AFA Unwarranted in Chinese Aluminum Sheet Case, Exporter Says

Commerce's use of adverse facts available for the Export Buyer's Credit Program (EBCP) in the review of a countervailing duty order on common alloy aluminum sheet from China was unlawful because there wasn't actually a gap in the record as to whether exporter Jiangsu Alcha Aluminum and its customers used the program, the exporter said in an Oct. 2 brief at the Court of International Trade. Even if there was, Commerce failed to provide exporter Alcha with a chance to fix it, the exporter said (Jiangsu Alcha Aluminum Co. v. U.S., CIT # 22-00290).

In its investigation, Commerce found that applying AFA was appropriate because the Chinese government had failed to respond to information requests about the program, thus creating a gap in the record (see 2307110067).

In doing so, Commerce inappropriately equated the EBCP operation with its use, Alcha said. Information missing because of the Chinese government's refusal to respond "relates only to the operation of the EBCP" and did not affect Commerce's ability to determine use or non-use of the program, Alcha said. Commerce did not need to turn to an adverse inference to fill any claimed “gaps” in the record and its assertion that the Chinese government “is the only entity with the ability to explain the internal administration” is irrelevant, Alcha argued.

If such a gap existed, Commerce also failed to provide Alcha with an opportunity to correct that record, the exporter said. "If Commerce was not satisfied with what Alcha provided, then it could have easily requested additional information," which Alcha was prepared to submit, the exporter said. The government argued that Alcha’s non-use claims were unverifiable, but Alcha said it submitted non-use certifications from its only U.S. customer.

Based on the final determination language, Commerce’s practice is only to attempt verification if customer certifications are provided, Alcha said. That practice is illegal as it requires the department to ignore other evidence when it lacks certifications from all U.S. customers.

Alcha said that it "participated throughout the proceeding" and was ready to give additional information had the department asked for it. Alcha said it "fully cooperated" and was ready to verify its claims of non-use but was not given the opportunity to do so.

Finally, Alcha contested Commerce's use of the 17% value-added tax because the department "ignored" the 13% VAT rate reported by Alcha, which the exporter said was, "in effect, applying facts otherwise available with an adverse inference."