Zhaoqing New Zhongya Aluminum Co. v. United States

SLIP OP 12 - 130

UNITED STATES COURT OF INTERNATIONAL TRADE

ZHAOQING NEW ZHONGYA ALUMINUM
CO., LTD; ZHONGYA SHAPED
ALUMINUM; AND GUANG YA ALUMINUM Before: Donald C. Pogue,
INDUSTRIES, CO. LTD, Chief Judge
Plaintiffs, Consol. Court No. 11-001781
v.

UNITED STATES,

Defendant.

OPINION

[Commerce’s final determination is AFFIRMED.]

Dated: October 11, 2012

Peter J. Koenig, Squire Sanders LLP, of Washington, DC, for
the Plaintiffs Zhaoqing New Zhongya Aluminum Co., Ltd., Zhongya
Shaped Aluminum (HK) Holding, Ltd., and Karlton Aluminum Company
Ltd.

Mark D. Davis, Davis & Leiman P.C., of Washington, DC, for the
Plaintiffs Guang Ya Aluminum Industries Co., Ltd., and Guang Ya
Aluminum Industries (Hong Kong) Ltd.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, of Washington, DC, for
the Defendant. With her on the briefs were Stuart E. Delery,
Acting Assistant Attorney General, Jeanne E. Davidson, Director,
and Reginald T. Blades, Jr., Assistant Director. Of counsel on the
briefs was Rebecca Canto, Attorney, Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce, of Washington,
DC.

Stephen A. Jones and Daniel L. Schneiderman, King & Spalding
LLP, of Washington, DC, for the Defendant-Intervenors, the Aluminum

1
This case is consolidated with Court No. 11-00196.
Consol. Court No. 11-00178 Page 2

Extrusions Fair Trade Committee.

Pogue, Chief Judge: In this action, Plaintiffs, who

are Chinese producers of extruded aluminum, seek review of

certain findings in the United States Department of Commerce’s

(“Commerce” or “the Department”) antidumping investigation of

extruded aluminum from the People’s Republic of China (“China”).2

Specifically, Plaintiffs allege that Commerce erred in collapsing

into a single entity three affiliated exporter/producers, the

Guang Ya group, New Zhongya, and Xinya, and improperly applied

2
Commerce published its preliminary determination in an
antidumping investigation into certain aluminum extrusions from
China on November 12, 2010. It published an Amended Preliminary
Determination on January 4, 2011, and a Final Determination on
April 4, 2011. Aluminum Extrusions from the People’s Republic of
China, 76 Fed. Reg. 18,524 (Dep’t Commerce Apr. 4, 2011) (final
determination of sales at less than fair value) (“Final
Determination”), and accompanying Issues & Decision Memorandum,
A-570-967 (Apr. 4, 2011), Admin. R. Pub. Doc. 513 available at
http://ia.ita.doc.gov/frn/summary/prc/2011-7927-1.pdf (last
visited Oct. 10, 2012) (“I & D Memo”) (adopted in Final
Determination, 76 Fed. Reg. at 18,525).
The period of investigation was July 1, 2009 – December 31,
2009. The investigation covers extruded aluminum shapes and
forms made with aluminum alloys containing metallic elements
which correspond to the alloy series designations published by
The Aluminum Association commencing with the numbers 1, 3, and 6
(or other certifying body equivalents). The final determination
further describes the chemical composition of each of these
numerical designations. Final Determination, 76 Fed. Reg. at
18,525. Aluminum extrusions are produced and imported in a wide
variety of shapes, forms, and finishes and may be described as
parts for finished products that are assembled after importation,
including, inter alia, window and door frames, solar panels, or
furniture. Id. at 18,525–26 (listing products included and
excluded from the order).
Consol. Court No. 11-00178 Page 3

adverse facts available (“AFA”) to this collapsed entity when

calculating antidumping duty rates. As explained below,

Commerce’s final determination is supported by a reasonable

reading of the record.

The court has jurisdiction pursuant to

§ 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19

U.S.C. § 1516a(a)(2)(B)(i) (2006)3 and 28 U.S.C. § 1581(c)

(2006).

