Gold East Paper (Jiangsu) Co. Ltd. v. United States, 042215 USCIT, 10-00371

Docket Nº:10-00371
Opinion Judge:R. Kenton Musgrave, Senior Judge
Party Name:GOLD EAST PAPER (JIANGSU) CO., LTD., NINGBO ZHONGHUA PAPER CO., LTD., and GLOBAL PAPER SOLUTIONS, Plaintiffs, v. UNITED STATES, Defendant, and BUREAU OF FAIR TRADE FOR IMPORTS & EXPORTS, MINISTRY OF COMMERCE, PEOPLE'S REPUBLIC OF CHINA, Plaintiff-Intervenor, and APPLETON COATED LLC, NEWPAGE CORP., S.D. WARREN COMPANY d/b/a SAPPI FINE PAPER NORTH AM
Attorney:Daniel L. Porter and Ross E. Bidlingmaier, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington DC, for the plaintiffs and plaintiff-intervenor. Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, for defendant. Wit...
Judge Panel:Before: R. Kenton Musgrave, Senior Judge Consol.
Case Date:April 22, 2015
Court:Court of Appeals of International Trade
 
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GOLD EAST PAPER (JIANGSU) CO., LTD., NINGBO ZHONGHUA PAPER CO., LTD., and GLOBAL PAPER SOLUTIONS, Plaintiffs,

and

BUREAU OF FAIR TRADE FOR IMPORTS & EXPORTS, MINISTRY OF COMMERCE, PEOPLE'S REPUBLIC OF CHINA, Plaintiff-Intervenor,

v.

UNITED STATES, Defendant,

and

APPLETON COATED LLC, NEWPAGE CORP., S.D. WARREN COMPANY d/b/a SAPPI FINE PAPER NORTH AMERICA, and UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, Defendant-Intervenors.

No. 10-00371

Slip Op. 15 - 37

Court of Appeals of International Trade

April 22, 2015

[Remanding second results of administrative redetermination on investigation of sales at less than fair value of certain coated paper from the People's Republic of China.]

Daniel L. Porter and Ross E. Bidlingmaier, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington DC, for the plaintiffs and plaintiff-intervenor.

Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, for defendant. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of Counsel on the brief was Mykhaylo A. Gryzlov, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce.

Terence P. Stewart and William A. Fennell, Stewart and Stewart, of Washington, DC, and Gilbert B. Kaplan, Christopher T. Cloutier, and Daniel L. Schneiderman,, King & Spalding, LLP, of Washington DC, for the defendant-intervenors.

Before: R. Kenton Musgrave, Senior Judge Consol.

OPINION AND ORDER

R. Kenton Musgrave, Senior Judge

This matter, most lately embodied in the second Final Results of Redetermination Pursuant to Court Remand ("RR2") concerning the antidumping duty investigation into Certain Coated Paper from the PRC, 1 must be remanded a third time due to arguments over (1) the use of market economy purchase prices for certain inputs procured by/for the plaintiffs (herein "APP-China") from the Kingdom of Thailand ("Thailand") and (2) the targeted dumping methodology utilized on second remand that persuade further remand is appropriate. Familiarity with the prior opinions on the case is presumed, but a brief background is provided below. See 37 CIT ___, 918 F.Supp.2d 1317 (2013) ("Gold East I") and 38 CIT __, 991 F.Supp.2d 1357 (2014) ("Gold East II").

Background

In the Final Determination, the U.S. Department of Commerce, International Trade Administration ("Commerce") averred that pursuant to its practice it disregarded the market economy purchase prices ("MEPs") for inputs that originated from Thailand and the Republic of Korea ("Korea") that APP-China submitted to account for its production. See IDM at cmt. 7. Cf. 19 U.S.C. §1677b(c)(1) with 19 C.F.R. 351.408(c)(1). After considering APP-China's challenge thereto on the basis of relevant precedent2 and legislative history3 in comparison with the relevant regulation, Gold East I concluded that the record lacked "positive evidence" to support the determination, as articulated, of a belief or suspicion that those inputs had been distorted by subsidies, and that issue was remanded with instruction either "to reopen the record and make particularized findings in support of [the] decision to ignore the Thai and Korean price data . . . or to reverse [the] decision not to use such price data". 37 CIT at ___, 918 F.Supp.2d at 1324.

Commerce also requested remand in order to examine its targeted dumping calculation program and, if appropriate, correct certain alleged programming errors. The request was endorsed, but the court also concluded that a relevant targeted dumping regulation had not been properly withdrawn through the notice and comment required under the Administrative Procedure Act, 5 U.S.C. §500, et sequentia. That regulation is no longer in effect, but during the investigation it had provided, inter alia, that the application of the "remedy" of targeted dumping should "normally" be limited to those sales that "constitute targeted dumping." See 19 C.F.R. §351.414(f)(2) (2008). Consistent therewith, therefore, Gold East I opined that the targeted dumping remedy had to be limited to targeted sales or adequate explanation provided as to why the relevant sales are not "normal". 37 CIT at ___, 918 F.Supp.2d at 1328.

