991 F.Supp.2d 1343 (CIT 2014), 13-00211, JBF RAK LLC v. United States

• Docket Nº: Court 13-00211
• Citation: 991 F.Supp.2d 1343
• Opinion Judge: BARZILAY, Senior Judge:
• Party Name: JBF RAK LLC, Plaintiff, v. UNITED STATES, Defendant, and MITSUBISHI POLYESTER FILM, INC., DUPONT TEIJIN FILMS and SKC, INC., Defendant-Intervenors
• Attorney: Court No. 13-00211 Jack D. Mlawski and John J. Galvin, Galvin & Mlawski, for Plaintiff. Stuart F. Delery, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, (Melissa M. Devine), Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Depa...
• Judge Panel: Before: Judith M. Barzilay, Senior Judge.
• Case Date: July 01, 2014
• Court: Court of International Trade

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991 F.Supp.2d 1343 (CIT 2014)

JBF RAK LLC, Plaintiff,

v.

UNITED STATES, Defendant,

and

MITSUBISHI POLYESTER FILM, INC., DUPONT TEIJIN FILMS and SKC, INC., Defendant-Intervenors

Court No. 13-00211

United States Court of International Trade

July 1, 2014

Page 1344

Commerce's final results are sustained.

Jack D. Mlawski and John J. Galvin, Galvin & Mlawski, for Plaintiff.

Stuart F. Delery, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, (Melissa M. Devine), Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of counsel, Devin S. Sikes, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant.

Ronald I. Meltzer, Patrick J McLain, David M. Horn, and Jeffrey I. Kessler, Wilmer Cutler Pickering Hale and Dorr LLP, for Defendant-Intervenors.

Before: Judith M. Barzilay, Senior Judge.

OPINION

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BARZILAY, Senior Judge:

Before the court is Plaintiff JBF RAK LLC's (" JBF RAK" ) motion for judgment on the agency record under USCIT Rule 56.2, challenging Defendant U.S. Department of Commerce's (" Commerce" ) final results of the administrative review covering polyethylene terephthalate film (" PET Film" ) from United Arab Emirates for the November 1, 2010 through October 31,

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2011 period of review. See Polyethylene Terephthalate Film, Sheet, and Strip From the United Arab Emirates, 78 Fed. Reg. 29,700 (Dep't Commerce May 21, 2013) (final results) (" Final Results " ); Issues and Decision Memorandum for Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, A-520-803 (May 13, 2013) (" Issues and Decision Memorandum " ), available at http://enforcement.trade.gov/frn/summary/uae/2013-12086-1.pdf (last visited July 1, 2014). Specifically, JBF RAK claims that (1) Commerce unlawfully applied its targeted dumping methodology in the context of an administrative review; (2) Commerce improperly considered petitioners' allegation of targeted dumping; (3) Commerce unlawfully issued a post-preliminary determination; (4) Commerce failed to consider certain facts about JBF RAK's pricing practices in its targeted dumping determination; (5) Commerce's improperly applied its model matching methodology; and (6) Commerce unlawfully applied its 15-Day Rule for issuing liquidation instructions. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and (i). For the reasons set forth below, the court sustains Commerce's Final Results.

I. STANDARD OF REVIEW

When reviewing Commerce's antidumping determinations under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c), the U.S. Court of International Trade sustains Commerce's determinations, findings, or conclusions 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). More specifically, when reviewing agency determinations, findings, or conclusions for substantial evidence, the court assesses whether the agency action is " reasonable and supported by the record as a whole." Nippon Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed. Cir. 2006) (internal quotations and citation omitted). Substantial evidence has been described as " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." DuPont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence has also been described as " something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (" Chevron " ), governs judicial review of Commerce's interpretation of the antidumping statute. See United States v. Eurodif S.A., 555 U.S. 305, 316, 129 S.Ct. 878, 172 L.Ed.2d 679 (2009) (Commerce's " interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous." ).

