Tai Shan City Kam Kiu Aluminium Extrusion Co. v. United States
2015 CIT 21
Ct. Intl. Trade2015Background
- Kam Kiu, a Chinese producer/exporter of aluminum extrusions, was included in Commerce’s 2012-2013 administrative review of the countervailing duty order covering Chinese aluminum extrusions.
- Commerce issued quantity-and-value (Q&V) questionnaires (due Oct 18, 2012) to identify mandatory respondents; Kam Kiu’s Q&V response was filed over seven months late (June 3, 2013).
- Commerce selected mandatory respondents in early November 2012 based on timely data; it treated Kam Kiu as uncooperative for the preliminary and final results and applied total AFA (adverse facts available).
- Commerce assigned Kam Kiu a 121.22% AFA rate in the Final Results; cooperating mandatory respondents received much lower rates.
- Kam Kiu challenged (CIT Rule 56.2) Commerce’s disregarding of its late Q&V response and the AFA rate as unsupported by substantial evidence and contrary to law.
- The Court upheld Commerce’s discretion to ignore the late Q&V and to apply AFA, but remanded because Commerce failed to corroborate the aggregated AFA rate to the extent practicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce abused discretion by disregarding Kam Kiu’s late Q&V response and applying AFA | Kam Kiu: its late filing should have been considered; it had excusable reasons and less severe treatment was warranted | U.S.: deadlines and respondent-selection process require enforcing the Q&V deadline; Kam Kiu failed to act to the best of its ability | Court: upheld Commerce’s decision to disregard the untimely Q&V and apply AFA as reasonable and within discretion |
| Whether Commerce sufficiently corroborated the AFA rate applied to Kam Kiu | Kam Kiu: the AFA rate aggregates many program rates across China and is uncorroborated, punitive, and unrelated to Kam Kiu’s actual possible benefits | U.S.: AFA rate used program-specific rates from this and prior PRC proceedings and is probative | Court: remanded — Commerce must, to the extent practicable, corroborate that the aggregated AFA rate reasonably estimates Kam Kiu’s actual subsidy rate (current corroboration insufficient) |
Key Cases Cited
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (respondent must act to the best of its ability to avoid adverse inferences)
- F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (AFA rates must be a reasonably accurate estimate of respondent’s actual rate, with a deterrent increase)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (corroboration requirement limits punitive application of AFA)
- SKF USA Inc. v. United States, 263 F.3d 1369 (Fed. Cir. 2001) (similarly situated parties must be treated comparably unless explained)
- Essar Steel Ltd. v. United States, 753 F.3d 1368 (Fed. Cir. 2014) (upholding methodological AFA where record supported company’s connection to specific jurisdictional subsidies)
- Grobest & I-Mei Indust. (Vietnam) Co. v. United States, 815 F. Supp. 2d 1342 (Ct. Int’l Trade 2012) (example where rejecting untimely submission was an abuse of discretion under particular facts)