Jiangsu Zhongji Lamination Materials Co. v. United States , 2020 CIT 39 ( 2020 )

Slip Op. 20-
UNITED STATES COURT OF INTERNATIONAL TRADE
JIANGSU ZHONGJI LAMINATION
MATERIALS CO., LTD., SHANTOU WANSHUN
PACKAGE MATERIAL STOCK CO., LTD.,
JIANGSU HUAFENG ALUMINUM INDUSTRY
CO., LTD., and JIANGSU ZHONGJI
LAMINATION MATERIALS CO., (HK) LTD., Before: Jane A. Restani, Judge
Plaintiffs,
Court No. 18-00089
v.
UNITED STATES,
Defendant,
and
ALUMINUM ASSOCIATION TRADE
ENFORCEMENT WORKING GROUP AND ITS
INDIVIDUAL MEMBERS, JW ALUMINUM
COMPANY, NOVELIS CORPORATION, and
REYNOLDS CONSUMER PRODUCTS LLC,
Defendant-Intervenors.
OPINION
[Commerce’s Final Results of Redetermination Pursuant to Court Order are sustained. Judgment
entered.]
Dated: March 24, 2020
Jeffrey S. Grimson, Bryan P. Cenko, James C. Beaty, Jill A. Cramer, Kristin H. Mowry,
and Sarah M. Wyss, Mowry & Grimson, PLLC, of Washington, D.C., for Plaintiffs Jiangsu
Zhongji Lamination Materials Co., Ltd., Shanton Wanshun Package Material Stock Co., Ltd.,
Jiangsu Huafeng Aluminum Industry Co., Ltd., and Jiangsu Zhongji Lamination Materials Co.,
(HK) Ltd.
Aimee Lee, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, N.Y., for the defendant. Of counsel was Paul K. Keith,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department
Court No. 18-00089 Page 2
of Commerce, of Washington, D.C.
John M. Herrmann, II, Grace W. Kim, Joshua R. Morey, Kathleen W. Cannon, and Paul
C. Rosenthal, Kelley Drye & Warren, LLP, of Washington, D.C., for Defendant-Intervenors
Aluminum Association Trade Enforcement Working Group and its Individual Members, JW
Aluminum Company, Novelis Corporation, and Reynolds Consumer Products LLC.
Restani, Judge: This matter is before the court following a remand to the Department of
Commerce (“Commerce”) in Jiangsu Zhongji Lamination Materials Co., Ltd. v. United States, 405
F. Supp. 3d 1317 (CIT 2019) (“Jiangsu”), with which familiarity is presumed. In Jiangsu, the court
upheld Commerce’s determination that Plaintiff Jiangsu Zhongji Lamination Materials Co., Ltd.
(“Zhongji”) and its affiliated companies, Plaintiffs Shantou Wanshun Package Material Stock Co.,
Ltd. (“Shantou Wanshun”), Jiangsu Huafeng Aluminum Industry Co., Ltd. (“Jiangsu Huafeng”),
and Jiangsu Zhongji Lamination Materials Co., (HK) Ltd. (“Zhongji HK”) received a
countervailable electricity subsidy as supported by substantial evidence; concluded that
Commerce’s selection and calculation of the electricity benchmark was consistent with its
regulations and in accordance with law; and that substantial evidence supported Commerce’s (1)
application of an adverse inference based upon facts otherwise available (“AFA”) to find that the
Government of China’s (“GOC”) electricity program is specific, (2) decision to calculate an ocean
freight benchmark based solely on actual price quotes sourced from Maersk, (3) application of
AFA to countervail Zhongji’s self-reported “other subsidies,” and (4) determination that Zhongji
received a countervailable subsidy pursuant to certain of its reported policy loans from state owned
commercial banks (“SOCBs”). See Jiangsu, 405 F. Supp. 3d at 1334–45. The court remanded to
Commerce for further explanation of its determinations that Zhongji is not entitled to an Entered
Value Adjustment (“EVA”) and that Zhongji did not establish non-use of the Export-Import Bank
of China’s (“Ex-Im Bank”) Export Buyer’s Credit Program (“EBCP”). See id. at 1345.