STANDARD OF REVIEW

Under this court’s familiar standard of review,

Commerce’s determination will be affirmed unless it is

“unsupported by substantial evidence on the record, or otherwise

not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

Substantial evidence means “more than a mere scintilla” of “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Universal Camera Corp. v. NLRB, 340

U.S. 474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938)). To determine if substantial evidence

exists, the court reviews the record as a whole, including

whatever “fairly detracts from [the conclusion’s] weight.” Id.

at 488. It is also relevant here that the possibility of drawing

3
All further citations to the Tariff Act of 1930, as
amended, are to Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 11-00178 Page 4

two inconsistent conclusions from the evidence does not

invalidate Commerce’s conclusion as long as it remains supported

by substantial evidence on the record. Id. (“[A] court may [not]

displace the [agency’s] choice between two fairly conflicting

views, even though the court would justifiably have made a

different choice had the matter been before it de novo.”).

BACKGROUND

In its antidumping investigation, as is relevant here,

Commerce initially found that the Plaintiffs were separate from

the China-wide entity. It then determined that the Guang Ya

group (“Guang Ya”), New Zhongya (“Zhongya”), and Xinya met the

statutory and regulatory requirements for collapsing affiliated

companies. Specifically, the relevant statute directs Commerce

to consider as affiliated any “members of a family.” 19 U.S.C.

§ 1677(33)(A). The applicable regulation calls for collapsing

affiliated companies where: 1) a shift in production between

factories would not require “substantial retooling” of either

facility and 2) there is a “significant potential for the

manipulation of price or production.” I & D Memo at 31; 19

C.F.R. § 351.401(f). When evaluating potential for manipulation,

Commerce considers relevant factors, including but not limited

to: 1) the level of common ownership, 2) the extent to which

managers and board members sit on the board of directors of an
Consol. Court No. 11-00178 Page 5

affiliated firm, and 3) whether operations are intertwined. 19

C.F.R. § 351.401(f)(2).

As an initial matter, Commerce determined that the

companies were affiliated and that a shift in production between

them would not require significant retooling of facilities.4 I &

D Memo, Comment 4 at 32. Commerce then turned to the relevant

factors identified by the regulations for assessing potential for

manipulation. Id.

With regards to the first factor, common ownership,

Commerce found that the owners of these companies constituted a

family grouping, pursuant to 19 U.S.C. § 1677(33)(A), and that

this grouping satisfied the criteria for common control under 19

U.S.C. § 1677(33)(F) because members of the Kuang family grouping

owned a substantial portion, if not all, of each of the three

companies. Final Determination, 76 Fed. Reg. at 18,527. While

Commerce initially stated that it did not know the exact

ownership of Xinya,5 it later gathered evidence, all of which

indicated that a member of the Kuang family owned Xinya, even

though that evidence could interpreted in a manner that leads to

4
No party challenged these findings.
5
Aluminum Extrusions from the People’s Republic of China,
75 Fed. Reg. 69,403, 69,407 (Dep’t Commerce Nov. 12, 2010)
(notice of preliminary determination of sales at less than fair
value and preliminary determination of targeted dumping)
(“Preliminary Determination”).
Consol. Court No. 11-00178 Page 6

inconsistent conclusions. I & D Memo, Comment 4 at 34–35.

Specifically, in this antidumping investigation, Guang Ya claimed

a Kuang sibling was a Xinya shareholder, whereas Zhongya stated

on the public record of an accompanying countervailing duty

investigation that the same Kuang sibling owned Xinya.

Preliminary Determination, 75 Fed. Reg. at 69,407. Commerce

attempted to ascertain who owned Xinya during the verification

stage of this antidumping investigation, but Xinya refused to

cooperate. I & D Memo, Comment 4 at 34–35. Commerce did,

however, find undisputed record evidence that a Kuang brother-

in-law was the general manager of Xinya. Id. at 32. Because

none of the parties recanted earlier statements that the owner or

shareholder of Xinya was a Kuang sibling, and because there was

no evidence on the record to suggest that anyone other than a

Kuang sibling controlled Xinya, Commerce concluded that the

earlier evidence showing familial affiliation was credible and

considered Xinya to be owned by the Kuang family grouping.

Def.’s Opp’n to Pls.’ Rule 56.2 M. For J. upon the Agency R., ECF

No. 31 at 9 (“Def.’s Br.”).