In Commerce's first final results of redetermination ("RR1"), it complied with the opinion on those issues under protest. See generally RR1. The first results incorporated the prices of APP-China's inputs from Thailand and Korea and, apparently, limited the targeted dumping "remedy" in accordance with Gold East I, but did not "appl[y]" it. Cf. RR1 at 17 with id. at 18 (referring parties to a further discussion of the "proprietary nature of this analysis" in a certain memorandum dated concurrently with RR1). Those results relied on average to average ("A-A") methodology instead of average to transaction ("A-T") methodology. Considering those results and the parties arguments thereon, Gold East II reiterated why the matter had been remanded and, after further analysis of Commerce's articulated position on the matter, remanded again for a fuller analysis either on the record as it stood or as may be supplemented on remand if necessary. Gold East II, 38 CIT at ___, 991 F.Supp.2d at 1269.4

On second remand, Commerce reopened the record, and the petitioners and APP-China filed submissions with new factual information pertaining to subsidization. Considering them, Commerce again determined to use APP-China's claimed prices for inputs from Thailand and to reject the prices for inputs from Korea in the calculation of the dumping margin. Commerce also continued to apply the A-A targeted dumping methodology to all sales to calculate APP-China's dumping margin. The second final remand results ("RR2") did not substantively change from the draft thereof, but they provide further explanation of the determinations made in the calculation of a weighted-average dumping margin for APP-China of zero percent.

APP-China argues the second remand results should be sustained. The petitioners agree with them in part, but they continue to contest Commerce's determination to use market economy prices ("MEPs") for inputs purchased by APP-China from Thailand and the determination not to counteract targeted dumping. For the following reasons, the matter must be remanded again.

Discussion

I. Administrative Finality and Information on the Record

On second remand, Commerce took the position that it was appropriate to disregard any information submitted for the record that "only became available" subsequent to the determination of the original investigation.5 RR2 at 22.

Disregard of information that "only became available" subsequent to the original investigation in the sense of "only came into being" through creation subsequent to the original investigation accords respect for that point at which an agency's determination may reasonably be concluded "final" in the administrative sense. See RR2 at 7 ("[o]therwise, the Department's decisions would not have administrative 'finality' and would be subject to newly-developed documents and facts with the passage of time, when litigation is pursued"). Cf. Essar Steel Ltd. v. United States, 678 F.3d 1268 (Fed. Cir. 2012) ("Essar") (generally improper for courts to "require" reopening the record). Commerce's disregard of information that only came into being subsequent to the original investigation is appropriate, but the reader should not confuse or conflate a "final" decision thereon with the applicability of law or methodology on remand. See infra.

II. Treatment of the Certain Input Purchases

A. MEP Inputs from Korea

Regarding the relevant MEP inputs from Korea, Commerce found that 2009 CORE Review6 provides evidence that Korea maintained at least one countervailable generally-available, non-industry specific export subsidy program and that it would have been against any market economy supplier's interest in Korea not to take advantage of the subsidy. Gold East I characterized the mere reference to 2009 CORE Review in the Final Determination's issues and decision memorandum as "insufficient" evidence of record to justify disregard of APP-China's MEP inputs. Gold East I, 37 CIT at ___, 918 F.Supp.2d at 1324. See also, e.g., Gold East II, 38 CIT at ___, 991 F.Supp.2d at 1362. At this stage, Commerce's particularized explication of 2009 CORE Review satisfies the three prongs of Fuyao II and provides substantial evidentiary support for disregarding the relevant MEP inputs from Korea, which no party contests. See RR2 at 11-14.

B. MEP Inputs from Thailand

1. Thailand's Investment Promotion Act of 1977 ("IPA")

Regarding the issue of MEPs for certain inputs from Thailand, the petitioners called Commerce's attention to several cases of countervailed sections of Thailand's Investment Promotion Act ("IPA") from 1989 to 2001, including "countervailable" export subsidy benefits under the IPA in 1995 Pocket Lighters investigation.7 The petitioners argued that the record evidence demonstrated that the IPA was still in effect during the POI, that the suppliers were eligible for and thus likely received benefits under the IPA, and that it would have been unnatural for the suppliers not to have taken advantage of the subsidies under the IPA because of the competitive nature of market economy countries and the supplier's demonstrative interest in receiving available subsidies by applying for promoted status.

Commerce disagreed, explaining that although it had countervailed programs under sections of the IPA as...

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