Court No. 18-00089 Page 3
a. Entered Value Adjustment
In Jiangsu, the court concluded that Commerce’s denial of Zhongji’s request for an EVA
was unsupported by substantial evidence. Id. at 1331. The court held that although Commerce
preliminarily determined that Zhongji’s sales to the United States met each of Commerce’s six
criteria to qualify for an EVA, it failed to explain adequately its final determination that Zhongji
failed to satisfy one criterion; specifically, that Zhongji HK did not ship the subject merchandise
directly to the United States. Id. at 1327–28 (citing Ball Bearings and Parts Thereof from Thailand:
Final Results of Countervailing Duty Administrative Review, 57 Fed. Reg. 26,646 (Dep’t
Commerce June 15, 1992)). On remand, Commerce has granted Zhongji’s EVA request without
protest. See Final Results of Redetermination Pursuant to Court Order, ECF No. 50-1 at 8 (Jan. 1,
2020) (“Remand Results”). Commerce concedes that “since [it] made an adjustment to all of
Zhongji’s export sales in the Preliminary Determination, it is not clear why Zhongji’s failure to
identify its U.S. sales is grounds for denying the adjustment.” Id. at 6. Commerce suggests that
there may have been a miscommunication between the parties between the preliminary and final
determinations. Id. at 8. Commerce maintains that the way it made the adjustment in the
Preliminary Determination was incorrect, but it reconsidered the EVA methodology between the
preliminary and final determinations. Id. at 7–8. Apparently, Commerce accepts responsibility
for not adequately communicating the change to Zhongji. Id. at 8. Commerce has sufficiently
complied with the court’s remand order and no party challenges Commerce’s decision to grant
Zhongji’s request for an EVA.
b. Export Buyer’s Credit Program
In Jiangsu, the court concluded that Commerce’s explanations for applying AFA to find
that Zhongji benefitted from the EBCP failed to satisfy Commerce’s statutory investigative
Court No. 18-00089 Page 4
requirements. Jiangsu, 405 F. Supp. 3d at 1334. The court found Commerce’s application of AFA
to find that Zhongji, a mandatory cooperating party that submitted uncontroverted affiliate and
customer certifications of non-use, benefitted from the EBCP based on the GOC’s failure to
cooperate to be unsupported by substantial evidence and contrary to law, because Commerce did
not explain why a complete understanding of the EBCP’s operation is necessary to verify non-use
of the program. Id. at 1333.
On remand, Commerce has accepted Zhongji’s and its customers’ claims of non-use of the
EBCP as sufficient evidence that Zhongji does not benefit from the EBCP. Id. at 13–14.
Commerce makes this concession “under respectful protest.” Id. at 14 & n.45 (citing Viraj Grp.,
Ltd. v. United States, 343 F.3d 1371 (Fed. Cir. 2003)). Unlike Viraj, however, this matter does
not involve a “contrary position forced upon it by the court,” see 343 F.3d at 1376, although it may
require procedures that would lead to such a position. Nor does this case involve a remand order
“with instructions that dictate a certain outcome that is contrary to how Commerce would
otherwise find.” Meridian Prods., LLC v. United States, 890 F.3d 1272, 1276 n.3 (Fed. Cir. 2018).
As this court has repeatedly explained, where Commerce applies AFA to determine that a
cooperating party benefits from the use of the EBCP solely on the basis of the GOC’s failure to
provide the requested information pursuant to 19 U.S.C. §§ 1677e(a)(2)(B) or 1677e(b), as it did
here, Commerce must (1) identify the gap in the record, (2) establish how the withheld information
creates the gap (e.g., by explaining why the withheld information is necessary to verify the
cooperating party’s claims of non-use), and (3) demonstrate that only the withheld information can
fill the gap by explaining why the record evidence, or other information accessible by respondents,
is insufficient or impossible to verify. See Jiangsu, 405 F. Supp. 3d at 1333 (collecting cases).
The court, therefore, ordered Commerce to “consider what information could be verified that
Court No. 18-00089 Page 5
would show non-use.” Id. at 1334. The court also ordered all parties “to contemplate a solution
to the impasse and to confer.” Id.