While Commerce did not find any common board members

or management between the companies, it concluded that such a

finding was unnecessary because the family grouping constituted a

single unit, and Kuang family members managed or directed each of

the three companies. Def.’s Br. at 14. Furthermore, Commerce
Consol. Court No. 11-00178 Page 7

found other factors supported a finding of potential for price

manipulation. Specifically, not only did the Kuang family hold

senior leadership positions in each company, but the record

showed money transfers from Xinya to Zhongya which Commerce took

as indicia that the companies were intertwined.6 During

verification, Zhongya offered two inconsistent explanations for

the money transfers. Final Collapsing Memo at 4. Because the

verification process acts as a spot check and is not designed to

be exhaustive, Commerce concluded that “the fact [we] did not

uncover additional evidence of intertwined transactions during

the course of these verifications is not telling” and that the

relationship between the three companies “poses a significant

potential for the manipulation of price or production.” Id. at

10. It therefore collapsed Guangya, Zhongya, and Xinya into a

single entity when calculating AD duties.7 Final Determination,

6
The presence of one or two payments on Zhongya’s books
appears to have been discovered between the preliminary and final
determinations. Final Affiliation/Collapsing Mem., A-570-967,
ARP 09 (Mar. 28, 2011), Admin. R. Con. Doc. 190 [Pub. Doc. 515]
at 4 (“Final Collapsing Memo”). Commerce in its preliminary
collapsing memo concedes that at the time nothing on the record
indicated the three companies’ operations were intertwined.
Prelim. Affiliation/Collapsing Mem., A-570-967, ARP 09 (Oct. 27,
2010), Admin. R. Con. Doc. 142 [Pub Doc. 356] at 9 (“Preliminary
Collapsing Memo”). Nonetheless, Commerce went on to find that
“the relationship between the Guang Ya Group, New Zhongya and
Xinya poses a significant potential for the manipulation of price
or production.” Id.
7
During the course of the investigation, Commerce earlier
identified another producer/importer company, Da Yang Aluminum
Consol. Court No. 11-00178 Page 8

76 Fed. Reg. at 18,527.

When calculating the applicable dumping margin for the

collapsed entity, Commerce relied on adverse facts available,

pursuant to 19 U.S.C. § 1677e(b), because each of the three

companies that makes up the collapsed entity failed to cooperate.

Id. at 18,528–29. According to Commerce, the resulting record

was filled with “such extensive omissions and inaccuracies that a

reasonably accurate, reliable dumping margin could not be

calculated.” Def.’s Br. at 15. First, Guang Ya possessed

information concerning aluminum billet consumption, and knew that

Commerce required this data, but, without explanation, removed

the data from its database. I & D Memo, Comment 5 at 52. Even

after Commerce requested the information in a supplemental

questionnaire, Guang Ya did not produce it. Id. Guang Ya later

submitted aluminum billet consumption data that was inconsistent

with data that had already been verified. Id. Second, Zhongya

failed to provide complete and accurate U.S. sales data upon

Commerce’s request. Id. Finally, Xinya was not responsive in

any appreciable way to Commerce’s multiple antidumping

questionnaires, and during verification did not provide requested

Co., as potentially affiliated with the three at hand because it
too was owned by the Kuang family. Preliminary Determination, 75
Fed. Reg. at 69,408. Da Yang, however, failed to respond to the
initial quantity and value questionnaire sent by Commerce, so
Commerce treated it as part of the China-wide entity and,
therefore, not eligible for a separate rate. Id.
Consol. Court No. 11-00178 Page 9

documents or make personnel available who could accurately answer

Commerce’s questions. Id.

Accordingly, using adverse inferences, Commerce

calculated a final rate of 33.28% for the Guang Ya/Zhongya/Xinya

entity. Final Determination, 76 Fed. Reg. at 18,530. Plaintiffs

challenge this rate.

DISCUSSION

Plaintiffs claim both that the record cannot support a

finding that the three companies are affiliated and that it does

not support Commerce’s decision to collapse the corporations into

one entity. Plaintiffs also challenge Commerce’s decision to

impose an AFA rate. Each challenge is considered in turn.

I. Affiliation

Plaintiffs first argue that it was improper for

Commerce to find that Xinya was affiliated with Zhongya and Guang

Ya where Commerce was unable to verify who owned Xinya.

Plaintiffs also claim that a mere finding of familial affiliation

does not support a finding that the family’s respective companies

are also affiliated. These arguments fail.

Under the applicable statute, Commerce may find that

“members of a family” are affiliated. 19 U.S.C. § 1677(33)(A).

Prior decisions have approved a finding of company affiliation on

the basis of ownership by a single family. Ferro Union, Inc. v.
Consol. Court No. 11-00178 Page 10

United States, 23 CIT 178, 193–95, 44 F. Supp. 2d 1310, 1325–26

(1999). In such cases, Commerce makes the legitimate choice to

treat the family grouping as a “person” under the statute. Id.

at 194–96, 1326–27.

