Dupont Teijin Films Usa, Lp v. U.S., Slip Op. 03-79.

• Decision Date: 09 July 2003
• Docket Number: Slip Op. 03-79.,Court No. 02-00463.
• Parties: DUPONT TEIJIN FILMS USA, LP, Mitsubishi Polyester Film of America, LLC, and Toray Plastics (America), Inc., Plaintiffs, v. UNITED STATES, Defendant, and Polyplex Corporation Limited, Defendant-Intervenor.
• Court: U.S. Court of International Trade

273 F.Supp.2d 1347

DUPONT TEIJIN FILMS USA, LP, Mitsubishi Polyester Film of America, LLC, and Toray Plastics (America), Inc., Plaintiffs, v. UNITED STATES, Defendant, and Polyplex Corporation Limited, Defendant-Intervenor.

Slip Op. 03-79.

Court No. 02-00463.

United States Court of International Trade.

July 9, 2003.

Wilmer, Cutler & Pickering (John D. Greenwald, Ronald I. Meltzer, Jason E. Kearns and Omari S. Simmons), Washington, DC, for plaintiffs.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, (Paul Kovac), Scott D. McBride and David R. Mason, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for defendant, of counsel.

Coudert Brothers LLP (Kay C. Georgi and Mark P. Lunn), Washington, DC, for defendant-intervenor.

OPINION

RESTANI, Judge.

This matter is before the court on a motion for judgment upon the agency record pursuant to USCIT Rule 56.2 by Dupont Teijin Films USA, LP, Mitsubishi Polyester Film of America, LLC, and Toray Plastics (America), Inc. (collectively "Plaintiffs"), petitioners in the underlying antidumping duty ("AD") investigation. See Polyethylene Terephthalate Film, Sheet, and Strip From India, 67 Fed.Reg. 34,899 (Dep't Commerce May 16, 2002) (final) [hereinafter "Final Determination"]. In its Final Determination, the Department of Commerce ("Commerce") found that polyethylene terephthalate film, sheet, and strip ("PET film") from India are being sold, or are likely to be sold, in the United States at less than fair value ("LTFV"). Id. at 34,899. Plaintiffs challenge only one aspect of the Final Determination: Commerce's decision to exclude from the antidumping duty order PET film produced in India by defendant-intervenor Polyplex Corporation Limited ("Polyplex").

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000). The court will uphold Commerce's determination in an antidumping duty investigation unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (2000).

FACTUAL & PROCEDURAL BACKGROUND

On May 17, 2001, Plaintiffs, domestic producers of PET film, simultaneously filed an antidumping duty petition against imports of PET film from India and Taiwan and a countervailing duty petition against PET film from India. Commerce published notice of its initiation of both investigations on June 13, 2001.¹ See Polyethylene Terephthalate Film, Sheet, and Strip (PET Film) from India and Taiwan, 66 Fed.Reg. 31,888 (Dep't Commerce June 13, 2001) (initiation); Polyethylene Terephthalate Film, Sheet, and Strip (PET film) from India, 66 Fed.Reg. 31,892 (Dep't Commerce June 13, 2001) (initiation). Commerce preliminarily determined that PET film from India is being, or is likely to be, sold in the United States at LTFV. Polyethylene Terephthalate Film, Sheet, and Strip from India, 66 Fed.Reg. 65,893, 65,894 (Dep't Commerce Dec. 21, 2001) (prelim.) [hereinafter "Preliminary Determination"].

In the Preliminary Determination, Commerce calculated the export price,² or, where appropriate, the constructed export price³ for Polyplex's exports in accordance with section 772(a) of the Tariff Act of 1930, 19 U.S.C. § 1677a. See id. at 65,895-96. Commerce then increased Polyplex's export price (sometimes referred to as "U.S. price") "by the amount of the export subsidy found in the companion countervailing duty investigation on PET film from India."⁴ Id. at 65,896 (emphasis added). This adjustment caused Polyplex's estimated dumping margin⁵ to fall below statutory de minimis levels. Id. at 65,898 (reporting Polyplex's weighted-average dumping margin,⁶ as adjusted, as 1.38 percent); see 19 U.S.C. § 1673b(b)(3) (2000) (requiring Commerce to "disregard any weighted average dumping margin that is ... less than 2 percent ad valorem or the equivalent specific rate for the subject merchandise."). Commerce therefore preliminarily determined to exclude Polyplex from the antidumping duty order. See Prelim. Determ., 66 Fed.Reg. at 65,898. After publishing its Preliminary Determination, Commerce issued and received an additional supplemental questionnaire for respondent Polyplex, conducted a verification of respondents' questionnaire responses, reviewed case briefs and rebuttal briefs, and held a public hearing. Final Determ., 67 Fed.Reg. at 34,899.

