Assan Aluminyum Sanayi Ve Ticaret A.S. v. United States
| Decision Date | 01 March 2023 |
| Docket Number | 21-00246,Slip Op. 23-26 |
| Parties | ASSAN ALUMINYUM SANAYI VE TICARET A.S., Plaintiff and Consolidated Defendant-Intervenor, v. UNITED STATES, Defendant, and ALUMINUM ASSOCIATION COMMON ALLOY ALUMINUM SHEET TRADE ENFORCEMENT WORKING GROUP AND ITS INDIVIDUAL MEMBERS, ET AL., Defendant-Intervenors and Consolidated Plaintiffs. |
| Court | U.S. Court of International Trade |
Leah Scarpelli, Arent Fox LLP, of Washington, D.C., argued for Plaintiff and Consolidated Defendant-Intervenor Assan Aluminyum Sanayi Ve Ticaret A.S. With her on the briefs were Matthew M. Nolan and Yun Gao.
Kyle S. Beckrich, Trial Attorney, Commercial Litigation Branch Civil Division, U.S. Department
of Justice, of Washington, D.C., argued for Defendant United States. With him on the briefs were Brian M Boynton, Principal Deputy Assistant Attorney General Patricia M. McCarthy, Director, and Reginald T Blades, Jr., Assistant Director. Of counsel on the briefs were Natalie Marie Zink and Ashlande Gelin, Attorneys, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Joshua R. Morey, Kelley Drye &Warren LLP, of Washington, D.C., argued for Defendant Intervenors and Consolidated Plaintiffs Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and its Individual Members, et al. With him on the brief were John Herrmann, Paul C. Rosenthal, R. Alan Luberda, and Julia A. Kuelzow.
Before: Gary S. Katzmann, Judge
This is an appeal from the U.S. Department of Commerce ("Commerce")'s final affirmative determination in the sales at less-than-fair value ("LTFV") investigation of Common Alloy Aluminum Sheet ("CAAS") from Turkey. See Common Alloy Aluminum Sheet from Turkey: Final Affirmative Determination of Sales at Less Than Fair Value, 86 Fed.Reg. 13,326 (Dep't Com. Mar. 8, 2021), P.R. 358 ("Final Determination"). Before the court, Petitioner[1] the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group &Individual Members ("the Association" or "Consolidated Plaintiffs" or "Defendant-Intervenors") and Mandatory Respondent[2] Assan Aluminyum Sanayi ve Ticaret A.S. ("Assan" or "Plaintiff" or "Consolidated Defendant-Intervenor") challenge various adjustments that Commerce made -- or declined to make -- to the values Commerce uses to determine whether foreign goods are being introduced into the United States at less than fair value to the detriment of domestic producers and in violation of American laws designed to promote fair trade. It is Commerce's practice to adjust the examined values to account for, among other things, U.S. import duties and other shipping costs paid to bring the investigated product into the United States, import duties rebated or not collected by the country of origin upon exportation of the product, and discounts or rebates given on the product in the home market.
Because, as established herein, the court concludes that only certain of Commerce's adjustment choices were supported by substantial evidence and otherwise in accordance with law -- namely, Commerce's treatment of Assan's shipping costs and home market rebates -- the court sustains Commerce's Final Determination in part and remands it in part for further consideration consistent with this opinion.
The court begins by setting out the overarching legal, factual and procedural background necessary to contextualize the challenges posed by Plaintiff and Consolidated Plaintiffs. The court will expand upon certain legal, factual, and procedural elements as relevant and necessary in the forthcoming discussion of specific issues, infra pp. 12-59.
Under the Tariff Act of 1930 ("the Act"), Congress empowered Commerce to investigate and, if appropriate, impose duties to counteract dumping. Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046 (Fed. Cir. 2012). Dumping occurs when a foreign firm sells an identified product ("subject merchandise") for "less than fair value" in the United States, meaning that the product is sold at an export price -- or, as in the case at bar, a constructed export price -- that is lower than the product's normal value. See Saha Thai Steel Pipe (Pub.) Co. v. United States, 635 F.3d 1335, 1338 (Fed. Cir. 2011). "[N]ormal value is generally the 'price at which the foreign . . . product is first sold . . . for consumption in the . . . country [of export],'" reflecting the "home market price," Maverick Tube Corp. v. Toscelik Profil, 861 F.3d 1269, 1271 (Fed. Cir. 2017) ("Maverick Tube III") (quoting 19 U.S.C. § 1677b(a)(1)(B)(i)); while the constructed export price is "the price at which the subject merchandise is first sold (or agreed to be sold) in the United States . . . to a purchaser not affiliated with the producer or exporter," reflecting the "U.S. sales price," 19 U.S.C. § 1677a(b).
