on the record, Commerce used a simple average rather than a weighted average to avoid disclosing business proprietary information (BPI).
- AEFTC challenged Commerce’s use of a simple average and its refusal to reopen the record to obtain public‑ranged data; AEFTC also argued the two voluntary respondents were affiliated and should have a single rate.
- The court found Commerce’s use of simple averaging unreasonable because the statute requires a weighted average and Commerce had the regulatory tools (or could request public‑ranged data) to weight without disclosing BPI; remand required to remedy this error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two affiliated voluntary respondents should receive a single combined rate | AEFTC: affiliation required a single subsidy rate for both companies | Gov: affiliation alone does not establish cross‑ownership; regulations require cross‑ownership to attribute subsidies and combine rates | Held: Commerce reasonably found no cross‑ownership; separate rates sustained |
| Whether Commerce lawfully used a simple average for the all‑others rate instead of a weighted average under 19 U.S.C. § 1671d(c)(5)(A)(i) | AEFTC: statute requires weighted average; Commerce should have obtained or created public‑ranged data to weight without revealing BPI | Gov: using a simple average avoided impermissible BPI disclosure and reopening the record was unnecessary and burdensome | Held: Commerce abused its discretion by using a simple average; remanded to obtain/apply public‑ranged data or otherwise compute a weighted average consistent with statute and BPI rules |
| Whether Commerce had to reopen the record on remand to obtain public summaries of BPI | AEFTC: Commerce should reopen or apply the public‑ranging formula in 19 C.F.R. § 351.304(c)(1) | Gov: no general duty to reopen on remand; resource concerns justify not reopening | Held: Given Commerce’s earlier choice not to enforce public‑version requirements (which caused the deficiency), it was unreasonable not to remedy the record; remand required to fix the missing public data |
| Whether Commerce’s prior practice of simple averaging in similar cases supports its remand choice | AEFTC: prior practices do not justify deviation from statutory weighted‑average requirement | Gov: relies on precedents where Commerce used simple averages when public data were missing | Held: Prior Commerce determinations do not justify the result here; the statutory preference for accuracy via weighting controls and Commerce must seek public ranges or apply the public‑ranging formula |
Key Cases Cited
- MacLean-Fogg Co. v. United States, 753 F.3d 1237 (Fed. Cir. 2014) (held voluntary respondents’ nonzero, non‑AFA rates must be included in all‑others weighted average)
- Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (discussed application of all‑others weighted average in antidumping/CVD context)
- Star Fruits S.N.C. v. United States, 393 F.3d 1277 (Fed. Cir. 2005) (standards on substantial evidence and agency review)