Jiangsu Alcha Aluminum Co. v. United States

712 F. Supp. 3d 1376, 2024 CIT 77

• Court: United States Court of International Trade
• Decided: July 11, 2024
• Docket: 22-00290
• Status: Published

Opinion

Slip Op. No. 24-77

UNITED STATES COURT OF INTERNATIONAL TRADE

JIANGSU ALCHA ALUMINUM CO., LTD. and ALCHA INTERNATIONAL HOLDINGS LTD.,

Plaintiffs,

v.

UNITED STATES, Before: Stephen Alexander Vaden, Judge Defendant, Court No. 1:22-cv-00290 (SAV) and

ALUMINUM ASSOCIATION COMMON ALLOY ALUMINUM SHEET TRADE ENFORCEMENT WORKING GROUP AND ITS INDIVIDUAL MEMBERS,

Defendant-Intervenors.

OPINION

[Sustaining Commerce’s Final Determination and Denying Plaintiffs’ Motion for Judgment on the Agency Record.]

Dated: July 11, 2024

Weronika Bukowski, Crowell & Moring, LLP, of New York, NY, for Plaintiffs Jiangsu Alcha Aluminum Co., Ltd. and Alcha International Holdings Ltd. With her on the brief was Daniel J. Cannistra, of Washington, DC. Court No. 1:22-cv-00290 (SAV) Page 2

Emma E. Bond, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Commercial Litigation Branch, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, and David W. Richardson, Of Counsel, Department of Commerce, Office of Chief Counsel for Trade Enforcement & Compliance.

Maliha Khan, Kelley Drye & Warren, LLP, of Washington, DC, for Defendant- Intervenors Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and its individual members. With her on the brief was John M. Herrmann, Paul C. Rosenthal, and Joshua R. Morey.

Vaden, Judge: This case is about how one party’s failure to participate in an

administrative review can adversely affect another cooperating party. The

Department of Commerce (Commerce) investigated aluminum sheet from China and

issued a countervailing duty order. In the second administrative review of that order,

Commerce chose Jiangsu Alcha Aluminum Co., Ltd. and its affiliated trading

company (collectively, Alcha) as mandatory respondents. Commerce sent

questionnaires to Alcha and the Chinese government requesting information about

China’s Export Buyer’s Credit Program and China’s provision of primary aluminum

for less than adequate remuneration. Alcha answered, but China did not. In its Final

Results, Commerce calculated a countervailing duty rate for Alcha including

percentages based on Alcha’s use of the Export Buyer’s Credit Program and purchase

of primary aluminum for less than adequate remuneration. Alcha claims that

Commerce’s findings were not supported by substantial evidence and asks this Court

to remand the case back to the agency. This Court finds that Commerce committed

no error in concluding that Alcha benefitted from the Export Buyer’s Credit Program

because neither China nor Alcha put verifiable evidence on the record to support Court No. 1:22-cv-00290 (SAV) Page 3

Alcha’s claimed non-use. The Court also finds that Commerce properly relied on data

China had provided in the underlying investigation to calculate the benefit conferred

on Alcha from its purchases of primary aluminum. Although Alcha submitted data

about its primary aluminum purchases, Commerce could not rely on it because the

data failed to meet regulatory requirements. Therefore, Commerce’s final

determination is SUSTAINED; and Alcha’s Motion for Judgment on the Agency

Record is DENIED.

BACKGROUND

In 2018, Commerce conducted a countervailing duty investigation on

aluminum sheet from China. Countervailing Duty Investigation of Common Alloy

Aluminum Sheet from the People’s Republic of China: Final Affirmative

Determination, 83 Fed. Reg. 57,427 (Dep’t of Com. Nov. 15, 2018). It found that both

the Export Buyer’s Credit Program and the Chinese government’s provision of

primary aluminum for less than adequate remuneration were countervailable

subsidies. See generally id. at 57,429. In February 2019, Commerce published a

corresponding countervailing duty order (Order). Common Alloy Aluminum Sheet

from the People’s Republic of China: Countervailing Duty Order, 84 Fed. Reg. 2,157

(Dep’t of Com. Feb. 6, 2019). Two years later, Commerce initiated the Second

Administrative Review of that Order. Initiation of Antidumping and Countervailing

Duty Administrative Reviews (Notice of Initiation), 86 Fed. Reg. 17,124 (Dep’t of Com.

Apr. 1, 2021). The period of review was January 1, 2020 through December 31, 2020.

Id. at 17,135. Court No. 1:22-cv-00290 (SAV) Page 4

Commerce’s Questionnaires

Commerce selected Jiangsu Alcha Aluminum Co., Ltd. and its affiliated

trading company1 as mandatory respondents for individual examination in the

Second Administrative Review.2 Id. Commerce sent initial questionnaires to both

China and Alcha, requesting information about government subsidies from which

Alcha may have benefitted. China Questionnaire, J.A. at 1,083, ECF No. 36; Alcha

Initial Questionnaire, J.A. at 1,132, ECF No. 36. China did not respond. Issues and

Decisions Memorandum (Dep’t of Com. Aug. 31, 2022) (IDM) at 21, J.A. at 14,206,

ECF No. 36. Alcha answered and addressed the two subsidy programs at issue in

this case: (1) China’s Export Buyer’s Credit Program and (2) China’s provision of

primary aluminum for less than adequate remuneration. Initial Questionnaire Resp.

at 18–20, 27–29, J.A. at 80,056–58, 80,065–67, ECF No. 37.

First, Alcha denied that it or its sole U.S. customer used the Export Buyer’s

Credit Program. Id. at 28–29, J.A. at 80,066–67. The Export Buyer’s Credit Program

is a loan program intended to support the export of certain Chinese goods and

services. Initial Questionnaire Resp., Ex. 50 (2000 Regulations), J.A. at 81,983, ECF

1 Alcha International Holdings Limited (Alcha International) is an affiliated trading company

of Jiangsu Alcha Aluminum Co., Ltd. (Jiangsu Alcha). Issues and Decisions Memorandum (Dep’t of Com. Aug. 31, 2022) (IDM) at 2, J.A. at 14,187, ECF No. 36. Jiangsu Alcha also cross-owns Baotou Alcha Aluminum Co. Ltd. and Jiangsu Alcha New Energy Materials Co., Ltd. Id. at 2 n.4. For convenience, the Court will refer to both Plaintiffs — Alcha International and Jiangsu Alcha — as simply “Alcha.” 2 Commerce also selected Yinbang Clad Material Co., Ltd. (Yinbang) as a mandatory

respondent. Notice of Initiation, 86 Fed. Reg. at 17,135. Yinbang filed suit in this Court, and the Court consolidated its action with Alcha’s. ECF No. 26. Yinbang later voluntarily dismissed its suit. Yinbang Clad Metal Material Co. v. United States, No. 22-291, ECF No. 28. Court No. 1:22-cv-00290 (SAV) Page 5

No. 37. It allows a non-Chinese borrower who participates in the program to obtain

a loan at a preferential interest rate from a Chinese bank. Id., J.A. at 81,984–86.

