China Mfrs. Alliance, LLC v. United States, Slip Op. 17–12

• Decision Date: 06 February 2017
• Docket Number: Slip Op. 17–12,Consol. Court No. 15–00124
• Parties: CHINA MANUFACTURERS ALLIANCE, LLC and Double Coin Holdings Ltd., Plaintiffs, Titan Tire Corporation, et al., Plaintiffs, and Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and Export Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

205 F.Supp.3d 1325

CHINA MANUFACTURERS ALLIANCE, LLC and Double Coin Holdings Ltd., Plaintiffs,

Titan Tire Corporation, et al., Plaintiffs,

and

Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and Export Co., Ltd., Plaintiffs,

v.UNITED STATES, Defendant.

Slip Op. 17–12

Consol. Court No. 15–00124

United States Court of International Trade.

February 6, 2017

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, Claudia Hartleben, and Tung Nguyen.

William F. Fennell, Stewart and Stewart, of Washington, D.C., for plaintiffs and defendant-intervenors Titan Tire Corporation and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC. With him on the brief were Terence P. Stewart and Nicholas J. Birch.

Mark E. Pardo, 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, and Andrew T. Schutz.

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 Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Nanda Srikantaiah, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.

OPINION AND ORDER

Stanceu, Chief Judge:

In this consolidated action,¹ three groups of plaintiffs contest the final determination the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") issued to conclude the fifth periodic administrative review of an antidumping duty order on pneumatic off-the-road tires from the People's Republic of China ("China" or the "PRC"). Finding merit in certain of plaintiffs' claims, the court remands the determination to Commerce for reconsideration and redetermination.

I. BACKGROUND

A. The Contested Determination

The determination contested in this litigation is 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" ); seeCertain 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" ). Commerce issued the antidumping duty order (the "Order") on off-the-road tires from China (the "subject merchandise") on September 4, 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 , A–570–912, 73 Fed. Reg. 51,624 (Int'l Trade Admin. Sept. 4, 2008). The fifth administrative review pertained to import entries of subject merchandise made during the period of review ("POR") of September 1, 2012 through August 31, 2013. Final Results , 80 Fed. Reg. at 20,197.

B. The Parties to this Consolidated Case

The three groups of plaintiffs in this consolidated case are (1) China Manufacturers Alliance, LLC ("CMA") and Double Coin Holdings Ltd.; (2) Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and Export Co., Ltd.; and (3) Titan Tire Corporation ("Titan"), joined by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO CLC (the "USW").

Commerce considered Double Coin Holdings Ltd. and two Chinese tire producers affiliated with it to be a single company for the purposes of the review, to which it referred as "Double Coin."²

Final Results , 80 Fed. Reg. at 20,198. CMA is a U.S. importer of Double Coin's subject merchandise. Corrected Br. of Resp. Pls. CMA and Double Coin in Supp. of Mot. for J. on the Agency R. (Oct. 5, 2015) 1, ECF No. 49 ("Double Coin's Br."). Commerce designated Double Coin, an exporter and producer of subject merchandise, as one of two mandatory respondents in the fifth review. Final Results , 80 Fed. Reg. at 20,197.

Commerce designated Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and Export Co., Ltd. (collectively, "GTC" or "Guizhou"), another exporter and producer of subject merchandise, as the other mandatory respondent in the review. Id.

Titan, a U.S. producer of off-the-road tires, and the USW were the petitioners in the Department's investigation culminating in the issuance of the Order. Certain New Pneumatic Off–The–Road Tires From the People's Republic of China; Preliminary Determination of Sales at Less than Fair Value and Postponement of Final Determination , 73 Fed. Reg. 9,278 (Int'l Trade Admin. Feb. 20, 2008). Titan and the USW participated in the fifth administrative review as interested parties. Compl. ¶ 3 (May 6, 2015), ECF No. 6 (Court No. 15–00136).