Commerce properly found that Xinya is owned by a Kuang

sibling, that all three companies are controlled by the Kuang

family, and therefore that the companies are affiliated. While

the record does contain potentially conflicting information as to

who owns Xinya, Commerce could not verify this information

because Xinya refused to cooperate. I & D Memo, Comment 4 at

34–35. This forced Commerce to resort to the information that

Guang Ya and Zhongya earlier placed on the record, evidence

indicating that a Kuang sibling owns Xinya. Because neither

Guang Ya nor Zhongya recanted their earlier statements with

regard to Xinya’s ownership, Commerce treated the evidence as

reliable. Def.’s Br. at 9.

Plaintiffs mistakenly rely on Hontex Enterprises v.

United States, 28 CIT 1000, 1012, 342 F. Supp. 2d 1225, 1235

(2004), for the proposition that Commerce cannot find that

companies are affiliated based solely on their failure to undergo

verification. This argument misses the point. Commerce did not

base its decision to find affiliation solely on Xinya’s failure

to undergo verification. Rather, when Xinya was uncooperative

during verification, Commerce turned to evidence previously on
Consol. Court No. 11-00178 Page 11

the public record — statements that Zhongya and Guang Ya made on

the public record of this AD investigation and the accompanying

CVD investigation. While these statements are not perfectly

consistent, they were not recanted and both implicated a Kuang

sibling in the ownership or control of Xinya. Commerce had no

reason to believe that someone other than a Kuang sibling owned

or controlled Xinya.8 In addition, Commerce also found

undisputed evidence on the record that the general manager of

Xinya was a Kuang brother-in-law. Def.’s Br. at 8. Therefore,

Commerce reasonably determined that the record supported a

finding that Xinya was owned by a Kuang sibling.9

Commerce’s attempts to verify Xinya’s ownership failed

because Xinya created a situation where Commerce was unable to

8
Xinya did not respond to Commerce’s initial AD
questionnaire but rather provided documentation purporting to
show it was owned by Xinya Holdings. However, Commerce stated
that Xinya’s documentation failed to demonstrate it was not
affiliated with Guang Ya and Zhongya, and sent both a
supplemental questionnaire and another request to Xinya for the
information sought in the initial AD questionnaire. I & D Memo,
Comment 5 at 41–42. Xinya responded to the supplemental
questionnaire, but stated that it was responding only to the
supplemental questionnaire, not to the remainder of Commerce’s
request. Id. at 42.
9
Plaintiffs also assert incorrectly that even if all three
companies were owned by members of the same family, Commerce
failed to find that there was some measure of control between the
companies and therefore erred in finding they were affiliated.
This argument fails because the statute is disjunctive and
Commerce need only find that persons are members of the same
family or are under common control in order to be considered
affiliated. 19 U.S.C. § 1677(33)(A) & (F).
Consol. Court No. 11-00178 Page 12

obtain necessary data, leaving Commerce to rely on earlier record

evidence. Even without Xinya’s refusal to cooperate, however,

there was still sufficient evidence on the record to support

Commerce’s conclusion that Xinya is owned by a Kuang sibling.

See Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“We will, however,

uphold a decision of less than ideal clarity if the agency’s path

may reasonably be discerned.” (internal quotation marks

omitted)); Universal Camera Corp., 340 U.S. at 488 (a court may

not displace an agency’s choice between two conflicting views, so

long as its choice is supported by substantial evidence).

Therefore, because Commerce’s finding of affiliation was

supported by substantial evidence, it will be affirmed.

II. Potential for Price or Production Manipulation

Plaintiffs next challenge Commerce’s decision to

collapse the three entities, arguing that Commerce could not

establish a “significant potential for the manipulation of price

or production.” I & D Memo, Comment 4 at 31; 19 C.F.R.

§ 351.401(f).

As noted above, when evaluating potential for

manipulation, Commerce considers relevant factors that are

primarily, but not limited to: 1) the level of common ownership,

2) the extent to which managers and board members sit on the

board of directors of an affiliated firm, and 3) whether
Consol. Court No. 11-00178 Page 13

operations are intertwined. 19 C.F.R. § 351.401(f)(2). Commerce

also looks for “relatively unusual situations, where the type and

degree of relationship is so significant that [it] finds there is

a strong possibility of price manipulation.” Nihon Cement Co. v.

