DOJ Defends Commerce Use of AFA in Chinese Aluminum Sheet Case

The Commerce Department was not required to credit countervailing duty respondent Jiangsu Alcha Aluminum's claims of non-use of the Export Buyer’s Credit Program (EBCP) and correctly applied adverse facts available, DOJ said in a July 10 reply brief at the Court of International Trade. The brief came in reply to Alcha's April motion for judgment, in which it contested the agency's methodology during the administrative review of a countervailing duty order on common alloy aluminum sheet from China (see 2304170048) (Jiangsu Alcha Aluminum Co. v. U.S., CIT # 22-00290).

The Chinese government refused to participate in the review and entirely failed to answer questions regarding the operation of the EBCP, its use, and how to verify claims of non-use. Alcha claimed that Commerce should have credited its claims of non-use -- despite being unsubstantiated by any customer certifications. Commerce reasonably explained that gaps in the record resulting from the Chinese government’s non-cooperation prevented Commerce from verifying non-use, DOJ said. Alcha's claims were unsubstantiated by any customer certifications and the Chinese government's non-cooperation prevented Commerce from verifying non-use, DOJ said. CIT has sustained the use of AFA in similar cases and should do so again here, DOJ argued.

Commerce also correctly selected a 17% value-added tax rate to determine the benchmark for primary aluminum, DOJ said. The 17% percent rate was based on information submitted by the Chinese government and was "the only rate offered as a benchmark for imports of primary aluminum," DOJ said. The 13% rate proposed by Alcha was submitted only as the rate actually paid on domestic purchases, rather than as a benchmark reflecting the required rate.