2013 CIT 83
Ct. Int'l Trade2013Background
- Commerce investigated countervailing duties (CVDs) on aluminum extrusions from the PRC and found respondents received government-supplied primary aluminum and subsidized land-use rights.
- Commerce concluded Chinese market prices for primary aluminum were distorted and used a world market (tier-two) benchmark, adjusting it to include delivery charges and import duties per 19 C.F.R. § 351.511(a)(2)(iv).
- Plaintiffs (Zhaoqing New Zhongya Aluminum and Zhongya Shaped Aluminum (HK)) argued inclusion of import duties was improper because they paid no duties on imports from Hong Kong.
- Commerce selected the purchase price of a fully developed industrial park in Bangkok, Thailand as the benchmark for land-use rights and found Zhongya received a benefit from a 2006 land lease.
- Plaintiffs argued the specific plot Zhongya leased in 2006 was undeveloped and required substantial infrastructure work, so the Bangkok developed-park benchmark was not comparable.
- The Court affirmed Commerce’s import-duty adjustment but remanded Commerce’s land-benchmark finding for lack of substantial evidence that the plot was comparable to a fully developed industrial park in 2006.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce may include import duties when using world market (tier-two) benchmark for government-supplied primary aluminum | Inclusion inflates benchmark because plaintiffs paid no duties on Hong Kong imports | Regulations require adjusting world market price to reflect what a firm actually paid or would pay, including import duties; tier-one pricing was unavailable | Court upheld Commerce: inclusion of import duties is lawful and supported by regulation |
| Whether a fully developed Bangkok industrial-park purchase price is a comparable benchmark to Zhongya’s 2006 land-use lease | Land was undeveloped in 2006 and required infrastructure; Bangkok benchmark is not comparable | Commerce pointed to regional promotional materials and verification photos indicating infrastructure nearby | Court found Commerce’s record support unreasonable: remanded for reconsideration or further explanation |
Key Cases Cited
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (substantial-evidence review of agency decisions)
- Hontex Enter., Inc. v. United States, 248 F. Supp. 2d 1323 (Ct. Int’l Trade 2003) (agency must follow statute and regulations)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (courts must ensure agency weighing of evidence is reasonable)
- F. Lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (agency determines weight of evidence)
- Dorbest, Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010) (exhaustion of administrative remedies required)
- Constantine Polites v. United States, 780 F. Supp. 2d 1351 (Ct. Int’l Trade 2011) (court skepticism about reliability of promotional website evidence)
- Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242 (9th Cir. 1990) (distinguishing puffery from factual assertions on promotional materials)