Where Commerce determines that goods are being, or are likely to be, sold at less than fair value,[3] the agency imposes antidumping duties on the foreign merchandise. See 19 U.S.C. § 1673. Commerce determines the appropriate amount of antidumping duties by calculating the "dumping margin," which is the amount by which the normal value exceeds the export or constructed export price. See 19 U.S.C. § 1677(35)(A). In completing this calculation, Commerce seeks to compare prices "at a common point in the chain of commerce." APEX Exports v. United States, 777 F.3d 1373, 1374 (Fed. Cir. 2015).
Achieving "a common point in the chain of commerce," id., requires Commerce to make certain adjustments to the prices representing normal value and export/constructed export price, see, e.g., 19 U.S.C. § 1677b;[4] id. § 1677a;[5] 19 C.F.R. § 351.401(c). As described in greater detail, infra pp. 12-59, such adjustments can include, inter alia, increasing constructed export price to reflect "duty drawbacks," or import duties rebated and/or not collected by the country of origin upon exportation of subject merchandise, see 19 U.S.C. § 1677a(c)(1)(B), decreasing constructed export price to account for U.S. import duties and other costs paid to bring subject merchandise into the United States, see id. § 1677a(c)(2)(A), and decreasing normal value to reflect discounts or rebates given on subject merchandise in the home market, see 19 C.F.R. § 351.102(b)(38).
Because Commerce identifies dumping by assessing whether a foreign producer/exporter is selling its products in the United States at less than normal value, as a general rule, it is in the Petitioner's interest[6] -- who is seeking imposition of antidumping duties -- if the assessed U.S. sales price (i.e., constructed export price) is low, and the home market price (i.e., normal value) is high. By contrast, it is generally in the Respondent's interest[7] -- who is seeking to avoid the imposition of antidumping duties -- if the assessed U.S. sales price (i.e., constructed export price) is high, and the home market price (i.e., normal value) is low. In light of these divergent interests, Commerce is wary of attempts by parties to manipulate dumping margins, particularly through so-called "after-the-fact" or "post-sale" adjustments.[8] "The interested party that is in possession of the relevant information has the burden of establishing to the satisfaction of the Secretary the amount and nature of a particular adjustment." 19 C.F.R. § 351.401(b)(1).
On March 9, 2020, the Association filed an antidumping petition[9] concerning imports of
Common Alloy Aluminum Sheet ("CAAS") from Turkey. See Mem. to DAS for Operations Pertaining to Interested Parties Resp't Selection at 1 (Apr. 29, 2020), C.R. 15, P.R. 49 ("Mem. to DAS"). In response, on March 30, 2020, Commerce initiated a LTFV investigation of CAAS from Turkey covering the period of January 1, 2019 through December 31, 2019. Common Alloy Aluminum Sheet from Bahrain, Brazil, Croatia, Egypt, Germany, Greece, India, Indonesia, Italy, Republic of Korea, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations, 85 Fed.Reg. 19,444 (Dep't Com. Apr. 7, 2020), P.R. 34 ("LTFV Initiation"). Commerce defined the scope of the products covered by the investigation as follows:
[C]ommon alloy aluminum sheet, which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width. Common alloy sheet within the scope of this investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX series core, to which cladding layers are applied to either one or both sides of the core. The use of a proprietary alloy or non - proprietary alloy that is not specifically registered by the Aluminum Association as a discrete 1XXX-, 3XXX-, or 5XXX-series alloy, but that otherwise has a chemistry that is consistent with these designations, does not remove an otherwise in-scope product from the scope.
LTFV Initiation App. at 19,449.
Commerce...
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