Consol. v. United States

• Citation: 715 F.Supp.2d 1337
• Decision Date: 04 August 2010
• Docket Number: Slip Op. 10-84.,Court No. 08-00285.
• Parties: GPX INTERNATIONAL TIRE CORPORATION and Hebei Starbright Tire Co., Ltd., Plaintiffs, and Tianjin United Tire & Rubber International, Consolidated Plaintiff, v. UNITED STATES, Defendant, and Bridgestone Americas, Inc., Bridgestone Americas Tire Operations, LLC, Titan Tire Corporation, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Defendant-Intervenors.
• Court: U.S. Court of International Trade

715 F.Supp.2d 1337

GPX INTERNATIONAL TIRE CORPORATION and Hebei Starbright Tire Co., Ltd., Plaintiffs,andTianjin United Tire & Rubber International, Consolidated Plaintiff,

v. UNITED STATES, Defendant,andBridgestone Americas, Inc., Bridgestone Americas Tire Operations, LLC, Titan Tire Corporation, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Defendant-Intervenors.

Slip Op. 10-84. Court No. 08-00285.

United States Court ofInternational Trade.

Aug. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Winston & Strawn LLP (Daniel L. Porter, James P. Durling, Matthew P. McCullough, Ross E. Bidlingmaier, and William H. Barringer), Washington, DC, for the plaintiffs.

Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP (Francis J. Sailer, Andrew T. Schutz, and Mark E. Pardo), New York City and Greenberg Traurig, LLP (Philippe M. Bruno and Rosa S. Jeong), Washington, DC, for the consolidated plaintiff.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael D. Panzera, John J. Todor and Loren M. Preheim); Office of the Chief Counsel for Import Administration, U.S. Department of Commerce (Matthew D. Walden and Daniel J. Calhoun), of counsel, for the defendant.

King & Spalding, LLP (Joseph W. Dorn, Christopher T. Cloutier, Daniel L. Schneiderman, J. Michael Taylor, Jeffrey M. Telep, Kevin M. Dinan, and Prentiss L. Smith), Washington, DC, for defendant-intervenors Bridgestone Americas, Inc. and Bridgestone Americas Tire Operations, LLC.

Stewart and Stewart (Geert M. De Prest, Elizabeth A. Argenti, Elizabeth J. Drake, Eric P. Salonen, Terence P. Stewart, Wesley K. Caine, and William A. Fennell), Washington, DC, for defendant-intervenors Titan Tire Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.

OPINION AND ORDER

RESTANI, Chief Judge:

As the court has previously explained, these consolidated actions challenge the Department of Commerce's (“Commerce”) final determinations rendered in concurrent antidumping duty (“AD”) and countervailing duty (“CVD”) investigations of certain pneumatic off-the-road (“OTR”) tires from the People's Republic of China (“PRC”). Motions for judgment on the agency record were filed by GPX International Tire Corporation (“GPX”) and Hebei Starbright Tire Co., Ltd. (“Starbright”), Titan Tire Corporation and the United Steel, Paper and Forestry, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (collectively, “Titan”), Bridgestone Americas, Inc. and Bridgestone America Tire Operations, LLC (collectively, “Bridgestone”), and Tianjin United Tire & Rubber International Co., Ltd. (“TUTRIC”).

For the reasons stated below, the court finds that Commerce failed to comply with the court's remand instructions. Commerce must forego the imposition of the countervailing duty law on the nonmarket economy (“NME”) products before the court because its actions on remand clearly demonstrate its inability, at this time, to use improved methodologies to determine whether, and to what degree double counting occurs when NME antidumping remedies are imposed on the same good, or to otherwise comply with the unfair trade statutes in this regard.

Additionally, GPX, Starbright, Titan, and Bridgestone have submitted motions for judgment on the agency record on other AD issues. ¹ In its previous opinion, the court declined to rule on the merits of the AD issues raised in the parties' briefs to the extent that they did not relate to the CVD/NME AD coordination issue. See GPX Int'l Tire Corp. v. United States, 645 F.Supp.2d 1231, 1235 n. 1 (CIT 2009). For the reasons stated below, the court now denies the remainder of the motions of all parties relating to AD issues, except to the extent they are consistent with the Government's request for a voluntary remand on one issue, which request is granted. TUTRIC's motion for CVD treatment consistent with that of GPX and Starbright is granted.

BACKGROUND

The facts of this case have been well documented in the court's previous opinion. See GPX, 645 F.Supp.2d at 1235-36. The court presumes familiarity with that decision, but briefly summarizes the facts relevant to this opinion.

