China Manufacturers Alliance, LLC v. United States, 011619 USCIT, 15-00124
| Opinion Judge | TIMOTHY C. STANCEU CHIEF JUDGE |
| Party Name | CHINA MANUFACTURERS ALLIANCE, LLC and DOUBLE COIN HOLDINGS LTD., et al., Plaintiffs, v. UNITED STATES, Defendant. |
| Attorney | Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for plaintiffs China Manufacturers Alliance, LLC and Double Coin Holdings Ltd. With him on the brief were James P. Durling, Matthew P. McCullough, and Tung A. Nguyen. Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Si... |
| Judge Panel | Before: Timothy C. Stanceu, Chief Judge |
| Case Date | January 16, 2019 |
| Court | Court of International Trade |
Sustaining in part, and remanding in part, a determination in response to court order in litigation contesting the final results of an administrative review of an antidumping duty order on pneumatic off-the-road tires from the People's Republic of China
Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for plaintiffs China Manufacturers Alliance, LLC and Double Coin Holdings Ltd. With him on the brief were James P. Durling, Matthew P. McCullough, and Tung A. Nguyen.
Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, D.C., for plaintiffs Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and Export Co., Ltd. With him on the brief were Brandon M. Petelin, Dharmendra N. Choudhary, Andrew T. Schutz, and Jordan C. Kahn.
John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With him on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel was James H. Ahrens II, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.
Before: Timothy C. Stanceu, Chief Judge
OPINION AND ORDER
TIMOTHY C. STANCEU CHIEF JUDGE
Before the court is a decision (the "Remand Redetermination") the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") issued in ongoing litigation contesting a determination by Commerce in an antidumping duty proceeding. Final Results of Redetermination Pursuant to Ct. Remand (June 21, 2017), ECF No. 200 ("Remand Redetermination"). Commerce issued the Remand Redetermination in response to the court's Opinion and Order of February 6, 2017. China Mfrs. Alliance, LLC v. United States, 41 CIT, 205 F.Supp.3d 1325 (2017) ("CMA I"). Also before the court is defendant's motion for a partial remand, which defendant bases on an intervening decision of the Court of Appeals for the Federal Circuit ("Court of Appeals"), Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304 (Fed. Cir. 2017) ("Diamond Sawblades"). Def.'s Mot. for Partial Voluntary Remand (Aug. 28, 2017), ECF No. 218 ("Def.'s Mot. for Remand"). The court sustains in part, and remands in part, the Remand Redetermination and denies defendant's motion for a partial remand.
I. Background
The background of this consolidated action is set forth in the court's prior Opinion and Order, which is summarized and supplemented herein. See CMA I, 41 CIT at, 205 F.Supp.3d at 1329-32.
A. The Agency Decision Contested in this Litigation
The contested administrative decision, which concluded the fifth periodic administrative review of certain pneumatic off-the-road tires from the People's Republic of China ("China" or the "PRC"), was published as Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2012-2013, 80 Fed. Reg. 26, 230 (Int'l Trade Admin. May 7, 2015) ("Amended Final Results"). The Amended Final Results were issued to correct a ministerial error made in the Department's decision published as Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2012-2013, 80 Fed. Reg. 20, 197 (Int'l Trade Admin. Apr. 15, 2015) ("Final Results"). The Final Results incorporated by reference the Issues and Decision Memorandum for Final Results of Antidumping Duty Administrative Review: Certain New Pneumatic Off-the-Road Tires from the People's Republic of China; 2012-2013 (Apr. 8, 2015) (Pub. Doc. 293), available at https://enforcement.trade.gov/frn/summary/prc/2015-08673-1.pdf (last visited Jan. 9, 2019) ("Final I&D Mem.").
B. The Parties in this Consolidated Case
China Manufacturing Alliance, LLC ("CMA") and Double Coin Holdings Ltd. ("Double Coin Holdings") (collectively, "Double Coin") are plaintiffs in this consolidated case.1 CMA is a U.S. importer of subject merchandise produced and exported by Double Coin Holdings and its affiliated entities.2 Compl. ¶ 2 (Apr. 28, 2015), ECF No. 6. A second group of plaintiffs consists of Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and Export Co., Ltd. (collectively, "GTC"). GTC is a producer and exporter of subject merchandise. Compl. ¶ 3, Guizhou Tyre Co. v. United States, No. 15-00128 (May 1, 2015), ECF No. 6. Double Coin and GTC were the mandatory respondents in the fifth review and the only two respondents individually examined by Commerce. Final Results, 80 Fed. Reg. at 20, 197. Also a plaintiff, and a defendant-intervenor, is the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (the "USW").[3] Order (May 13, 2015), ECF No. 17. The USW was a petitioner in the investigation that gave rise to the underlying antidumping duty order and participated in this administrative review as an interested party. Comp. ¶ 3, United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. and Serv. Workers Int'l Union, AFL-CIO, CLC v. United States, No. 15-00136 (May 6, 2015), ECF No. 6.