United States, 17 CIT 400, 426 (1993) (citation omitted). None

of these factors alone are dispositive, and when Commerce

evaluates them, it looks for actual price manipulation in the

past and the possibility of future manipulation. Antidumping

Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,346 (May

19, 1997) (“[A] standard based on the potential for manipulation

focuses on what may transpire in the future.”). Commerce

considers these factors “in light of the totality of the

circumstances,” when deciding whether collapsing is appropriate.

Koyo Seiko Co. v. United States, 31 CIT 1512, 1535, 516 F. Supp.

2d 1323, 1346 (2007). When companies are deemed affiliated based

on common family ownership, the court has recognized that “the

existence of the family group, and the significant controlling

ownership by the family members, reasonably supports Commerce’s

collapsing decision.” Catfish Farmers of Am. v. United States,

33 CIT __, 641 F. Supp. 2d 1362, 1371 (2009).

Addressing the first factor that Commerce considers

when evaluating potential for manipulation of price or

production, Plaintiffs assert incorrectly that there is no common

ownership between the companies and that even if there were
Consol. Court No. 11-00178 Page 14

common ownership, Commerce’s reasons for collapsing are flawed

because Commerce conflates family affiliation with risk of

manipulation. These arguments are unavailing because, for the

purposes of the investigation, Commerce treated the Kuang family

as a unit when looking for common ownership, and the Kuang family

“essentially [holds] full ownership” of Guangya, Zhongya, and

Xinya. Final Determination, 76 Fed. Reg. at 18,527; I & D Memo,

Comment 4 at 32 (“It is undisputed that this family is virtually

the sole owner of the Guang Ya Group and New Zhongya, and the

information on the record indicates that Xinya is also owned by

the Kuang family.”). Plaintiffs concede that if Commerce treats

the family as a unit, then there is indeed common ownership.

Pls.’ Rule 56.2 Mem., ECF No. 27, at 9 (“Pls.’ Br.”) (“There are

no common owners, unless one constructs a family group and says

that it owns each company.”). Pursuant to 19 C.F.R.

§ 351.401(f)(2)(i), Commerce is to examine the “level of common

ownership” and here Commerce has found not only common ownership,

but virtually sole ownership.10

With regards to the next § 351.401(f)(2) factor,

10
Plaintiffs assert that common family ownership is not a
sufficient, sole indicator of price manipulation, Pls.’ Br. at
10, but Commerce does not rely on this reasoning. Rather, as
discussed in the remainder of this section, Commerce went on to
analyze the rest of the § 351.401(f)(2) factors and, taking the
record as a whole, concluded that there existed strong potential
for manipulation.
Consol. Court No. 11-00178 Page 15

Plaintiffs argue that because there is no overlap between the

three companies’ managerial employees or board members, Commerce

erred in finding that potential for manipulation exists. This

argument, however, again fails to recognize that Commerce is

permitted to treat the Kuang family as a single unit. Because

Commerce found that Kuang family members sit on the boards of

directors and hold management positions in Guang Ya and Zhongya,

Final Determination, 76 Fed. Reg. at 18,527, there is, therefore,

overlap between management and boards of directors. Catfish

Farmers, 33 CIT at __, 641 F. Supp. 2d at 1371–72.

Plaintiffs finally challenge Commerce’s finding with

regards to the third § 351.401(f)(2) factor: intertwined

operations between the companies. They assert that the financial

transactions at issue were one-time, personal transactions that

were not between the companies and therefore not business

related.

Plaintiffs are correct that the only evidence on the

record to support Commerce’s finding that the companies are

intertwined is financial transfers that were discovered during

Zhongya’s verification. Final Collapsing Memo at 10. But when

Commerce inquired as to the nature of these transactions, it

received two different explanations that were inconsistent with

Zhongya’s accounting books. Id. Because verification is not

exhaustive and Commerce was denied access to Xinya’s
Consol. Court No. 11-00178 Page 16

documentation, Commerce could not determine the exact nature of

these transactions and therefore decided that, given the record

as a whole, these transactions support the conclusion that the

companies were intertwined. Id. While Plaintiffs strenuously

disagree with Commerce’s characterization of these transactions,

they have not placed on the record any evidence to support the

assertion that the transactions were of a personal nature.