In August 2007, Commerce initiated AD and CVD investigations for certain pneumatic OTR from the PRC. See Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Initiation of Countervailing Duty Investigation, 72 Fed.Reg. 44,122 (Dep't Commerce Aug. 7, 2007); Initiation of Antidumping Duty Investigation: Certain New Pneumatic Off-the-Road Tires from the People's Republic of China, 72 Fed.Reg. 43,591 (Dep't Commerce Aug. 6, 2007). Commerce selected Starbright ² and TUTRIC, Chinese producers/exporters of the subject merchandise, as two of the mandatory respondents for both investigations. ³ See Final AD Determination, 73 Fed.Reg. At 51,625; Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Negative Determination of Critical Circumstances, 73 Fed.Reg. 40,480, 40,483 (Dep't Commerce July 15, 2008) (“ Final CVD Determination”). In its final determinations, Commerce calculated CVD margins of 14% for Starbright, and 6.85% for TUTRIC, Final CVD Determination, 73 Fed.Reg. at 40,483, and also utilized NME methodologies to calculate AD margins of 29.93% for Starbright, and 8.44% for TUTRIC, Final AD Determination, 73 Fed.Reg. at 51,625.

In September 2008, GPX and Starbright filed complaints challenging both the CVD and AD determinations on various grounds. In October 2008, Titan and Bridgestone filed complaints contesting these determinations as well. TUTRIC, however, filed a complaint in November 2008, challenging only the CVD determination. The court consolidated these actions (Order (Jan. 16, 2009) (Docket No. 161)), and shortly thereafter, GPX and Starbright, Titan, Bridgestone, and TUTRIC filed motions for judgment on the agency record under USCIT Rule 56.2. Pursuant to court order, the motions for judgment on the agency record were divided into three key issues: (1) CVD applicability and NME AD coordination issues; (2) all other AD issues; and (3) all other CVD issues. (Order (Jan. 16, 2009) (Docket No. 162).)

In GPX, the court held “that Commerce is not barred by statutory language from applying the CVD law to imports from the PRC, but that Commerce's ... interpretation of the NME AD statute in relation to the CVD statute ... was unreasonable.” 645 F.Supp.2d at 1234. In addition, the court concluded that Commerce's failure to address GPX and Starbright's request for market-oriented enterprise (“MOE”) treatment and its adoption of a December 11, 2001, cut-off date for identifying and measuring subsidies in the PRC was arbitrary and unsupported by substantial evidence. Id. at 1243-50. The court remanded this matter to Commerce, instructing it to “adopt additional policies and procedures for its NME AD and CVD methodologies to account for the imposition of the CVD law to products from an NME country and avoid to the extent possible double counting of duties” if it “is to apply CVD remedies where it also utilizes NME AD methodology,” id. at 1234-35, or to exercise its “discretion not to impose CVDs as long as it is using the NME AD methodology,” id. at 1243. The court also instructed Commerce to “address GPX's request for MOE status,” id. at 1246, and “to determine the existence of countervailable subsidies based on the specific facts for each subsidy,” id. at 1250.

On remand, Commerce “decided to continue to impose CVD remedies on imports of certain new pneumatic [OTR tires] from the PRC, but ... offset[ ] those CVDs against GPX/Starbright's calculated AD cash deposit rate.” Final Results of Redetermination Pursuant to Remand 2 (Dep't Commerce Apr. 26, 2010) (Docket No. 292) (“ Remand Results”). Commerce next considered each of the countervailable subsidies individually, id. at 20-40, rather than relying on a universal cut-off date, but determined that the CVD margins for Starbright and TUTRIC remained unchanged, id. at 59. Commerce also considered whether it should treat Starbright as an MOE, and ultimately decided that such treatment was inappropriate. Id. at 12-20. Commerce then offset Starbright's AD margin of 29.93% by its CVD margin of 14.00%, resulting in a cash deposit rate of 15.93%. Id. at 59. Commerce, however, did not make an offset to TUTRIC's AD margin because “TUTRIC did not include double remedies as a cause of action in its Complaint, request relief on that issue, or address the issue in any brief that it filed with the Court.” Id. at 53. GPX and Starbright, TUTRIC, Bridgestone, and Titan object to these conclusions on various grounds. ( See Resp't Pls.' Comments on Commerce's Final Redetermination Pursuant to Remand (“GPX's Comments”); TUTRIC's Comments Regarding the Department's First Remand Redetermination (“TUTRIC's Comments”); Bridgestone's Obj. Concerning Final Results of Redetermination Pursuant to Remand; (A) Obj. of Titan Tire Corp. to the Department of Commerce's Remand Redetermination, & (B) Titan's Reasons for Why this Court Should Not Remand this Case Again.) Additionally, as noted in GPX, several AD and CVD issues, which were raised in the parties' original briefs, remain before the court. See 645 F.Supp.2d at 1235 n. 1. ⁴

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold Commerce's final determinations in AD and CVD investigations unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Commerce's...