The borrower must then use the loan to buy goods or services from Chinese exporters.

Id., J.A. at 81,983–84.

In its initial questionnaire response, Alcha attached a copy of the Export

Buyer’s Credit Program’s regulations issued in 2000. Id., J.A. at 81,982. The 2000

Regulations state that the Export and Import Bank of China is the exclusive issuer

of credit to Export Buyer’s Credit Program users. Id., J.A. at 81,986 (“China

Eximbank shall disburse the loan to the borrower as prescribed in the loan

agreement.”). The Regulations also set a $2 million minimum threshold for

underlying contracts and require the exporter under the commercial contract to buy

export credit insurance. Id., J.A. at 81,984.

Alcha proffered evidence to show that it did not benefit from the Export Buyer’s

Credit Program. It offered its own declaration stating it “did not receive the benefit

under the Export Buyer’s Credit[] [P]rogram during the [period of review]” and “did

not provide any kind of assistance to [its] U.S. customers in obtaining export buyer

credits.” Initial Questionnaire Resp. at 28–29, J.A. at 80,066–67, ECF No. 37. Alcha

also offered its sole customer’s uncertified declaration. Alcha stated it asked its “U.S.

customer[] whether they had used the Export Buyer[’]s Credit [Program] during the

[period of review],” and “[t]he customer[] confirmed that they did not.” Id. at 29, J.A.

at 80,067. Alcha also asserted it did not purchase export credit insurance as required

by the 2000 Regulations. Id. Court No. 1:22-cv-00290 (SAV) Page 6

Second, Alcha claimed that the value added tax rate for its purchases of

primary aluminum was thirteen percent.3 See id. at 18–19, J.A. at 80,056–57; Initial

Questionnaire Resp., Exs. 39–40, J.A. at 81,881–04, ECF No. 37. A value added tax

is “a consumption tax placed on a product whenever value is added at each stage of

the supply chain, from production to the point of sale.” Jiangsu Zhongji Lamination

Materials Co., (HK) v. United States, 44 CIT __, 435 F. Supp. 3d 1273, 1274 n.1 (2020).

Commerce accounts for this tax when calculating the benefit conferred on a

respondent that purchases goods from a foreign government for less than adequate

remuneration. See 19 C.F.R. § 351.511(a)(2)(iv) (directing Commerce to “adjust the

comparison price to reflect the price that a firm actually paid or would pay if it

imported the product”).

Alcha stated that it and one of its affiliates purchased primary aluminum from

China during the period of review. Initial Questionnaire Resp. at 18, J.A. at 80,056,

ECF No. 37. It attached two spreadsheets to its initial response and explained that

the spreadsheets depict all the primary aluminum purchases Alcha and its affiliate

made during the period. Id. at 18–19, J.A. at 80,056–57 (citing Exs. 39–40, J.A. at

81,881–904, ECF No. 37). Alcha recorded a value added tax rate of thirteen percent

3 The parties bracketed the spreadsheets providing the thirteen percent value added tax rate

in the confidential joint appendix. See Initial Questionnaire Resp., Exs. 39–40, J.A. at 81,881–904, ECF No. 37. However, the parties waived any confidentiality claim by referring to the thirteen percent rate in their public briefs and in open court. Compare CVB, Inc. v. United States, 48 CIT __, 681 F. Supp. 3d 1314, 1317–19 (2024) (refusing to redact information for similar reasons), with Fed. Cir. R. 25.1(c) (“Material will lose its status … if and when it … has appeared in a filing without being marked confidential.”), Pls.’ Br. at 27, ECF No. 29, Def’s Resp. at 40, ECF No. 31, Def.-Int.’s Br. at 14, ECF No. 32, and Oral Arg. Tr. at 40:25–41:1, ECF No. 42 (all referring to the thirteen percent figure in public court filings or a public court proceeding). Court No. 1:22-cv-00290 (SAV) Page 7

for each purchase. See, e.g., Initial Questionnaire Resp., Exs. 39–40, J.A. at 81,881–

904, ECF No. 37. It further stated that it was “not aware of any trade publications

which specify the prices of the input within China and on the world market.” Initial

Questionnaire Resp. at 19, J.A. at 80,057, ECF No. 37.

Commerce sent several supplemental questionnaires to Alcha, which it

answered. See, e.g., Second Suppl. Questionnaire Resp., J.A. at 82,154, ECF No. 37;

Sixth Suppl. Questionnaire Resp., J.A. at 83,450, ECF No. 37. Those questionnaires

did not ask about the Export Buyer’s Credit Program or the value added tax rate for

primary aluminum, and Alcha provided no further information about either before

Commerce published its Final Results.

The Final Results

On March 4, 2022, Commerce published its Preliminary Results. Common

Alloy Aluminum Sheet from the People’s Republic of China: Preliminary Results of

Countervailing Duty Administrative Review, 87 Fed. Reg. 12,429 (Dep’t of Com. Mar.

4, 2020). Commerce then published its Final Results on September 6, 2022, Common

Alloy Aluminum Sheet from the People’s Republic of China: Final Results of

Countervailing Duty Administrative Review, 87 Fed. Reg. 54,462 (Sept. 6, 2022),

along with its accompanying Issues and Decisions Memorandum, J.A. at 14,186–233,

ECF No. 36. It assessed a total subsidy rate of 17.8 percent to Alcha. Final Results,

87 Fed. Reg. at 54,463.

The total subsidy rate included a 2.57 percent rate based on Commerce’s

conclusion that Alcha benefitted from the Export Buyer’s Credit Program. See IDM Court No. 1:22-cv-00290 (SAV) Page 8

at 11, J.A. at 14,196, ECF No. 36. Commerce explained that necessary information

was missing from the record because of China’s nonparticipation, and Commerce was

therefore unable to verify whether Alcha used the program. Id. at 21, J.A. at 14,206.

The agency found it appropriate to apply facts available with an adverse inference

against China for failing to cooperate to the best of its ability. Id. at 29, J.A. at 14,214.

