Commerce Sustains Benchmark Picks in CVD Review on Aluminum Foil
The Commerce Department properly picked the benchmark data for two subsidy programs received by respondent Jiangsu Zhongji Lamination Materials in the 2017-18 review of the countervailing duty order on aluminum foil from China, the Court of International Trade held in a decision made public Dec. 3.
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Judge Timothy Reif sustained Commerce's use of Trade Data Monitor (TDM) data as the benchmark for Zhongji's receipt of aluminum plate, sheet and strip below cost, and the use of a 2010 Coldwell Banker Richard Ellis (CBRE) Asia Marketview Report with 2010 Thai data as the benchmark in a land rights use program.
The trade court previously remanded Commerce's benchmark picks, first sending back the use of the TDM data over Zhongji's proposed benchmark, which came from a Commodities Research Unit (CRU) report (see 2303300032). In all, Zhongji submitted 2017 and 2018 Global Trade Atlas data specific to Harmonized System subheading 76.06.12, and it used the CRU report on 1050 aluminum alloy grade rolled product prices to derive price estimates for the rollled products.
The court initially said the agency failed to explain its conclusion that there was wider variation between the aluminum alloy products classified under grade 1050 in the CRU report and the purchases of the Zhongji respondents than there was between the products in the TDM data and Zhongji's purchases.
Commerce stuck with the TDM data, arguing that it's better to get direct prices, as supplied by the TDM data, as opposed to estimates taken from prices and accumulated unit values (see 2308070036). Reif agreed, holding that the agency's explanation "complies with the court's instructions." It's reasonable to find that the average unit values taken from the TDM data "would be available to purchasers in China," the court said.
Zhongji argued that the fact that the TDM data is more inclusive doesn't make it more representative than a narrower set of data with minor mismatches. While Commerce conceded that the TDM data is imperfect in terms of the exact range of products it covers, the agency said this doesn't by itself automatically rule the data out in favor of the CRU report. Reif found this conclusion "reasonable," adding that the 1050 alloy data can't be said to encompass the input product since Zhongji didn't buy 1050 aluminum alloy rolled products during the review period.
Instead, Commerce adequately explained that Zhongi's purchases are covered by subheading 7606.12, which is the "most detailed tariff schedule classification covering these products" at the six-digit specification level, the court held.
Reif also initially sent back Commerce's explanation of two exhibits -- an expert declaration submitted by Zhongji and an International Trade Commission report. Regarding the expert declaration, the judge noted that Commerce said the report is "no more specific and no more authoritative than" Zhongji's own assertions. The agency adequately found the declaration to be contradicted by the CVD petitioners and found different ways in which the statements "failed to provide elucidation as to the import or validity of the database."
Zhongji then said the evidence in the ITC report shows that a majority of aluminum plate, sheet and strip under subheading 7606.12 are not foil stock, adding that under this subheading, one eight-digit and two 10-digit subheadings can't be used for foil stock. As a result, the respondent said, the TDM data can't be used. Reif said Commerce properly evaluated this evidence, noting the agency's finding that the ITC report has the "same flaw" as the expert declaration: it doesn't discuss the "relative proportions" of the aluminum plate applications, nor their "proportions relative to the overall uses of aluminum plate and sheet."
Reif next sustained Commerce's use of the 2010 CBRE report to set a benchmark for the benefit Zhongji derived from a land use rights program in China. The respondent argued that the 2010 data should be rejected as non-contemporaneous in favor of 2016 to 2018 CBRE reports.
The court rejected Zhongji's claim, finding that Commerce adequately established its past practice on this point and appropriately applied it here. The agency's practice notes that the contemporaneity of the data with the review period is irrelevant for the land use rights program, since the relevant time period is the one in which the rights were conferred.
Reif first rejected Zhongji's argument that Commerce failed to establish a past practice, noting that the agency's practice as elucidated here "follows two prior proceedings and adheres to Commerce’s regulations at 19 C.F.R. § 351.524(d)(3)." In contrast, Zhongji only offered one proceeding that would undermine this explanation.
The judge held that "Commerce demonstrated adequately that the 2010 CBRE Report is consistent with its purported practice because the report is relatively close in time to the years of the land purchases of the Zhongji Respondents."
(Jiangsu Zhongji Lamination Materials Co. v. United States, Slip Op. 24-128, CIT # 21-00133, dated 11/22/24; Judge: Timothy Reif; Attorneys: Kristin Mowry of Mowry & Grimson for plaintiffs led by Jiangsu Zhongji; Sosun Bae for defendant U.S. government; Grace Kim of Kelley Drye for defendant-intervenors led by Aluminum Association Trade Enforcement Working Group)