Cooper (Kunshan) Tire Co. v. United States
| Citation | 610 F.Supp.3d 1287 |
| Decision Date | 08 December 2022 |
| Docket Number | Slip Op. 22-137,Consol. Court No. 20-00113 |
| Parties | COOPER (KUNSHAN) TIRE CO., LTD. and Cooper Tire & Rubber Co., Plaintiffs, ITG Voma Corp., Plaintiff-Intervenor, and Vogue Tyre & Rubber Co., Consolidated Plaintiff, v. UNITED STATES, Defendant, and The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers Int'l Union, AFL-CIO, CLC, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Daniel J. Cannistra, Crowell & Moring LLP, of Washington, D.C., argued for plaintiffs Cooper (Kunshan) Tire Co., Ltd. and Cooper Tire & Rubber Company.
Jordan C. Kahn and Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of Washington, D.C., argued for consolidated plaintiff Vogue Tyre & Rubber Co.
Nicholas R. Sparks, Hogan Lovells US LLP, of Washington, D.C., argued for plaintiffintervenor ITG Voma Corporation. With him on the brief were Jonathan T. Stoel and Craig A. Lewis.
Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for defendant United States. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director. Of counsel on the brief was Spencer Neff, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Nicholas J. Birch, Schagrin Associates, of Washington, D.C., argued for defendant-intervenor the United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC. With him on the brief was Roger B. Schagrin.
Denny Swift (portrayed by Milo Ventimiglia): "Car goes where your eyes go, Enz."1
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Before the court is the remand results of the U.S. Department of Commerce ("Commerce") pursuant to the court's order in Cooper (Kunshan) Tire Co. v. United States ("Cooper I "), 45 CIT ––––, ––––, 539 F. Supp. 3d 1316, 1339-41 (2021). See Final Results of Redetermination Pursuant to Ct. Remand, ECF No. 69 ("Remand Results"). In Cooper I , the court remanded Commerce's final determination in the administrative review of the countervailing duty ("CVD") order on certain passenger vehicle and light truck tires from the People's Republic of China ("China") for the period of review ("POR") January 1, 2017, through December 31, 2017. See 45 CIT at ––––, 539 F. Supp. 3d at 1339-41 ; see also Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China: Final Results of Countervailing Duty Administrative Review; 2017 , 85 Fed. Reg. 22,718 (Dep't of Commerce Apr. 23, 2020) (final determination) and accompanying Issues and Decision Memorandum ("IDM") (Dep't of Commerce Apr. 15, 2020), PR 383. The court ordered Commerce to respond to six discrete instructions by providing further explanation. See 45 CIT at ––––, 539 F. Supp. 3d at 1339-41.
On remand, Commerce responds to each distinct inquiry and continues to conclude that, based on its application of adverse facts available ("AFA"), Cooper (Kunshan) Tire Co., Ltd. ("Cooper Tire" or "CKT")2 and Shandong Longyue Rubber Co., Ltd. ("Longyue")3 (collectively, "respondents") used and benefited from the Export Buyers Credit Program ("EBCP") administered by the Export-Import Bank of the People's Republic of China ("China Export-Import Bank"). Remand Results at 2. For the following reasons, the court sustains Commerce's Remand Results.
The court presumes familiarity with the facts, as set out in Cooper I , and recounts only those facts relevant to the issues before the court on remand.
On October 12, 2021, the court addressed whether Commerce's determination based on AFA that Cooper Tire and Longyue had used the EBCP was supported by substantial evidence. Cooper I , 45 CIT ––––, 539 F. Supp. 3d 1316.4 With respect to the application of AFA, the court held that Commerce: (1) identified the gap in the record formed by the failure of the Government of China ("GOC") to provide certain EBCP-related information; (2) explained, for purposes of verification, the necessity of certain loan disbursement and partner and correspondent bank information but not the necessity of EBCP-related information about a USD 2 million contract threshold requirement; and (3) did not explain the reason that Commerce could not instead verify other information on the record. Id. at ––––, 539 F. Supp. 3d at 1327-28.