C. Proceedings before Commerce

Commerce initiated the fifth administrative review on November 8, 2013. 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). Commerce published the preliminary results of the review ("Preliminary Results") on October 10, 2014. Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2012–2013 , 79 Fed. Reg. 61,291 (Int'l Trade Admin. Oct. 10, 2014) (" Preliminary Results "), and accompanying Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Certain New Pneumatic Off-the-Road Tires from the People's Republic of China; 2012–2013 , A–570–912 ARP 12–13 (Int'l Trade Admin. Sept. 30, 2014) (Admin.R.Doc. No. 259), available at http://enforcement.trade.gov/frn/summary/prc/2014–24275–1.pdf (last visited Jan. 25, 2017) ("Prelim. I & D Mem. ").

In the Preliminary Results, Commerce preliminarily determined that Double Coin made sales of subject merchandise at less than fair value and calculated for it a preliminary dumping margin of 0.69%. Preliminary Results , 79 Fed. Reg. at 61,293. However, upon adopting a rebuttable presumption that all Chinese exporters are subject to control by the government of the PRC, Commerce preliminarily ruled Double Coin to have failed to rebut the Department's presumption of government control and, therefore, to have failed to qualify for a "separate rate." On that basis, Commerce considered Double Coin to be part of what it termed the "PRC-wide entity." Id. In the Preliminary Results, Commerce preliminarily assigned the PRC-wide entity a rate of 105.59%, which it obtained by taking a simple average of the individual rate Commerce calculated for Double Coin (0.69%) and the rate Commerce assigned to the PRC-wide entity in the original antidumping duty investigation, which was 210.48%. Id. Commerce also preliminarily determined that GTC made sales of subject merchandise at less than fair value and qualified for a separate rate, preliminarily assigning GTC an individually- determined margin of 16.18%. Id. at 61,294.

On April 15, 2015, Commerce published the Final Results, incorporating by reference an 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 , A–570–912 ARP 12–13 (Int'l Trade Admin. Apr. 8, 2015) (Admin.R.Doc. No. 293), available at http://enforcement.trade.gov/frn/summary/prc/2015–08673–1.pdf (last visited Jan. 25, 2017) ("Final I & D Mem. "). Commerce assigned a margin of 11.34% to GTC and a margin of 105.31% to the PRC-wide entity, which Commerce again determined to include Double Coin based on a finding that Double Coin had not rebutted the Department's presumption of government control. Final Results , 80 Fed. Reg. at 20,199. The PRC-wide rate was the "simple average of the previously assigned PRC-wide rate (210.48 percent) and Double Coin's calculated margin (0.14 percent)." Id. (footnotes omitted).

Following a ministerial error allegation, Commerce published amended final results of the review ("Amended Final Results") on May 7, 2015. See Amended Final Results , 80 Fed. Reg. at 26,230. In the Amended Final Results, Commerce revised GTC's margin from 11.34% to 11.41%.³ Id. at 26,231.⁴ The PRC-wide rate remained 105.31%. Id.

D. Proceedings before the Court of International Trade

CMA and Double Coin Holdings Ltd. commenced their action on April 28, 2015. Summons, ECF No. 1; Compl., ECF No. 6. Plaintiffs GTC, and Titan and the USW, commenced their actions thereafter. See Compl. (May 1, 2015), ECF No. 6 (Court No. 15–00128); Compl. (May 6, 2015), ECF No. 6 (Court No. 15–00136). Titan and the USW filed a motion to intervene as defendant-intervenors in the cases brought by CMA/Double Coin Holdings Ltd. and GTC. See Titan and the USW Consent Mot. to Intervene as of Right (May 12, 2015), ECF No. 12; Titan and the USW Consent Mot. to Intervene as of Right (May 12, 2015), ECF No. 12 (Court No. 15–00128). CMA and Double Coin Holdings Ltd., and GTC, filed motions to intervene as defendant-intervenors in the case brought by Titan and the USW. See Double Coin Consent Mot. to Intervene as of Right (May 15, 2015), ECF No. 13 (Court No. 15–00136); Guizhou Consent Mot. to Intervene as of Right (June 2, 2015), ECF No. 18 (Court No. 15–00136).

Before the court are the three motions for judgment on the agency record, filed by each of the three groups of plaintiffs according to USCIT Rule 56.2. See Resp. Pls.' Mot. for J. on the Agency R. (Sept. 24, 2015), ECF No. 38; ...