Commerce concluded that the 2000 Regulations Alcha provided were outdated

because China previously indicated that the Export Buyer’s Credit Program’s

operations changed in 2013. Id. at 19, J.A. at 14,204. In an unrelated investigation,

China revealed that Export and Import Bank’s 2013 internal guidelines were a key

document governing the Export Buyer’s Credit Program. Id. at 19–20, J.A. at 14,204–

05. China refused to provide a copy of the new guidelines in that investigation

claiming they were “internal to the bank,” but its questionnaire responses indicated

that the 2013 guidelines made important changes to how the program operates. Id.

Commerce believes that the 2013 guidelines may have eliminated the $2 million

contract minimum and allowed for disbursement of funds through third-party banks.

Id.

Here, China once again failed to provide the 2013 guidelines; and Alcha only

submitted the 2000 Regulations. Commerce explained that, without the 2013

guidelines and China’s answers to its questions regarding third-party bank

involvement, it could not verify the customer’s non-use declaration. Id. at 24–27, J.A.

at 14,209–12. If it attempted verification, Commerce reasoned, it would have no way

of knowing for what banks to look in the customer’s records because the Export Court No. 1:22-cv-00290 (SAV) Page 9

Buyer’s Credit Program loans might not come from the Export and Import Bank. Id.

at 24, J.A. at 14,209. Even if it did know for what banks to look, verification would

be “meaningless” because Commerce did not know what underlying documentation

to request absent more guidance from China regarding the loan’s expected paper

trail. Id. at 27, J.A. at 14,212. Commerce also observed that the customer declaration

Alcha submitted was uncertified, making it “especially true” that Commerce could

not complete a meaningful verification. Id. at 28–29, J.A. at 14,213–14 (“The

narrative response [Alcha] provided … falls short of the type of certifications …

provided by U.S. customers in other proceedings involving this program.”). Based on

these findings, Commerce concluded that (1) China failed to act to the best of its

ability and created a gap in the record through its nonparticipation, (2) the gap could

not be filled by the customer’s uncertified declaration, and (3) it was appropriate to

rely on facts available with an adverse inference. Id. at 29, J.A. at 14,214.

Commerce also assessed a 7.81 percent rate for China’s provision of primary

aluminum for less than adequate remuneration. Id. at 10, J.A. at 14,195. It used a

value added tax rate of seventeen percent to make its calculation. Id. at 33–34, J.A.

at 14,218–19. Commerce explained that China provided the seventeen percent tax

rate in the underlying investigation and Alcha “ha[d] not provided any evidence to

demonstrate that [China] has changed the … rate ….” Id. at 33, J.A. at 14,218.

Commerce acknowledged that Alcha reported paying a lower rate. Id. However, the

only support Alcha offered to back that claim was its internal spreadsheets, which Court No. 1:22-cv-00290 (SAV) Page 10

Commerce deemed insufficient to refute the rate the Chinese government had

previously provided. Id. at 33–34, J.A. at 14,218–19.

Commerce also relied on 19 C.F.R. § 351.511(a)(2)(iv), which says that

Commerce “will adjust the comparison price to reflect the price that a firm actually

paid or would pay if it imported the product.” Id. at 34, J.A. at 14,219. Under the

regulation, the comparison price must be based on what a respondent would have

paid for imported primary aluminum; and Alcha’s suggested thirteen percent rate did

not comply with the regulation because it was not based on imports. Id. Finally,

Commerce denied that its use of the seventeen percent rate was an application of

facts available with an adverse inference, reasoning that the rate was information on

the record and Alcha’s alternative rate was unsupported. Id. at 33, J.A. at 14,218.

The Present Dispute

Alcha filed its Complaint against the United States on November 7, 2022.

Compl., ECF No. 9. It raises two issues. First, it claims Commerce’s finding that

Alcha benefitted from the Export Buyer’s Credit Program is not supported by

substantial evidence. Id. ¶¶ 13–14. Second, it alleges Commerce improperly applied

facts available with an adverse inference to find Alcha purchased primary aluminum

at a value added tax rate of seventeen percent. Id. ¶¶ 16–17. The Aluminum

Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and

its individual members (the Association) intervened as Defendant-Intervenors to

support Commerce’s determination. Order Granting Intervention, ECF No. 17. Court No. 1:22-cv-00290 (SAV) Page 11

A.

Alcha filed a Motion for Judgment on the Agency Record pursuant to USCIT

Rule 56.2, reiterating its two claims. Pls.’ Mem. in Supp. of Mot. for J. on Agency R.

(Pls.’ Br.), ECF No. 29. Alcha makes three arguments to support its non-use claim

regarding the Export Buyer’s Credit Program. First, it argues that the Tariff Act of

1930 requires Commerce to affirmatively determine whether a financial contribution

was provided to Alcha before it can find Alcha benefitted from the program. Id. at

13–16 (citing 19 U.S.C. § 1677(5)(B)). Because the record does not contain positive

evidence proving participation, Alcha argues Commerce’s finding of a benefit is not

supported by substantial evidence. Id. at 14. Alcha asserts that Commerce owed it

a “meaningful opportunity” to verify its non-use claims, which Commerce could have

provided by issuing supplemental questionnaires about the Export Buyer’s Credit

Program or attempting to verify the information Alcha did submit. Id. at 15–16

(citing Yama Ribbons and Bows Co. v. United States (Yama I), 43 CIT __, 419 F. Supp.

3d 1341, 1356 (2019)); Pls.’ Reply at 4, ECF No. 33. Moreover, Alcha argues that

Commerce’s treatment of the Export Buyer’s Credit Program is unfair because

Commerce permits respondents denying participation in other contexts to simply

“state that they did not use the program.” Pls.’ Br. at 14–15, ECF No. 29.

Second, Alcha argues that this Court has repeatedly rejected the reasoning

Commerce supplied in its Issues and Decisions Memorandum, and nothing in this

case justifies a different outcome. Id. at 16–25. Alcha characterizes Commerce’s

analysis as a conflation of the operation and use of the Export Buyer’s Credit Program Court No. 1:22-cv-00290 (SAV) Page 12

that ignores the relevant question of whether record evidence shows that Alcha

benefitted from the program. Id. at 18–19; Pls.’ Reply at 2–3, ECF No. 33. Plaintiff

outlines this Court’s prior cases dealing with the program, opining that the Court has

sometimes found reasoning similar to that offered here was unsupported by

substantial evidence because it focused on the innerworkings of the program instead

of the actual evidence submitted. Pls.’ Br. at 19–24, ECF No. 29. Alcha does

acknowledge that this case is “somewhat different” than others because China “did

not respond … at all” to Commerce’s request for information. Id. at 17. Nonetheless,

it claims Commerce erred by applying facts available with an adverse inference

instead of using the evidence of non-use Alcha submitted. Id. at 19 (citing Fine

Furniture (Shanghai) Ltd. v. United States, 748 F.3d 1365, 1372 (Fed. Cir. 2014))

(affirming Commerce’s findings where it “did not apply adverse inferences to

substitute for any information that was actually submitted by the cooperating

respondents”).