II. BACKGROUND

JBF RAK is a manufacturer and exporter of PET Film from the United Arab Emirates. JBF RAK and other interested parties requested that Commerce conduct an administrative review of the antidumping duty order on PET Film covering the November 1, 2010 through October 31, 2011 period of review. After Commerce initiated the review, but before publishing the preliminary results, petitioners filed an allegation of targeted dumping against

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JBF RAK. Commerce published its preliminary results and assigned JBF RAK a dumping margin of 5.31% using its average-to-average comparison methodology. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, 77 Fed. Reg. 73,010 (Dep't Commerce Dec. 7, 2012) (preliminary results) (" Preliminary Results " ). Commerce, though, indicated that it did not have sufficient time to analyze the targeted dumping issue and therefore addressed it later in the proceeding.

Commerce published a post-preliminary determination addressing the issue of targeted dumping on March 8, 2013. See 2010-2011 Administrative Review of the Antidumping Duty Order on Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates: Post-Preliminary Analysis and Calculation Memorandum of JBF RAK LLC, A-520-803 (Dep't Commerce Mar. 8, 2013) (" Post-Preliminary Determination " ). Commerce preliminarily concluded that JBF RAK had engaged in targeted dumping and assigned a revised dumping margin of 9.80% using its average-to-transaction comparison methodology. Commerce then invited interested parties to comment on its targeted dumping analysis. In the Final Results, Commerce continued to apply the average-to-transaction comparison methodology and assigned JBF RAK a dumping margin of 9.80%. See Final Results, 78 Fed. Reg. 29,700.

III. DISCUSSION

A. Targeted Dumping in Administrative Reviews

JBF RAK argues that there is no statutory authority for Commerce to consider an allegation of targeted dumping in the context of an administrative review. JBF RAK Br. 6. It claims that 19 U.S.C. § 1677f-1(d) authorizes Commerce to apply its average-to-transaction comparison method in the context of an investigation, but does not authorize Commerce to apply that methodology in the context of a review. JBF RAK Br. 7-8. JBF RAK claims that Commerce's application of the average-to-transaction comparison methodology in the context of a review violates the statute. JBF RAK Br. 8-9. The court disagrees.

In an administrative review, the statute requires Commerce to review and determine the amount of any antidumping duty, 19 U.S.C. § 1675(a)(1)(B), by calculating the normal value and export price (or constructed export price) of each entry of subject merchandise, and the dumping margin of each such entry. § 1675(a)(2)(A). The term " dumping margin" is defined by statute as " the amount by which normal value exceeds the export price or constructed export price of the subject merchandise. § 1677(35)(A). Section 1677f-1(d), in turn, establishes three different methods by which Commerce may compare normal value with export price to determine whether merchandise is being sold for less than fair value ( i.e., dumping). See also H.R. Doc. No. 103-316 vol. I (1994), reprinted in 19 U.S.C.C.A.N. 3373 (" SAA" ). Although the statute places some restrictions on Commerce's selection of a particular methodology in investigations, see § 1677f-1(d)(1), it is silent with respect to administrative reviews. See § 1677f-1(d)(2). Commerce, therefore, has exercised its gap-filling discretion by applying a comparison methodology in reviews that parallels the methodology used in investigations. See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings, 77 Fed. Reg. 8,101, 8,102 (Dep't of Commerce Feb. 14, 2012). Commerce

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promulgated a regulation that codifies its approach in both investigations and reviews. See 19 C.F.R. § 351.414. It states that in " an investigation or review, the Secretary will use the average-to-average method unless the Secretary determines another method is appropriate in a particular case." Id. § 351.414(c)(1). This gives Commerce discretion to apply its average-to-transaction methodology when the facts of a particular case justify using it rather than the average-to-average methodology.

Contrary to JBF RAK's claims, Commerce's decision to apply its average-to-transaction comparison methodology in the context of an administrative review is reasonable. As Commerce explained,

The silence of the statute with regard to application of an alternative comparison methodology in administrative reviews does not preclude the Department from applying such a practice. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has stated that courts " must, as we do, defer to Commerce's reasonable construction of its governing statute where Congress 'leaves a gap in the construction of the statute that the administrative agency is explicitly authorized to fill or implicitly delegates legislative authority, as evidenced by the agency's generally conferred authority and other statutory circumstances.'" Further, the Court of International Trade has stated that this " silence has been interpreted as 'an invitation' for an agency administering unfair trade law to 'perform its duties in the way it believes most suitable' and courts will uphold these...