Commerce insists that it still does not know what information “it should look for in
attempting to determine whether a loan is traceable to the China Ex-Im Bank” for purposes of
ascertaining Zhongji’s claimed non-use of the EBCP. Remand Results, at 13. Commerce
acknowledges that, during remand, Zhongji “proposed three questions that Commerce could ask
the GOC to find a path forward to verification,” and that Zhongji additionally suggested five
questions “that Commerce should issue to Zhongji’s customers relating to the customer’s loans
and lenders,” the answers to which Commerce could verify. 1, 2 Id. at 9–10. Notwithstanding
Zhongji’s apparent good-faith efforts to comply with the court’s remand order, Commerce
maintains that none of Zhongji’s proposed questions remedies “Commerce’s concerns regarding
its inability to verify statements of non-use by Zhongji and its customers.” Id. at 10. In
Commerce’s view, “verification under the circumstances” of this case would be unproductive, and
it is wholly at a loss absent the GOC’s cooperation. Id. at 13. The court’s order, however, was
not for Commerce to verify Zhongji’s non-use of the EBCP, but rather for Commerce to “explain
why a complete understanding of the operation of the program is necessary to verify non-use of
the program” and for all parties to attempt to identify an alternative verification procedure.
1
Presumably, if the customers did not cooperate, Commerce would have the lack of data allowing
it to proceed to fill in the blanks with data of its choosing. See 19 U.S.C. §§ 1677e(a)–(b).
Commerce did not comment on the efficacy of the specific questions that Zhongji proposed that
Commerce ask its customers.
2
The court accepts that Commerce is not required to send new questions to the GOC, as Commerce
has reasonably determined that it has not shown full cooperation, having unilaterally decided that
some of Commerce’s questions were irrelevant. See Decision Mem. for the Final Determination
in the Countervailing Duty Investigation of Certain Aluminum Foil from the People’s Republic of
China, C-570-054, POR 1/1/2016-12/31/2016 at 29–31 (Dep’t Commerce Feb. 26, 2018) (“I&D
Memo”).
Court No. 18-00089 Page 6
Jiangsu, 405 F. Supp. 3d at 1333. Part of Commerce’s task on remand was to collaborate and
confer with Zhongji to ascertain relevant queries, id. at 1334, in aid of identifying what
information, if any, is either “not available on the record,” being withheld, or not verifiable. 19
U.S.C. § 1677e(a). Apparently, it has not attempted to do so.
At best, Commerce’s current position is that because Zhongji’s customer declarations “do
not cover all of its U.S. sales,” the record is incomplete, 3 so that “Zhongji’s claimed non-use of
the EBCP” is necessarily unverifiable. Remand Results, at 13. But customer declarations are not
the present issue. Zhongji’s questions go well beyond such declarations. Apparently, Commerce’s
true position is that it wishes to rely solely on GOC’s failures. It recognized that the court does
not accept that position and, thus, has in various cases lately interposed non-verifiability or
incompleteness as reasons to maintain the EBCP as contributing to the CVD rates, without much
to back up such stances. Nevertheless, Commerce has now lowered Zhongji’s positive CVD cash
deposit rate by 10.54 percentage points by eliminating the EBCP subsidy portion of the CVD rate.
See Remand Results, at 14.
Commerce has chosen not to continue this matter by giving respondent a fair opportunity
to prove its case under Commerce’s new view of the program, but rather has simply granted the
relief sought as if compelled to do so by the court. As indicated, the court did not direct this result;
Commerce chose it. The respondent party has filed no comments and apparently has concluded
that this is the most expedient way to finally obtain relief. The domestic parties have also remained
3
The declarations cover close to all of Zhongji’s U.S. sales. See Mem. of P. & A. in Supp. of Rule
56.2 Mot. for J. on the Agency R. by Pls. Jiangsu Zhongji Lamination Materials Co., Ltd. et al.,
ECF No. 27 at 18 (Dec. 19, 2018) (citing Section III of Zhongji’s Questionnaire Responses, vol. I
§ III, Ex. 12, C.R. 58, 64 (June 12, 2017)). The high percentage of response could constitute
substantial evidence.
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silent. At this point, the court sees no purpose in forcing further action upon parties that do not
desire it.
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are SUSTAINED. Judgment will
issue accordingly.
/s/Jane A. Restani
Jane A. Restani, Judge
Dated: March 24, 2020
New York, New York