Third, Alcha argues that Commerce’s practice of requiring a respondent to

provide non-use certifications from all its customers before Commerce will send

supplemental questionnaires or attempt verification is unsupported by substantial

evidence. Id. at. 25–27; Pls.’ Reply at 4–6, ECF No. 33. Alcha claims a respondent

could “eliminate[] any gap in the record” by providing other relevant information even

if it does not submit a certification from every one of its customers. Pls.’ Br. at 27,

ECF No. 29 (quoting Risen Energy Co. v. United States, 47 CIT __, No. 20-3912, 2023

Ct. Int’l Trade LEXIS 52, at *11 (Apr. 11, 2023)). Therefore, Alcha reasons, Court No. 1:22-cv-00290 (SAV) Page 13

Commerce’s practice improperly requires certifications by ignoring other information

a respondent could provide. Id.

Alcha also argues that Commerce’s selection of a seventeen percent value

added tax rate to calculate the benchmark for its purchases of primary aluminum

was an improper use of selecting facts available with an adverse inference. Id. at 27–

30. Alcha cites case law that directs Commerce to use information “available on the

record” that “d[oes] not adversely affect a cooperative party” when possible. Id. at 29

(quoting Fine Furniture (Shanghai) Ltd. v. United States, 36 CIT 1206, 1212 (2012)

aff’d, 748 F.3d 1365, 1372 (Fed. Cir. 2014)). It claims that Commerce erred by

ignoring the thirteen percent rate Alcha put on the record and selecting a higher,

non-neutral rate from the underlying investigation instead. Id. at 28–29; Pls.’ Reply

at 6–7, ECF No. 33. Even if Commerce’s rate selection was neutral, Alcha argues

that Commerce should have given it the opportunity to supplement the record so that

Commerce could make the most accurate finding. Pls.’ Br. at 29–30, ECF No. 29

(explaining that the applicable value added tax rate would have been “easily

verifiable” because China’s schedule for these rates is public).

B.

The Government responds that substantial evidence supports Commerce’s

determination. First, regarding the Export Buyer’s Credit Program, the Government

acknowledges that Commerce is “expected to consider” evidence a cooperating party

has submitted that would fill the gap created by a non-cooperating party. Def.’s Resp.

to Mot. for J. on Agency R. (Def.’s Resp.) at 21, ECF No. 31 (quoting GPX Int’l Tire Court No. 1:22-cv-00290 (SAV) Page 14

Corp. v. United States, 37 CIT 19, 58–59 (2013)). Nonetheless, it says Commerce is

not obligated to verify information “so incomplete as to be unreliable.” Id. (quoting

Hyundai Elec. & Energy Sys. Co. v. United States, 15 F.4th 1078, 1089 (Fed. Cir.

2021)). The Government claims Alcha submitted exactly the kind of information the

Federal Circuit described as unverifiable because “[a]bsent the information withheld

by …China, Commerce ‘would be unable to confirm usage or claimed non-use by

examining books and records which can be reconciled to audited financial statements

or other documents ….’” Id. at 22 (quoting IDM at 25, J.A. at 14,210, ECF No. 36).

The Government cites for support Commerce’s finding that it does not know for what

banks to look in the customer’s records or what documentation to request without

more guidance from China. Id. at 21–22 (citing to IDM at 25, J.A. at 14,210, ECF No.

36). Because only China could provide the necessary information and China chose

not to participate, the Government argues that Commerce had no obligation to

attempt verification of Alcha’s incomplete information. Id. at 19–22, ECF No. 31.

The Government also rejects Alcha’s argument that Commerce improperly

conflated operation of the Export Buyer’s Credit Program with use of the program.

Instead, the Government says Commerce “explained why an understanding of the

program[’s] operation is necessary to verify Alcha’s blanket and unsupported claims

of non-use.” Id. at 29. The agency described how not knowing the relevant bank

names, the expected paper trail, and a general roadmap for the loan disbursements

would impede its verification process. Id. at 27–30. Therefore, Commerce’s purpose Court No. 1:22-cv-00290 (SAV) Page 15

for seeking that information was “to confirm non-use,” not merely to understand the

program’s operations. Id. at 29.

Turning to this Court’s caselaw, the Government argues that Commerce

complied with past CIT opinions concerning the Export Buyer’s Credit Program. The

Government cites this Court’s opinion in Cooper (Kunshan) Tire Co. v. United States

(Cooper Tire II) establishing a three-part test as a framework. Id. at 23–38 (citing 46

CIT __, 610 F. Supp. 3d 1287 (2022)). It claims that Commerce properly (1) identified

the gap in the record by explaining what information is missing, (2) explained why

the missing information was necessary to verify claims of non-use, and (3) showed

that only the missing information could fill the gap. Id. at 23–25 (citing Cooper Tire

II, 46 CIT __, 610 F. Supp. 3d at 1304). The Government says Commerce identified

the information China failed to provide — details about the program’s operation, a

sample application and description of the expected paper trail, and the program’s

governing laws and regulations. Id. at 25 (citing IDM at 19–26, J.A. at 14,204–11,

ECF No. 36); see also Def.-Int.’s Resp. to Mot. for J. on Agency R. (Def.-Int.’s Br.) at

9–13, ECF No. 32. Commerce then explained that it needed to know from which

banks the funds would be coming and what documentation to request to verify non-

use. Def.’s Resp. at 27–30, ECF No. 31 (citing IDM at 20, 22–27, J.A. at 14,205,

14,207–12, ECF No. 36). It finally showed why only the Chinese government could

explain the internal operations of the Export Buyer’s Credit Program and provide the

requested information. Id. at 33–34 (citing IDM at 25, J.A. at 14,210, ECF No. 36) Court No. 1:22-cv-00290 (SAV) Page 16

(emphasizing that Alcha’s customer — who is not a party to this case — receives the

loan, not Alcha).

