Dupont Teijin Films Usa, Lp v. U.S.

Decision Date12 May 2005
Docket NumberNo. 04-1548.,04-1548.
Citation407 F.3d 1211
PartiesDUPONT TEIJIN FILMS USA, LP, Mitsubishi Polyester Film of America, LLC, and Toray Plastics (America), Inc., Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellee, and Polyplex Corporation Limited, Defendant-Appellant.
CourtU.S. Court of Appeals — Federal Circuit

Lynn M. Fischer Fox, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, DC, argued for plaintiffs-appellees. With her on the brief was Ronald I. Meltzer. Of counsel was John D. Greenwald.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, and Stephen C. Tosini, Trial Attorney. Of counsel on the brief were John D. McInerney, Acting Chief Counsel, Berniece A. Browne, Senior Counsel, and Scott D. McBride, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

Kay C. Georgi, Coudert Brothers, LLP, of Washington, DC, argued for defendant-appellant. With her on the brief were Mark P. Lunn and John M. Gurley. Of counsel was Kristy Balsanek.

Before LOURIE, CLEVENGER, and PROST, Circuit Judges.

CLEVENGER, Circuit Judge.

Polyplex Corporation Limited ("Polyplex") appeals the final judgment of the United States Court of International Trade which held that the Department of Commerce ("Commerce" or "agency") correctly included Polyplex within the scope of its antidumping ("AD") duty order covering imported polyethylene terephthalate film, sheet, and strip ("PET film") from India. Because Commerce did not err in the calculation of Polyplex's dumping margin, and that margin was not de minimis, we affirm the decision of the Court of International Trade sustaining the inclusion of Polyplex within the scope of Commerce's AD duty order.

I

This case has an extensive history before the agency and the Court of International Trade. Consequently, we supply a condensed history of the case. Polyplex is an Indian producer of PET film. In its final AD duty determination, Commerce found that Polyplex's film was sold, or likely to be sold, in the United States at less than fair value ("LTFV"). Commerce determined that Polyplex had a dumping margin of 10.34 percent. However, Commerce adjusted Polyplex's cash deposit rate to account for expected countervailable export subsidies calculated in a concurrent countervailing ("CV") duty investigation so that Polyplex would not be assessed double duties. The cash deposit rate was reduced to zero by this offset. Commerce thus found that, in essence, Polyplex should not be found to be dumping and should be excluded from the AD duty order. See Polyethylene Terephthalate Film, Sheet, and Strip from India, 67 Fed.Reg. 34,899, 34,901 (May 16, 2002) ("Final Determination").

This determination was reviewed by the Court of International Trade upon motion for judgment on the agency record brought by Dupont Teijin Films USA, LP and other petitioners in the underlying AD investigation. Dupont Teijin Films USA, LP v. United States, 273 F.Supp.2d 1347, 1348 (Ct. Int'l Trade 2003) ("Dupont I"). The parties did not dispute the zero deposit rate, only whether Polyplex should be included in the AD duty order which could potentially lead to future reviews and assessments of AD duties if Polyplex's circumstances changed. The court requested additional briefing from the parties to aid in the determination of what the term "imposed" in 19 U.S.C. § 1677a(c)(1)(C) required.

In its supplemental briefing to the Court of International Trade, the government stated that "for the purposes of § 1677a(c)(1)(C), a reasonable interpretation is that a countervailing duty is imposed upon the issuance of a countervailing duty order." Defendant's Additional Brief Pursuant to Court Order at 9-10. The government then admitted in its brief that it did not increase Polyplex's export price or constructed export price by the countervailing duty and therefore did not account for these duties in the calculation of the dumping margin. Id. at 11. But the government contended that the adjustment of the cash deposit rate by the countervailing duties in essence meant the same thing as a zero dumping margin, primarily that Polyplex was not dumping and the AD duty order should not apply to Polyplex.