In the Final Determination, Commerce again found that PET film from India is being sold, or is likely to be sold, in the United States at LTFV, but the Department continued to exclude Polyplex from the affirmative determination. Id. Commerce had calculated a weighted-average dumping margin of 10.34 percent for Polyplex, but it "adjusted the antidumping duty cash deposits⁷ for the export subsidies found in the companion countervailing investigation rather than adjusting net U.S. price." Id. at 34,900-01 & n. 2 (citing Issues & Decision Mem. at cmt. 2) (emphasis added). The domestic industry, petitioners below and Plaintiffs here, had contested the methodology used in the Preliminary Determination, arguing that the statute only authorizes Commerce to increase a producer's U.S. price by the amount of countervailing duties "actually `imposed' (i.e., assessed) on the subject merchandise" rather than by the amount of estimated countervailable export subsidies. Issues & Decision Mem. at cmt. 1 (quoting Petitioners' Case Br. at 3). Commerce agreed that its "longstanding practice in an investigation is to offset the AD cash deposit rate by the export subsidy cash deposit rate" rather than adjusting the dumping margin calculation.⁸ Id. Nonetheless, Commerce excluded Polyplex from the antidumping duty order, explaining that "[i]f the Department's calculations in an investigation result in a zero cash deposit rate, then in reality, there exists no dumping upon which an affirmative determination could be based as to that particular respondent."⁹ Final Determ., 67 Fed.Reg. at 34,901; see Antidumping Duty Order, 67 Fed.Reg. at 44,176 (excluding Polyplex). This action followed.

DISCUSSION

The crux of Plaintiffs' argument is that Polyplex must be included in the antidumping duty order because it has a dumping margin of 10.34 percent, despite its cash deposit rate of zero. Plaintiffs argue that the statute, legislative history, agency regulations, and the Statement of Administrative Action ("SAA") all support their view that an exclusion from an antidumping duty order is only allowed if the producer has a de minimis dumping margin. Commerce argues that the statute is silent or ambiguous on this issue, its interpretation of the statute is reasonable, and that Commerce's decision to exclude Polyplex from the antidumping duty order is entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (holding that if a statute is silent or ambiguous on a specific issue, courts must defer to the administrating agency's permissible construction of it).

The Department's construction of the antidumping statute is a question of law, so the court must first "determine whether Congress's purpose and intent on the question at issue is judicially ascertainable." Timex V.I. v. United States, 157 F.3d 879, 881 (Fed.Cir.1998). The court looks at the plain language of the statute, legislative history, and the canons of statutory construction in ascertaining the intent of Congress. See id. at 881-82; Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 470-79, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997). "The expressed will or intent of Congress on a specific issue is dispositive." Ilva Lamiere E Tubi S.R.L. v. United States, 196 F.Supp.2d 1347, 1349 (CIT 2002) (citing Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 233-37, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). Only if the court concludes that the statute is vague or silent on an issue should the court reach the issue of Chevron deference. See Bd. of Governors Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986); Timex, 157 F.3d at 881-82. Under Chevron, the court will uphold Commerce's interpretation of the antidumping laws if such an interpretation is reasonable given the express terms of the provisions at issue, the objectives of those provisions, and the objectives of the antidumping scheme as a whole. See Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1379-80 (Fed.Cir.2001) (affording Chevron deference to Commerce's interpretations of ambiguous statutory terms articulated in the course of an antidumping determination); Windmill Int'l PTE. v. United States, 193 F.Supp.2d 1303, 1305-06 (CIT 2002) (citing Mitsubishi Heavy Indus. v. United States, 22 CIT 541, 545, 15 F.Supp.2d 807, 813 (1998)).

In the present case, the law is clear that producers with dumping margins over two percent must be included in an affirmative final determination of sales at less than fair value. Under 19 U.S.C. § 1673d, Commerce engages in a two-step process in making an antidumping determination in an initial investigation. First, Commerce must decide whether the subject merchandise is being, or is likely to be, sold in the United States at LTFV. 19 U.S.C. § 1673d(a)(1). To make this determination, Commerce compares the normal value of the merchandise in the home market to the export price of the same merchandise. If the normal value exceeds the export price, the merchandise is being sold at LTFV and the producer is "dumping." See id. § 1677(34) (defining "dumping" as "the sale or likely sale of goods at less than fair value"). Commerce is instructed to "disregard any weighted average dumping margin that is de minimis." Id. § 1673d(a)(4). A de minimis margin is one that is "less than 2...