Next, the Government argues that Commerce’s decision to use the seventeen

percent value added tax rate for Alcha’s primary aluminum purchases is supported

by substantial evidence. The Government asserts that Commerce did not apply an

adverse inference by selecting the seventeen percent rate. Id. at 40–41. Instead,

Commerce chose the seventeen percent rate — the last official government rate

placed on the record — from neutral facts otherwise available. Id. at 41. The

applicable regulation requires Commerce to construct a benchmark price that reflects

“the price that a firm actually paid or would pay if it imported the product.” Id.

(quoting 19 C.F.R. § 351.511(a)(2)(iv)). Commerce could not use Alcha’s alternative

rate, the Government explains, because that rate was based exclusively on Alcha’s

domestic purchases of primary aluminum. Id. at 41–42.

The Court held oral argument on March 22, 2024. ECF No. 40. There, Alcha’s

counsel conceded that the thirteen percent value added tax rate Alcha put on the

record covered domestic purchases of primary aluminum, not imports. Oral Arg. Tr.

at 40:7–14, ECF No. 42 (The Court: “[W]hat did your client actually provide

[Commerce] with regard to its invoices, books, and records? Were there any imports

in there or not?” Alcha’s Counsel: “… I don’t believe so.” The Court: “You don’t

believe there were any imports in there?” Alcha’s Counsel: “Yes.”). Alcha also

admitted that its customer’s uncertified denial and the twenty-four-year-old

regulations are the only record evidence supporting its claim not to have used the Court No. 1:22-cv-00290 (SAV) Page 17

Export Buyer’s Credit Program. Id. at 9:13–10:6 (in response to the Court’s

questioning, confirming this to be the case). Plaintiffs’ Motion is now ripe for decision.

JURISDICTION AND STANDARD OF REVIEW

This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c), which grants the

Court exclusive jurisdiction over final countervailing duty determinations. The Court

must set aside any of Commerce’s “determination[s], finding[s], or conclusion[s]”

found to be “unsupported by substantial evidence on the record, or otherwise not in

accordance with law ….” 19 U.S.C. § 1516a(b)(1)(B)(i). “[T]he question is not whether

the Court would have reached the same decision on the same record[;] rather, it is

whether the administrative record as a whole permits Commerce’s conclusion.” See

New Am. Keg v. United States, No. 20-00008, 45 CIT __, 2021 Ct. Intl. Trade LEXIS

34 at *15 (Mar. 23, 2021). Furthermore, “the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence.” Matsushita Elec. Indus. Co. v. United

States, 750 F.2d 927, 933 (Fed. Cir. 1984) (quoting Consolo v. Fed. Mar. Comm’n, 383

U.S. 607, 619–20 (1966)).

When reviewing agency determinations, findings, or conclusions for

substantial evidence, the Court assesses whether the agency action is reasonable

given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345,

1350–51 (Fed. Cir. 2006); see also Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951) (“The substantiality of evidence must take into account whatever in the

record fairly detracts from its weight.”). The Federal Circuit has described Court No. 1:22-cv-00290 (SAV) Page 18

“substantial evidence” as “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” DuPont Teijin Films USA, LP v. United States,

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).

DISCUSSION

The parties ask this Court to answer two questions. First, the Court considers

whether Commerce acted unlawfully when it found that Alcha benefitted from the

Export Buyer’s Credit Program despite Alcha’s claim to the contrary. Second, the

Court considers whether Commerce properly relied on data China provided in the

underlying investigation to calculate the benefit conferred on Alcha from its

purchases of primary aluminum. For the reasons explained below, the Court finds

that Commerce supported its determinations on both issues with substantial

evidence.

I. The Export Buyer’s Credit Program

The parties dispute whether Commerce supported its finding that Alcha

benefitted from the Export Buyer’s Credit Program with substantial evidence. Alcha

claims Commerce owed it a meaningful opportunity to verify its non-use claims. Pls.’

Br. at 14–16, ECF No. 29. In drawing an adverse inference against China, it asserts

that Commerce improperly harmed Alcha, a cooperating party, and ignored

information Alcha submitted. Id. at 19. It also argues that this Court’s caselaw

supports its position because the Court has required Commerce to attempt

verification where respondents did not provide non-use certifications from all their Court No. 1:22-cv-00290 (SAV) Page 19

customers. Id. at 27. The Government responds that it had no duty to attempt

verification because the information Alcha submitted was “unverifiable and

incomplete.” Def.’s Resp. at 21, ECF No. 31 (citing IDM at 15–29, J.A. at 14,200–14,

ECF No. 36). It relies on caselaw from the Federal Circuit to reject Alcha’s “collateral

impact” claims. Id. at 18. Further, the Government claims that nearly all the caselaw

Alcha cites from this Court is distinguishable because (1) the respondents in those

cases provided certifications from their customers or (2) China participated. Id. at

22–23, 30–32.

Alcha also argues that Commerce repeats a blunder it has made in several

previous CIT cases by conflating operation of the Export Buyer’s Credit program with

use of the program. Pls.’ Br. at 16–25, ECF No. 29; Pls.’ Reply at 2–3, ECF No. 33.

Alcha points out that this Court has previously remanded cases where Commerce

improperly focused on the innerworkings of the program instead of the actual

evidence submitted. Pls.’ Br. at 19–24, ECF No. 29. The Government replies that

Commerce needed to understand the program’s operation so that it could know what

information was required for a complete verification. Def.’s Resp. at 27–30, ECF No.

31.

Finally, Alcha claims that Commerce cannot require respondents who deny use

of the Export Buyer’s Credit program to provide more proof than respondents denying

use of other programs. Pls.’ Br. at 14–15, ECF No. 29. The Government responds

that Commerce’s differential treatment is appropriate. Def.’s Resp. at 36–37, ECF

No. 31. It explains that, unlike other programs, the Export Buyer’s Credit Program Court No. 1:22-cv-00290 (SAV) Page 20

provides loans to a respondent’s customer, meaning the respondent would likely not

possess the sort of information Commerce needs to complete verification. Id.

