Commerce Switches to AFA on Billing Adjustments, Ditches 'Duty Neutral' Drawback Adjustment
The Commerce Department decided to use adverse facts available related to antidumping duty respondent Assan Aluminyum Sanayi ve Ticaret's billing adjustments following a Court of International Trade order questioning whether Assan acted to the best of its ability in its remand results submitted to the trade court May 31. The agency also revised the duty drawback adjustment methodology it applied to Assan by dividing the amount of duties exempted by a Turkish duty exemption program during the AD investigation period over the total quantity of exports made under the program to calculate a per-unit drawback adjustment. The result, if sustained, would be a de minimis rate for Assan (Assan Aluminyum Sanayi ve Ticaret v. United States, CIT # 21-00246).
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During the AD investigation on common alloy aluminum sheet from Turkey, Commerce made a duty drawback adjustment for some of Assan's inputs which were exempted from duties in Turkey through the Inward Processing Regime. In a previous opinion, the trade court upheld the general grant of the adjustment but said the calculation of the adjustment was illegal given the precedent set by the U.S. Court of Appeals for the Federal Circuit. Using its "duty neutral" methodology, Commerce initially upwardly adjusted Assan's constructed export price based on the uncollected duty amount by allocating the amount not collected to all production for the investigation period.
On remand, the agency ditched the duty neutral methodology and divided the amount of the duties that were exempted during the investigation period over the total quantity of exports made to "calculate a per-unit duty drawback adjustment that reasonably reflects the duties actually exempted for the exports of subject merchandise made to the United States." Commerce said the move is in line with the court's order and Federal Circuit precedent requiring an upward adjustment to CEP based on the entire drawback that occurred.
Addressing the court's remand order related to the billing adjustments (see 2303080044), Commerce said using AFA was necessary. In the investigation, Assan sought two CEP adjustments -- an upward invoicing error adjustment and a downward product quality adjustment. Commerce asked Assan to create a separate field for each adjustment, though Assan initially reported all the adjustments in a single field. In a later questionnaire response, Assan separated the adjustments into different fields but failed to provide the requested sample documentation for the quality adjustments field.
In the investigation's preliminary determination, Commerce had relied on the lowest value that Assan reported, effectively relying on AFA without actually claiming it. In the final, the agency instead relied on all of Assan's reported information, finding that the company cooperated to the best of its ability. The trade court found this conclusion to be unsupported, leading to the agency using AFA on remand and reverting to its preliminary decision to use Assan's lowest value.
"Commerce requested that Assan provide supporting documentation (e.g., customer specific documentation) for each billing adjustment as reflected in its U.S. price," the remand results said. "Instead, Assan withheld information and provided incomplete supporting documentation needed to corroborate and verify the proper adjustment."