Commerce asserted that it had authority to factor into the cash deposit rate the effect of the countervailing duty order prior to its issuance, and based on the zero cash deposit rate calculated, it could thus exclude an importer from the scope of the dumping order. This portion of the government's argument was rejected by the Court of International Trade in Dupont I, which held, as a matter of plain statutory meaning, that exclusion from the scope of an AD duty order can only be granted to a party who has a dumping margin of less than two percent, or a de minimis dumping margin. Recognizing as error the exclusion of Polyplex based on the cash deposit rate rather than the dumping margin, the Court of International Trade remanded the case to Commerce instructing it to apply 19 U.S.C. § 1677a to calculate Polyplex's dumping margin after adjusting the export price by any countervailing duties that had been "imposed," as Commerce interpreted it. 273 F.Supp.2d at 1352. The court also instructed that "[i]f Commerce continues to calculate a dumping margin of 10.34 percent for Polyplex, Polyplex must be subject to the antidumping duty order, whether or not it is given a cash deposit rate of zero because of expected offsetting countervailing duties." Id. at 1352-53.

On remand, in its Final Results of Redetermination Pursuant to Court Remand (Aug. 11, 2003) ("Remand Determination"), Commerce stated that it interpreted 19 U.S.C. § 1677a(c)(1)(C) to require an increase in the export price by the CV duties imposed under a CV duty order that has issued. Remand Determination at 8, available at http://ia.ita.doc.gov/remands/03-79.pdf. Under this interpretation, the original dumping margin for Polyplex, 10.34 percent, was correctly calculated, and Polyplex was deemed within the scope of the AD duty order. Commerce did however retain the zero cash deposit rate, by using the impending CV duty offset for the purpose of setting Polyplex's cash deposit rate in order to avoid the collection of both the CV duty and the AD duty. Polyplex then appealed to the Court of International Trade.

In Dupont Teijin Films USA, LP v. United States, 297 F.Supp.2d 1367 (Ct. Int'l Trade 2003) ("Dupont II"), the Court of International Trade sustained the remand determination by Commerce in part by finding Commerce's interpretation reasonable under a Chevron analysis, but remanded with instructions that Commerce consider the broader implications of the application of the annunciated interpretation of "imposed." Under this interpretation, because Polyplex's exports were not subject to a CV duty order when the AD duty order was issued, Polyplex would be subject to the AD duty order because the CV duties were not of record at the time of the final determination. However, for the second remand, Commerce was instructed to consider "how it will fairly and consistently apply its interpretation of `imposed' when a final determination or an amended final determination issues on the same day as a countervailing duty order on the subject merchandise." Id. at 1374. Commerce was also instructed to consider if petitioners in antidumping cases could "game" the outcome of concurrent AD and CV duty investigations and effectively prevent CV duties from being "imposed" before the AD duty order issued by aligning the AD and CV duty investigations.

In its Second Remand Determination (Mar. 3, 2004), Commerce addressed the ability of petitioners to manipulate AD margins by either requesting or not requesting alignment of the AD and CV duty investigations and found that petitioners did not manipulate Polyplex's AD margin in this case. Second Remand Determination at 5-6, available at http://ia.ita.doc.gov/remands/03-167.pdf. Commerce also disposed of the concern that "imposed" as interpreted may not be consistently applied to AD and CV duty determinations issued on the same day by explaining that the final determinations are based on the information in the record at the time of the determination and it "likely" would adjust U.S. prices if the AD determination issues on the same day as the CV duty order. In this case, Commerce said that the CV duty order was published after the final AD determination and as a result the CV duty order should not be considered part of the record. The Final Determination was merely amended to correct a ministerial error and republished as corrected on the same day as the CV duty order. Commerce found that since it could not amend a final determination to adjust Polyplex's export prices under the ministerial error provision, Polyplex would have been in the same position it is in now even if Polyplex would have been aware of the interpretation of "imposed" as now used by Commerce.

The Second Remand Determination by Commerce was also reviewed by the Court of International Trade. DuPont Teijin Films USA, LP v. United States, No. 02-00463, 2004 WL 1368838 (Ct. Int'l Trade June 18, 2004) ("Dupont III"). Polyplex argued before the court that Commerce had failed to comply with the court's instructions to make an adjustment of the U.S. price under 19 U.S.C. § 1677a(c)(1)(C) and had not recalculated the dumping margin based on the countervailing duties imposed on the same day as the Amended Final Determination. The court recognized that "[a]bsent such an amendment, Polyplex's dumping margin of 10.34 percent would mandate its inclusion in the antidumping duty order." Id. at *1. The Court of International Trade found that Commerce had complied with its...

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