China’s Export Buyer’s Credit program is by no means a new issue for this

Court. Since 2012, many trees have given their lives debating whether Commerce

properly supported its findings concerning the program or should have attempted

verification. See Fine Furniture, 36 CIT at 1206. For those cases where parties

provided non-use certifications and China confirmed non-use, the Court has ordered

Commerce to attempt verification. See, e.g., Guizhou Tyre Co. v. United States, 43

CIT __, 415 F. Supp. 3d 1335, 1340–44 (2019) (ordering Commerce “to attempt

verification using all reasonable tools at its disposal” where respondent submitted

non-use certifications and China confirmed that respondent’s customers had not used

the program); Clearon Corp. v. United States, 43 CIT __, 359 F. Supp. 3d 1344, 1359–

60 (2019) (ordering Commerce to attempt verification where respondent submitted

non-use certifications from its customers and China confirmed the non-use claims);

Both-Well (Taizhou) Steel Fittings, Co. v. United States, 46 CIT __, 557 F. Supp. 3d

1327, 1330–31, 1337 (2022) (ordering Commerce to “attempt to verify the non-use

certifications” where customers submitted them and China confirmed that none of

the customers used the program); Risen Energy, 47 CIT __, 2023 Ct. Intl. Trade

LEXIS 52, at *12–14 (ordering Commerce to attempt verification where China

participated and respondent provided non-use certifications and financial records Court No. 1:22-cv-00290 (SAV) Page 21

from half of its U.S. customers — that half making up about 95% of respondent’s

sales).

The Court has also required Commerce to make a new determination where

the respondent failed to submit certified declarations of non-use, but China

participated. See Yama I, 43 CIT __, 419 F. Supp. 3d at 1349–50, 1356. In Yama I,

the respondent provided an uncertified non-use declaration on behalf of its customers.

Id. at 1349. China claimed the Export and Import Bank “searched in its own systems

[for] each of [the] customers identified” and found “that none of the customers had

balances for export buyer’s credits during the [period of review].” Id. at 1349. The

Court found that Commerce erred in finding the respondent had used the program

because there was record evidence to the contrary and ordered Commerce to make a

new determination without resorting to adverse inferences. Id. at 1356. However,

when the respondent and China both fall short, the Court has not required Commerce

to attempt verification. See Cooper Tire II, 46 CIT __, 610 F. Supp. 3d at 1316–18

(sustaining Commerce’s determination where respondents did not provide

certifications or “actually state[] that their customers did not use the [Export Buyer’s

Credit Program]” and China did not provide the requested information); see also

Cooper (Kunshan) Tire Co. v. United States (Cooper Tire I), 45 CIT __, 539 F. Supp.

3d 1316, 1328–31 (2021) (describing the facts of the case in greater detail).

The Federal Circuit has clarified verification’s purpose. Commerce may use

the verification process to check the accuracy of information the parties put on the

record. Hyundai, 15 F.4th at 1089 (“Commerce’s objective” is “to verify the accuracy Court No. 1:22-cv-00290 (SAV) Page 22

and completeness of submitted factual information under 19 C.F.R. § 351.307(d) ….”).

It should not use verification as a fact-finding tool for discovering additional facts the

parties failed to put on the record. Id. at 1089–90. In other words, Commerce is not

required to spend its time attempting to check the accuracy of incomplete or

unverifiable information. Id. at 1089 (“Where necessary information is absent,

Commerce need not conduct a verification in an attempt to obtain the missing

information.”). Verification is not the equivalent of discovery in civil cases. The

parties bear the burden to build an adequate record before the agency and suffer the

consequences should they fail to do so. Qingdao Sea-Line Trading Co. v. United

States, 766 F.3d 1378, 1386 (Fed. Cir. 2014).

Alcha finds itself in a difficult position. China refused to participate in these

proceedings. Alcha did not place any certified statements on the record regarding its

sole customer’s alleged non-use of the program. These facts distinguish Alcha’s case

from the Court’s prior cases and leave Alcha with little record evidence on which to

hang its hat. Considering that lack of verifiable evidence, the Court finds that

Commerce’s determination concerning the Export Buyer’s Credit Program is

supported by substantial evidence.

Because China refused to participate in the review, it is appropriate to draw

an adverse inference against China. When Commerce is missing information about

a subsidy like the Export Buyer’s Credit Program, the countervailing duty statute Court No. 1:22-cv-00290 (SAV) Page 23

provides a two-part process to fill the gap. 19 U.S.C. § 1677e(a). That statute enables

Commerce to use “facts otherwise available” in place of the missing information if:

(1) necessary information is not available on the record, or (2) an interested party or any other person — (A) withholds information that has been requested by [Commerce], (B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested … (C) significantly impedes a proceeding under this subtitle, or (D) provides such information but the information cannot be verified[.]

Commerce may draw an adverse inference from those facts otherwise available

if “an interested party has failed to cooperate by not acting to the best of its ability to

comply with a request for information from [Commerce] ….” Id. § 1677e(b)(1).

Although they are often lumped together, § 1677e(a) and § 1677e(b) are separate

determinations that require distinct analyses. Shanghai Tainai Bearing Co. v.

United States, 47 CIT __, 658 F. Supp. 3d 1269, 1282 (2023). “Commerce first must

determine that it is missing necessary information; and, if it wishes to fill the

resulting gap with facts that reflect an adverse inference against an interested party,

Commerce must secondarily determine that the party has failed to cooperate by not

acting to the best of its ability.” Id. (citing Zhejiang DunAn Hetian Metal Co. v.

United States, 652 F.3d 1333, 1346 (Fed. Cir. 2011)). For the purposes of these

determinations, a foreign government is considered an “interested party.” See 19

U.S.C. § 1677(9)(B) (defining “interested party” to include “the government of a Court No. 1:22-cv-00290 (SAV) Page 24

country in which such merchandise is produced or manufactured or from which such

merchandise is exported”).

Here, Commerce appropriately drew an adverse inference against China

because China refused to answer any questions or otherwise participate in the

investigation. Commerce satisfied the first part of the statute by identifying what

necessary information is missing. See 19 U.S.C. § 1677e(a). It explained that it

needed the names of the banks disbursing loans under the Export Buyer’s Credit

Program, the typical paper trail that a loan generates, and a general roadmap of loan

disbursements to complete verification. IDM at 24–27, J.A. at 14,209–12, ECF No.

36. China did not provide this information, nor was it otherwise on the record.

Whether because (i) necessary information was missing, § 1677e(a)(1); (ii) China

withheld information Commerce requested, § 1677e(a)(2)(A); or (iii) China

significantly impeded the review, § 1677e(a)(2)(C), the test was easily satisfied. The

Court therefore finds that Commerce could legally use the facts otherwise available.

Commerce also satisfied the second part of the test because it has shown that

China failed to act “to the best of its ability.” Shanghai Tainai, 47 CIT __, 658 F.

Supp. 3d at 1282 (citing Zhejiang DunAn, 652 F.3d at 1346). By failing to respond in

any way to Commerce’s inquiries, there can be no doubt China failed to put forth its

“maximum effort” to comply. Nippon Steel Corp. v. United States, 337 F.3d 1373,

1382 (Fed. Cir. 2003) (“Compliance with the ‘best of its ability’ standard is determined

by assessing whether respondent has put forth its maximum effort to provide Court No. 1:22-cv-00290 (SAV) Page 25

Commerce with full and complete answers ….”). Commerce was therefore free to

draw an adverse inference against China.