In Cooper I , the court ordered that Commerce provide the following explanations on remand related to Commerce's application of AFA for the EBCP:
(1) [E]xplain the reason that the information withheld by the GOC about the threshold requirement and the 2013 revisions was necessary to verify nonuse by describing how the missing information prevented Commerce from taking the steps that it considered necessary to verify nonuse; (2)(a) explain the reason that the questionnaire statements by Cooper Tire of non-use by its customers are "unverifiable" by describing step-by-step Commerce's methodology for verifying non-use; (b) describe the extent to which the record would enable Commerce to understand the precise role that the mandatory respondents would play in permitting customers to participate in the EBCP; (c) describe the information that Commerce would need from the mandatory respondents and/or the customers to determine whether either the mandatory respondents or their customers used the EBCP; (3) explain the sources that Commerce would need to look at to complete the process of verification, including any correspondence or communications of any nature (e.g., emails, letters, faxes, telephone calls, text messages) between the mandatory respondents or their customers and the GOC, the China Export-Import Bank and partner/correspondent banks; (4) explain whether it would be feasible — and, if not, why not — for Commerce to solicit and obtain the withheld information about the threshold requirement from the mandatory respondents or their customers; (5) if Commerce were to consider that obtaining and conducting a review of the sources of information identified in "(3)", above, were unduly burdensome, explain with particularity the reasons for this conclusion; and (6) explain the extent to which Commerce would be able to rely on information from mandatory respondents by explaining how, if at all, such information would be relevant and reliable for Commerce to establish non-use. The court emphasizes that each of the aforementioned instructions for Commerce on remand is a distinct inquiry that requires a distinct individual response as well as clarification from Commerce in its redetermination.
Id. at ––––, 539 F. Supp. 3d at 1339-41.
On January 11, 2022, Commerce issued its draft redetermination ("Draft Remand Results"). Remand Results at 3 (citing Draft Results of Remand Redetermination (Jan. 11, 2022), Cooper (Kunshan) Tire Co. , Consol. Court No. 20-00113, 45 CIT ––––, Slip Op. 21-141 (Oct. 12, 2021)). On January 21, 2022, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial Service Workers International Union, AFL-CIO (the "USW"), Vogue Tyre & Rubber Co. ("Vogue"), ITG Voma Corporation ("Voma") and Cooper Tire provided comments on the Draft Remand Results. Id. at 4 (footnotes omitted).
On February 2, 2022, Commerce filed its final Remand Results, in which Commerce responded to the court's remand order, addressed the parties’ comments, continued to find that the respondents used the EBCP and did not change any subsidy rates. See id. at 4, 41-42. On April 4, 2022, Cooper Tire, Cooper Tire & Rubber Company ("CTRC"), Voma and Vogue (collectively, "plaintiffs") provided comments on the Remand Results wherein plaintiffs continue to argue against the application of AFA. See Consol. Pl. and Consol. Pl.-Intervenor's Comments in Opp'n to Remand Redetermination ( ) at 1, ECF No. 75; Pls.’ Comments on Final Remand Redetermination ( ) at 1, ECF No. 76. On May 19, 2022, defendant United States (the "Government") and the USW responded to plaintiffs’ comments. See Def.’s Response to Comments Regarding Remand Redetermination ("Def. Br."), ECF No. 82; Def.-Intervenor United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, AFL-CIO, CLC Comments in Supp. of Remand Results ("Def.-Intervenor Br."), ECF No. 79.
On July 14, 2022, the court heard oral argument. See Oral Arg., July 14, 2022, ECF No. 87. On July 29, 2022, the parties provided responses to two follow-up questions. See Def.-Intervenor's Answer to Ct.’s Post-Hr'g Questions, ECF Nos. 90-91; Def.’s Resp. to Post-Arg. Questions, ECF No. 92; Consol. Pls.’ Resp. to Ct. Question, ECF No. 93; Pls.’ Comments in Resp. to Suppl. Questions, ECF Nos. 94-95. On August 4, 2022, the parties participated in a teleconference to discuss their responses. Teleconference, ECF No. 96.
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018), and 28 U.S.C. § 1581(c).5
On remand, the court will sustain Commerce's determinations "if they are in accordance with the remand order, are supported by substantial evidence[ ] and are otherwise in accordance with law." MacLean-Fogg Co. v. United States , 39 CIT ––––, ––––, 100 F. Supp. 3d 1349, 1355 (2015) (citing 19 U.S.C. § 1516a(b)(1)(B)(i) ); see Prime Time Com. LLC v. United States , 45 CIT ––––, ––––, 495 F. Supp. 3d 1308, 1313 (2021) () (quoting Xinjiamei Furniture (Zhangzhou) Co. v. United States , 38 CIT ––––, ––––, 968 F. Supp. 2d 1255, 1259 (2014) ), aff'd , No. 2021-1783, 2022 WL 2313968 (Fed. Cir. June 28, 2022) ; see also Jiangsu Zhongji Lamination...
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