997 F.Supp.2d 1338 (CIT 2014), 12-00088, Dupont Teijin Films v. United States

Docket Nº:12-00088
Citation:997 F.Supp.2d 1338
Opinion Judge:Jane A. Restani, Judge
Party Name:DUPONT TEIJIN FILMS, MITSUBISHI POLYESTER FILM, INC., SKC, INC., and TORAY PLASTICS (AMERICA), INC., Plaintiffs, v. UNITED STATES, Defendant, TIANJIN WANHUA CO., LTD., FUWEI FILMS (SHANDONG) CO., LTD., and SICHUAN DONGFANG INSULATING MATERIAL CO., LTD., Defendant-Intervenors
Attorney:No. 12-00088 Jeffrey I. Kessler, Ronald I. Meltzer, Patrick J. McLain, and David M. Horn, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, of Washington, DC, for plaintiffs. David F. D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington...
Case Date:July 22, 2014
Court:Court of International Trade

Page 1338

997 F.Supp.2d 1338 (CIT 2014)

DUPONT TEIJIN FILMS, MITSUBISHI POLYESTER FILM, INC., SKC, INC., and TORAY PLASTICS (AMERICA), INC., Plaintiffs,

v.

UNITED STATES, Defendant,

TIANJIN WANHUA CO., LTD., FUWEI FILMS (SHANDONG) CO., LTD., and SICHUAN DONGFANG INSULATING MATERIAL CO., LTD., Defendant-Intervenors

No. 12-00088

United States Court of International Trade

July 22, 2014

Page 1339

Commerce's second redetermination regarding calculation of normal value in non-market economy antidumping duty case sustained.

Jeffrey I. Kessler, Ronald I. Meltzer, Patrick J. McLain, and David M. Horn, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, of Washington, DC, for plaintiffs.

David F. D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington D.C., for defendant. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Whitney M. Rolig, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington D.C.

David J. Craven and Saichang Xu, Riggle and Craven, of Chicago, IL, for defendant-intervenors.

OPINION

Page 1340

Jane A. Restani, Judge

This matter is before the court following a remand to the United States Department of Commerce (" Commerce" ) in Dupont Teijin Films v. United States, 931 F.Supp.2d 1297 (CIT 2013) (" Dupont Teijin Films II" ). Plaintiffs Mitsubishi Polyester Film, Inc. and SKC, Inc. (collectively, " Plaintiffs" ) and Defendant-Intervenors Tianjin Wanhua Co., Ltd., Sichuan Dongfang Insulating Material Co., Ltd., and Fuwei Films (Shandong) Co., Ltd. (collectively, " Defendant-Intervenors" ) challenge various aspects of the Final Results of Redetermination Pursuant to Court Order, ECF No. 70-1 (" Second Remand Results" ). For the reasons set forth below, Commerce's Second Remand Results are sustained.

INTRODUCTION

The court assumes familiarity with the facts of this case as set out in the previous opinion. See generally Dupont Teijin Films II, 931 F.Supp.2d at 1299-1307. For ease of understanding, however, a brief summary is provided below.

This case involves challenges to Commerce's final results of redetermination in the second administrative review of the antidumping duty order of polyethylene terephthalate film, sheet, and strip (" PET film" ) from the People's Republic of China (" PRC" ). See Polyethylene Terephthalate Film, Sheet, and Strip from the People's Republic of China: Final Results of the 2009-2010 Antidumping Duty Administrative Review of the Antidumping Duty Order, 77 Fed. Reg. 14,493 (Dep't Commerce Mar. 12, 2012). Initially, Commerce calculated the dumping margins using India as the primary surrogate country. Id. at 14,494. Commerce calculated weighted-average dumping margins of 8.42% for Tianjin Wanhua Co., Ltd, 10.87% for Sichuan Dongfang Insulating Material Co., Ltd., and 8.48% for both Fuwei Films (Shandong) Co., Ltd. and Shaoxing Xiangyu Green Packing Co., Ltd. Id.

In its previous order in this case, the court instructed Commerce to reconsider its surrogate country selection using 2009 Gross National Income (" GNI" ) data. Dupont Teijin Films II, 931 F.Supp.2d at 1307. Commerce ignored 2009 GNI data indicating that India was no longer economically comparable to the PRC, despite the data being on the record, claiming, very belatedly, that the data were not filed early enough in the proceedings. Id. at 1299, 1301, 1307. The court held that Commerce must consider record evidence and that the parties were not given a meaningful opportunity to comment on economic comparability. Id. at 1305.

On remand, Commerce utilized the 2009 GNI data to create a new list of potential surrogate countries and selected South Africa as the primary surrogate country to use in this administrative review because South Africa is at a similar level of economic development as the PRC, it is a significant producer of comparable merchandise, and there were reliable data that

Page 1341

could be used to value the factors of production. Second Remand Results at 1-2.1 The change in the primary surrogate country resulted in higher margins of 19.49% for Tianjin Wanhua Co., Ltd, 14.25% for Sichuan Dongfang Insulating Material Co., Ltd., and 19.35% for both Fuwei Films (Shandong) Co., Ltd. and Shaoxing Xiangyu Green Packing Co., Ltd. Id. at 34.

Plaintiffs challenge Commerce's decision to use South Africa as the primary surrogate country for calculating the normal value of PET film, contending that South Africa is not a significant producer of comparable merchandise and that Commerce should instead use data from Thailand and/or Indonesia. Pls.' Cmts. on Commerce's Second Remand Determination 1-2, ECF No. 79 (" Pls.' Br." ). Plaintiffs argue that South Africa is not a significant producer of comparable merchandise due to its relatively low volume of exports under Harmonized Tariff Schedule (" HTS" ) 3920.62, which covers PET film.2 Id. at 3-4. Additionally, Plaintiffs contend that Commerce acted unreasonably in relying on the financial statement of South African producer Astrapak to determine that South Africa is a significant producer of comparable merchandise. Pls.' Br. 5-8.

Defendant-Intervenors agree with Commerce's rejection of Thailand as the primary surrogate country.3 Cmts. of Def.-Intvnrs. on Second Remand Results 2, ECF No. 77 (" Def.-Intvnrs.' Br." ). Defendant-Intervenors also agree that Commerce properly selected South Africa as the primary surrogate country, but they argue that Commerce failed to use all of the South African financial statements on the record in calculating the financial ratios. Id. at 3-4.

Defendant United States (" the government" ) responds that Commerce reasonably selected South Africa as the primary surrogate country and calculated the surrogate financial ratios in accordance with its policies and the law. Def.'s Resp. to Pls.' Cmts. Regarding the Remand Redetermination 4, ECF No. 82 (" Def.'s Br." ).

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012). The court will not uphold any determination by Commerce that is " unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).

Page 1342

DISCUSSION

I. South Africa as the Surrogate Country

A. Background

Because the PRC is considered...

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