The collateral harm to Alcha — a cooperating party — does not prevent

Commerce from drawing an adverse inference. The Federal Circuit has held that the

“collateral impact on a cooperating party does not render the application of adverse

inferences in a [countervailing duty] investigation improper.” See Fine Furniture,

748 F.3d at 1372 (citing KYD, Inc. v. United States, 607 F.3d 760, 768 (Fed. Cir.

2010)). Fine Furniture involved a similar situation also involving the government of

China. There, Fine Furniture complained that it was being impermissibly harmed

by the collateral impact of drawing an adverse inference against the uncooperative

Chinese government. Id. at 1371. The Federal Circuit rejected this argument,

holding that “a remedy that collaterally reaches [the cooperating respondent] has the

potential to encourage … China to cooperate so as not to hurt its overall industry.”

Id. at 1373. The possibility of encouraging Chinese cooperation in future proceedings

was enough to justify the collateral impact on the cooperating party. “Although it is

unfortunate that cooperating respondents may be subject to collateral effects due to

the adverse inferences applied when a government fails to respond to Commerce’s

questions, this result is not contrary to the statute or its purposes, nor is it

inconsistent with this court’s precedent.” Id. at 1373; see also KYD, 607 F.3d at 768

(explaining that Commerce’s application of an adverse inference was “likely to have

the effect of … inducing cooperation from” the non-cooperating party). This holding

is not without limits. The Federal Circuit took notice that Commerce “did not apply Court No. 1:22-cv-00290 (SAV) Page 26

adverse inferences to substitute for any information that was actually submitted by

the cooperating respondents” in that case. Fine Furniture, 748 F.3d at 1372.

Fine Furniture governs here, and Commerce’s actions fall within the bounds of

its limitations. Commerce did not “substitute for any information” Alcha “actually

submitted” because the information Alcha submitted was not verifiable. Id.; see 19

U.S.C. § 1677e(a)(2)(D) (providing for use of facts available when “information cannot

be verified”); IDM at 28–29, J.A. at 14,213–14, ECF No. 36 (“Commerce is unable to

verify in a meaningful manner the little information on the record indicating non-use

….”). Furthermore, the negative impact on China’s aluminum sheet industry could

encourage China to cooperate in the future. Fine Furniture, 748 F.3d at 1372–73.

The Federal Circuit’s holdings bind this Court and dispense with Alcha’s claim that

the collateral harm to it prevents Commerce from drawing an adverse inference

against China.

Common sense and civil trial practice also support this conclusion. As our

Court noted in another countervailing duty case where China refused to provide

information, “[A] party with a motive to provide information favorable to it may be

presumed to possess information adverse to it when it fails to produce the information

….” GPX Int’l Tire, 37 CIT at 58. The use of an adverse inference to punish

noncooperation is not unique to countervailing duty cases. It is a general rule of

evidence that a jury may draw an adverse inference against a party that fails to

produce evidence. See 2 McCormick on Evidence § 264 (8th ed. 2022) (“When it would

be natural under the circumstances for a party to … produce documents or other Court No. 1:22-cv-00290 (SAV) Page 27

objects in his or her possession as evidence and the party fails to do so, tradition has

allowed the adversary to use this failure as the basis for invoking an adverse

inference.”); Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007) (“The

general rules of evidence law create an adverse inference when evidence has been

destroyed ….”). The normal operation of the Federal Rules of Civil Procedure refutes

the notion that Alcha is a victim of any unfairness. Cf. Fed. R. Civ. P. 37(e)(2)(B)

(permitting a judge to “instruct the jury that it may or must presume the information

was unfavorable to the party” failing to produce it).

Alcha further doomed its argument by failing to place on the record a certified

statement of non-use from its sole U.S. customer. It therefore may not take

advantage of rulings from this Court involving cases where such certified statements

were filed. It must instead accept the record that it had the burden to develop. See

Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337–38 (Fed. Cir. 2016)

(quoting QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011)) (“[T]he

burden of creating an adequate record lies with interested parties and not with

Commerce.”). Alcha submitted its sole U.S. customer’s uncertified declaration of non-

use and no evidence of its customer’s books and records to support that bare assertion.

Initial Questionnaire Resp. at 28–29, J.A. at 80,066–67, ECF No. 37. Paired with

China’s failure to participate, that record left Commerce with nothing to verify. See

Hyundai, 15 F.4th at 1089 (holding that Commerce is not required to verify

information “so incomplete as to be unreliable”). Court No. 1:22-cv-00290 (SAV) Page 28

Finally, it makes no difference that Commerce requires less proof from

respondents claiming non-use of other subsidy programs. As the Government

explains, a loan under the Export Buyer’s Credit Program is not issued to the

respondent but to the respondent’s customer. IDM at 21–22, J.A. at 14,206–07, ECF

No. 36. It follows that Commerce would either need the customer’s data to verify non-

use or an indication of the customer’s willingness to participate in the administrative

review via a certified declaration. Where the customer refuses to take the minimal

step to certify its non-use, the customer signals that it is unlikely to participate in the

formal verification process. Cf. Both-Well (Taizhou), 46 CIT __, 557 F. Supp. 3d at

1335 (noting that “non-use certifications themselves suggest that the customers must

have information that could be used to verify the non-use certifications.”). Commerce

cannot be faulted for taking this signal at face value.

Whatever may be required of Commerce when a respondent provides

customers’ non-use certifications or the Chinese government responds to

questionnaires, those cases offer Alcha no help. Faced with a record containing only

a bare assertion of non-use and no information from China, Commerce correctly

resorted to using the facts otherwise available and to drawing an adverse inference

when doing so. Its determination on that basis is supported by substantial evidence,

in compliance with the law, and SUSTAINED.

II. Less Than Adequate Remuneration for Primary Aluminum

The Court also sustains Commerce’s use of a seventeen percent value added

tax rate to calculate the benefit conferred on Alcha through its purchases of primary Court No. 1:22-cv-00290 (SAV) Page 29

aluminum from China. The regulation, 19 C.F.R. § 351.511(a)(2)(iv), requires

Commerce to establish the value added tax rate based on what the respondent would

have paid if it imported the aluminum. Here, Alcha submitted a rate based on its

purchases of domestically produced aluminum, not imported aluminum. Alcha’s

suggested rate therefore does not meet the regulation’s requirements, and Commerce

properly used the seventeen percent rate for imported aluminum that China provided

in the underlying investigation.