C. Procedural History
Commerce issued the antidumping duty order on off-the-road tires from China in 2008. Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Notice of Amended Final Affirmative Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 73 Fed. Reg. 51, 624 (Int'l Trade Admin. Sept. 4, 2008). On November 8, 2013, Commerce initiated the subject review, which covered entries made during the period of September 1, 2012 through August 31, 2013 (the "Period of Review" or "POR"). See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. 67, 104 (Int'l Trade Admin. Nov. 8, 2013) ("Initiation Notice").
Commerce issued the Final Results on April 15, 2015. Final Results, 80 Fed. Reg. 20, 197. Following a ministerial error allegation, Commerce issued the Amended Final Results, which assigned GTC a weighted-average dumping margin of 11.41%.4 Amended Final Results, 80 Fed. Reg. at 26, 231. Commerce assigned to Double Coin the antidumping duty rate of 105.31%, which was the rate Commerce assigned to the "PRC-wide entity," concluding that Double Coin had not established its independence from the government of the PRC. This rate was unchanged from the Final Results. Id.
Following the court's decision in CMA I, Commerce submitted the Remand Redetermination on June 21, 2017. Under protest, the Remand Redetermination changed the final weighted-average dumping margin for Double Coin from 105.31% to 0.14% (a de minimis margin). Remand Redetermination 39-40. The Remand Redetermination changed the final weighted average margin for GTC from 11.41% to 11.33%. Id.
GTC and the USW each filed comments on the Remand Redetermination.5 Consol. Pl. GTC's Comments on Final Results of Redetermination Pursuant to Ct. Order (July 21, 2017), ECF No. 208 ("GTC's Comments"); Titan Tire Corp. and USW Comments on the Dept. of Commerce's Redetermination Pursuant to Ct. Remand (July 21, 2017), ECF No. 207 ("USW's Comments"). Before filing a response to these comments, defendant filed its motion for a partial remand, under which Commerce would revisit the issue of Double Coin's margin in light of Diamond Sawblades, which was issued after the court's Opinion and Order in CMA I. Def.'s Mot. for Remand. On September 1, 2017, defendant filed its response to the parties' comments on the Remand Redetermination. Def.'s Resp. to Comments on Remand Results, ECF No. 221 ("Def.'s Reply"). Double Coin opposed defendant's motion for a partial remand. Double Coin and CMA's Opp'n to Def.'s Mot. for Partial Voluntary Remand (Sept. 18, 2017), ECF No. 222 ("Double Coin's Opp'n"). On October 5, 2017, defendant filed a reply in support of its motion for a partial remand. Def.'s Reply in Support of its Mot. for Partial Voluntary Remand (Oct. 5, 2017), ECF No. 223.
II. Discussion
A. Jurisdiction and Standard of Review
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c), pursuant to which the court reviews actions commenced under section 516A of the Tariff Act of 1930 (the "Tariff Act"), as amended 19 U.S.C. § 1516a, including an action contesting a final determination that Commerce issues to conclude an antidumping duty administrative review. In reviewing a final determination, the court "shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).
B. The Department's Remand Redetermination
In CMA I, the court directed Commerce to submit a redetermination addressing the following four decisions in the Amended Final Results, which the court had ruled were contrary to law: (1) the 105.31% antidumping duty rate assigned to Double Coin, CMA I, 41 CIT at___, 205 F.Supp.3d at 1334-41; (2) downward adjustments Commerce made to GTC's export price ("EP") and constructed export price ("CEP") to account for Chinese irrecoverable value-added tax ("VAT"), id., 41 CIT at__, 205 F.Supp.3d at 1344-51; (3) the calculation of surrogate values for GTC's brokerage and handling costs and ocean freight costs, id., 41 CIT at__, 205 F.Supp.3d at 1356-58; and (4) the...
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