Vietnamese Aluminum Exporter Pushes Back Against Critical Circumstances Review
In a complaint brought Jan. 21 in the Court of International Trade, exporter East Asia Aluminum Company alleged that a Commerce Department investigation failed to properly account for its scrap byproduct, which East Asia Aluminum continuously reintroduces back into production, which caused a chain of circumstances resulting in a far-too-late affirmative critical circumstances determination (East Asia Aluminum Company v. United States, CIT # 24-00255).
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The exporter said it was challenging the department’s final determination in its antidumping duty investigation on aluminum extrusions from Vietnam.
Commerce’s usual practice when a self-generated byproduct is internally reused is to grant an exporter a “byproduct offset” against its normal value calculation, but East Asia Aluminum didn’t request one because its scrap “was continuously reintroduced into production rather than having distinguishable quantity and value as a byproduct,” the exporter claimed. This was verified by Commerce, it said.
“The self-generated scrap was internally reused in the same forging and melting workshop and not recorded as either an input or output by that workshop,” it said.
But the investigation’s petitioners -- U.S. Aluminum Extruders Coalition and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union -- filed an administrative case brief to the department arguing that East Asia Aluminum “improperly granted itself a byproduct offset.”
In its final determination, Commerce agreed with the petitioners and used facts available, although without an adverse inference, “to calculate the quantity of scrap East Asia Aluminum should have produced” and assign that quantity a surrogate value, the exporter said. The department then refused to grant East Asia Aluminum “a byproduct offset that would have prevented double-counting” material costs, it said.
The petitioners also pushed, ultimately successfully, for new surrogate values for inputs including Al-Cu alloy, chrome and deslagging agent.
The changes resulted in East Asia Aluminum’s rate rising from 14.15% to 16.02%, the exporter said. It explained that this reversed the result of an earlier critical circumstances review; “the new margin crossed Commerce’s regulatory 15 percent threshold to determine that importers ‘knew or should have known’ that an exporter’s prices were at less than fair value,” it said.
East Asia Aluminum argued in response to Commerce’s finding that the department committed a ministerial error when it conducted its critical circumstances review because it wasn’t allowed to “make methodological changes” so near the end of an investigation.