When a foreign government provides goods to a domestic company for less than

adequate remuneration, Commerce may find that the provision of those goods is

countervailable. 19 C.F.R. § 351.511(a)(1). Commerce will examine whether the

foreign government provides the goods to the company at a price that falls below the

market price in the relevant country. Sometimes, Commerce is unable to determine

the relevant market price because “actual transactions” in that country are

unavailable. Id. § 351.511(a)(2)(i). In such circumstances, Commerce will instead set

a comparison price or benchmark based on a world market price that reasonably

would be available to purchasers in the country at issue. Id. § 351.511(a)(2)(ii).

Commerce must adjust its benchmark to reflect what the foreign company

“actually paid or would pay if it imported the product.” Id. § 351.511(a)(2)(iv). Those

adjustments should account for the “delivery charges and import duties” an importer

would have paid such as a value added tax. Id. A value added tax is “a consumption

tax placed on a product whenever value is added at each stage of the supply chain, Court No. 1:22-cv-00290 (SAV) Page 30

from production to the point of sale.” Jiangsu Zhongji, 44 CIT __, 435 F. Supp. 3d at

1274 n.1. As with any other necessary information, Commerce may draw from the

facts otherwise available to fill gaps left by the parties. See 19 U.S.C. § 1677e(a)(1)

(allowing use of facts available if “necessary information is not available on the

record”).

In the original investigation, China submitted evidence that the value added

tax rate for primary aluminum was seventeen percent. IDM at 33, J.A. at 14,218,

ECF No. 36. No party disputes that the seventeen percent tax rate is on the record

of this review. Pls.’ Br. at 27–30, ECF. No. 29; Def.’s Resp. at 10–11, ECF No. 31;

Def.-Int.’s Br. at 15–17, ECF No. 32. In response to Commerce’s initial questionnaire,

Alcha provided spreadsheets documenting its primary aluminum purchases during

the period of review. Initial Questionnaire Resp., Exs. 39–40, J.A. at 81,881–904,

ECF No. 37. The spreadsheets showed Alcha paid a thirteen percent value added tax

rate on those purchases. Id. Commerce did not attempt to verify the thirteen percent

rate. Instead, Commerce used the higher seventeen percent rate that China

previously provided to adjust its benchmark under 19 C.F.R. § 351.511(a)(2)(iv). IDM

at 34, J.A. at 14,219, ECF No. 36. Commerce then calculated the benefit Alcha

received by comparing the price Alcha paid to the benchmark. Id.

Alcha argues that Commerce was obligated to attempt verification of the

thirteen percent rate rather than rely on the seventeen percent rate China earlier

provided. Pls.’ Br. at 29, ECF No 29. Commerce responds that it was under no such Court No. 1:22-cv-00290 (SAV) Page 31

obligation because the thirteen percent rate Alcha submitted was based on domestic

purchases, not imports as the regulation requires. Compare Pls.’ Br. at 29–30, ECF

No. 29 (arguing that Commerce should have attempted verification of the thirteen

percent rate), with 19 C.F.R. § 351.511(a)(2)(iv) (mandating Commerce use the price

Alcha “would pay if it imported the product”). The parties also disagree over whether

Commerce applied an adverse inference under 19 U.S.C. § 1677e(a)(2). Alcha claims

that Commerce drew an adverse inference by selecting the “substantially higher”

seventeen percent rate when more accurate data was on the record. Pls.’ Br. at 29,

ECF No 29. Commerce disagrees, saying it only neutrally selected from the facts

otherwise available, which was permissible because Commerce could not use the

other data on the record. Def.’s Resp. at 41, ECF No. 31. Alcha responds that

Commerce should have given it an opportunity to supplement the record with

information proving the thirteen percent rate was accurate. Pls.’ Br. at 29–30, ECF

No. 29 (explaining that the applicable value added tax rate would have been “easily

verifiable” because China’s schedule for these rates is public).

C.

Alcha’s counsel conceded at oral argument that the thirteen percent rate it

provided was for goods it purchased domestically. Oral Arg. Tr. at 40:7–14, ECF No.

42 (The Court: “[W]hat did your client actually provide [Commerce] with regard to

its invoices, books, and records? Were there any imports in there or not?” Alcha’s

Counsel: “… I don’t believe so.” The Court: “You don’t believe there were any imports

in there?” Alcha’s Counsel: “Yes.”). This ends the matter. The regulation requires Court No. 1:22-cv-00290 (SAV) Page 32

Commerce to “adjust the comparison price to reflect the price that a firm actually

paid or would pay if it imported the product.” 19 C.F.R. § 351.511(a)(2)(iv) (emphasis

added). Thus, Commerce correctly declined to use Alcha’s proffered rate because it

did not reflect Alcha’s purchase of imported goods. The only information on the record

reflecting China’s value added tax rate for imported aluminum was that provided by

the Chinese government in an earlier investigation. Commerce cannot be faulted for

failing to consider information that does not meet the regulation’s requirements. It

was Alcha’s responsibility to build the record. See Nan Ya Plastics, 810 F.3d at 1337–

38 (quoting QVD Food, 658 F.3d at 1324) (‘“[T]he burden of creating an adequate

record lies with interested parties and not with Commerce.”’). Because Alcha failed

to place information on the record reflecting the tax rates for imported materials, it

bears the cost of its failure.

Alcha’s adverse inference argument fails for the same reason. Commerce may

select from the facts otherwise available on the record when the parties fail to provide

information necessary to calculate the benchmark. See 19 U.S.C. § 1677e(a)(1).

Commerce needed the value added tax rate for imports of primary aluminum during

the period of review. See 19 C.F.R. § 351.511(a)(2)(iv) (requiring Commerce to adjust

the benchmark for “delivery charges and import duties”). With no responsive

information from Alcha, Commerce looked at the record and neutrally selected the

only rate that met the regulation’s import requirement. It drew no adverse inference.

Commerce’s decision to use the only tax rate on the record that met the regulation’s Court No. 1:22-cv-00290 (SAV) Page 33

requirement to be based on the cost to import primary aluminum is supported by

substantial evidence and therefore SUSTAINED.

CONCLUSION In every trade matter before Commerce, the record created by the parties

determines the outcome. Alcha's complaints all stem from information missing from

the record. As the party charged with building that record, it must reap what it failed

to sow. Commerce's Final Results are therefore SUSTAINED.

Dated: /4 Nb; // 2.rn_l/ Yo~·k, New York