US Federal Circuit Rules For Inclusion Of Voluntary Respondents’ CVD Rates In Calculation Of 'All Others' Duty Rate

Keywords: CAFC, CIT, countervailing duty investigations, CVD rates, exporters

The US Court of Appeals for the Federal Circuit (CAFC) has reversed a US Court of International Trade (CIT) decision on the calculation of the "All Others" duty rate in countervailing duty (CVD) Investigations. Specifically, the CAFC ruled that the duty margins assigned to the exporters that volunteered for a CVD investigation (voluntary respondents) should be included in the tallying of the All Others duty rate for those not individually examined in the investigation.

The US CVD statute authorizes the US Department of Commerce (Commerce) to select a sample of exporters (mandatory respondents) for individual investigation when it is conducting a CVD investigation of a particular product in a market involving a large number of exporters. Exporters that are not initially selected for investigation but wish to participate, and are accepted by Commerce, (voluntary respondents) may supply the necessary information to Commerce for calculation of individual CVD rates. "All Others" are those exporters not examined as mandatory respondents or voluntary respondents.

Mandatory respondents that cooperate with Commerce's investigation are given CVD rates particular to their individual circumstances. When mandatory respondents fail to cooperate to the best of their ability, they are given rates determined from adverse facts available (AFA).1

Generally, the All Others duty rate is an amount equal to the weighted-average of the countervailable subsidy rates established for exporters individually investigated. If the established rates are zero or de minimis (less than 2 percent), or are determined on the basis of AFA, Commerce may use "any reasonable method" to establish an All Others rate for those not individually investigated.2

The underlying case involved a CVD investigation of aluminum extrusions from the People's Republic of China, where the three mandatory respondents that refused to cooperate with Commerce were given an AFA rate of 374.15 percent, while the two voluntary respondents were awarded individual rates that reflected their own particular circumstances after individual investigations. After excluding the AFA rate and the voluntary respondents' rates, Commerce invoked the "reasonable method" clause and imposed the 374.15 percent rate on all other exporters and producers. Two US importers of Chinese aluminum extrusions, Evergreen Solar Inc. and Eagle Metal...