Without such evidence, the court cannot give weight to

Plaintiffs’ claim. Pure Gold, Inc. v. Syntex, 739 F.2d 624, 627

(Fed. Cir. 1984) (“Mere conclusory assertions do not raise a

genuine issue of fact.” (emphasis omitted)). Therefore, on this

record, Commerce’s decision to collapse the affiliated companies,

Guang Ya, Zhongya, and Xinya, is supported by substantial

evidence that there was potential for manipulation of price or

production.11

11
Plaintiffs also assert that because Xinya, like Da Yang,
failed to respond to Commerce’s questionnaires and does not
export the subject merchandise, it should be part of the China-
wide entity rather than collapsed with Guang Ya and Zhongya.
However, as Commerce explains, it sent Da Yang a quantity and
value questionnaire but not Xinya because Xinya was not initially
identified as a potential producer/exporter by the Petitioners.
I & D Memo, Comment 5 at 52. Based on the lack of response to
the quantity and value questionnaire, Commerce inferred that Da
Yang exported subject merchandise to the United States and
therefore assigned it the China-wide rate. Id. Xinya, on the
other hand, was identified by both Guang Ya and Zhongya as a
“potential sibling” company only after the deadline for quantity
and value questionnaires had passed. Id. Because both Guang Ya
and Zhongya provided statements which implicated a Kuang sibling
as either owning or controlling Xinya, as discussed supra,
Consol. Court No. 11-00178 Page 17

III. Imposition of AFA Rate

Finally, challenging Commerce’s decision to apply AFA

to the entire collapsed entity, Plaintiffs claim that Guang Ya’s

reported consumption of aluminum billets was complete and

accurate, that any “inadvertent omissions” were rectified, and

that Commerce unreasonably refused to use the corrected data.

These arguments also miss the point.

When Commerce finds both that a respondent’s

submissions may be replaced with facts otherwise available

(“FA”), because the respondent withheld information, and that the

respondent has failed to cooperate to “the best of its ability,”

the Department may draw adverse inferences when selecting from

the FA to calculate a dumping margin, also known as adverse facts

available (“AFA”). 19 U.S.C. § 1677e(a)–(b). Commerce looks to

see if a respondent has “put forth its maximum effort to provide

Commerce with full and complete answers to all inquiries in an

investigation.” Nippon Steel Corp. v. United States, 337 F.3d

1373, 1382 (Fed. Cir. 2003). Commerce may conclude that an AFA

rate is warranted when: 1) a reasonable and responsible party

would have known that requested information was required to be

kept and maintained and 2) it failed to promptly produce the

requested information because it failed to put forth its maximum

Commerce therefore properly collapsed Xinya with Guang Ya and
Zhongya.
Consol. Court No. 11-00178 Page 18

efforts. Id. at 1382–83.

When calculating a rate for a collapsed entity,

Commerce’s practice is to apply AFA to the entire entity when one

producer within it fails to cooperate. See Bicycles from the

People’s Republic of China, 61 Fed. Reg. 19,026, Comment 8 at

19,036 (Dep’t Commerce Apr. 30, 1996) (final determination) (“If

any company fails to respond, the entire entity receives a rate

based on facts available.”); Light-Walled Rectangular Pipe and

Tube from Turkey, 69 Fed. Reg. 53,675, 53,677 (Dep’t Commerce

Sept. 2, 2004) (final determination).

Plaintiffs do not challenge Commerce’s established

practice of applying AFA to the entire collapsed entity when one

company within it has met the statutory requirements for

warranting an AFA rate. Nor do they challenge Commerce’s finding

that Xinya was not responsive to Commerce’s AD questionnaires.12

Because Xinya was properly collapsed with Guang Ya and Zhongya

and failed to provide any reliable information for Commerce to

12
Plaintiffs do assert, however, that the Guang Ya group
is entitled to its own rate separate from that of the collapsed
entity because it fully cooperated and provided corrected
information after verification. Even if Plaintiffs were able to
cite to authority supporting this position, their argument
ignores the fact that Guang Ya unilaterally, without explanation,
removed required data regarding aluminum billet consumption from
its records after submitting its questionnaire response and later
provided data that was inconsistent and could not be verified,
leaving Commerce with more than four different sets of data, none
of which could be verified. I & D Memo, Comment 5 at 48, 50–51;
Def.’s Br. at 20.
Consol. Court No. 11-00178 Page 19

use when calculating a margin, it was therefore proper for

Commerce to apply AFA to the entire collapsed entity.

CONCLUSION

Because Commerce’s decision to collapse the three

affiliated exporter/producers is supported by substantial

evidence, and because Commerce’s application of AFA was also

supported by a reasonable reading of the record, Commerce’s final

determination is AFFIRMED in all respects. Judgment will be

entered accordingly.

/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge

Dated: October 11, 2012
New York, NY