Tai Shan City Kam Kiu Aluminium Extrusion Co. v. United States
2015 CIT 138
Ct. Intl. Trade2015Background
- Kam Kiu (Tai Shan City Kam Kiu Aluminium Extrusion Co.) failed to timely submit a quantity & value questionnaire in the first CVD administrative review of aluminum extrusions from the PRC; Commerce applied adverse facts available (AFA) instead of using Kam Kiu’s missing data.
- In the Final Results Commerce assigned Kam Kiu an AFA rate of 121.22% by attributing (a) numerous location-specific subsidies across the PRC and (b) an Export Rebate Program, using proxy rates from other proceedings.
- Kam Kiu challenged the AFA rate as uncorroborated and punitive; the Court of International Trade (CIT) sustained Commerce’s use of AFA but remanded because Commerce failed to corroborate that Kam Kiu could have benefited from all identified programs simultaneously.
- On remand Commerce (under protest) narrowed location-specific subsidies to those available in the area immediate to Kam Kiu’s mailing address in Guangdong Province, retained the Export Rebate Program attribution, and recalculated Kam Kiu’s AFA at 79.80%.
- Kam Kiu abandoned its challenges to the Export Rebate and aggregate AFA corroboration on remand; parties asked the court to sustain Commerce’s remand determination; Commerce maintained the remand position under protest to preserve appeal rights.
- The CIT reviewed whether Commerce’s remand redetermination complied with the remand order, was supported by substantial evidence, and was consistent with law, and ultimately sustained Commerce’s Remand Results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce reasonably used AFA for Kam Kiu | Kam Kiu argued Commerce improperly attributed wide-ranging location-specific subsidies and the Export Rebate to Kam Kiu, rendering the AFA rate uncorroborated and punitive. | Commerce argued resort to AFA was reasonable given Kam Kiu’s untimely submission and record gaps. | Court: Commerce reasonably used AFA; remand required only for corroboration. |
| Corroboration of location-specific subsidies | Kam Kiu argued Commerce failed to corroborate that Kam Kiu could simultaneously benefit from location-specific subsidies across the PRC. | Commerce initially attributed subsidies nationwide; on remand limited attribution to subsidies available in the area immediate to Kam Kiu’s mailing address, contending that available record evidence corroborates those localized attributions. | Court: Remand approach (limiting subsidies to immediate area and corroborating via mailing address and prior calculated rates) is supported by substantial evidence and complies with remand. |
| Corroboration of Export Rebate Program | Kam Kiu argued Commerce did not show how Kam Kiu could have availed itself of the Export Rebate Program; evidence that mandatory respondents did not use it undermined attribution. | Commerce relied on evidence from the investigation showing a voluntary respondent in Guangdong used the program and applied the appropriate proxy rate consistent with its hierarchy. | Court: Commerce’s explanation and reliance on the voluntary respondent + Kam Kiu’s Guangdong location sufficiently corroborate attribution; sustained. |
| Whether Commerce must corroborate the aggregate AFA rate separately | Kam Kiu (and CIT concerns) argued that compiling multiple adverse inferences produced a punitive aggregate rate and Commerce should corroborate the aggregate figure against cooperating respondents’ rates. | Commerce maintained its obligation is to corroborate the individual program rates to the extent practicable, not to separately corroborate the summed aggregate or compare it to mandatory respondents’ margins. | Court: Commerce need not separately corroborate the aggregate if it corroborates the individual program rates used to build the aggregate; Commerce met that requirement here. |
Key Cases Cited
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir.) (AFA must be corroborated to relate to respondent; secondary information requires probative value)
- F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir.) (AFA rate must be a reasonably accurate estimate of respondent’s actual rate with deterrent element)
- Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir.) (Commerce must balance accuracy and inducement to cooperate)
- Viraj Group, Ltd. v. United States, 343 F.3d 1371 (Fed. Cir.) (Commerce may adopt positions under protest to preserve appeal rights)
- Ad Hoc Shrimp Trade Action Committee v. United States, 802 F.3d 1339 (Fed. Cir.) (statutory amendment to corroboration standard applies prospectively)