Golden Dragon Precise Copper Tube Grp., Inc. v. United States
Decision Date | 21 July 2016 |
Docket Number | Court No. 15-00177,Slip Op. 16 - 73 |
Parties | GOLDEN DRAGON PRECISE COPPER TUBE GROUP, INC., HONG KONG GD TRADING CO., LTD., GOLDEN DRAGON HOLDING (HONG KONG) INTERNATIONAL, LTD., and GD COPPER (U.S.A.) INC., Plaintiffs, v. UNITED STATES, Defendant. |
Court | U.S. Court of International Trade |
Before R. Kenton Musgrave, Senior Judge
OPINION AND ORDER[ final results of administrative review for further explanation or reconsideration.]
Kevin M. O'Brien, Christine M. Streatfeild, and Yi Fang, Baker & McKenzie, LLP, of Washington DC, for the plaintiffs.
Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for the defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of Counsel on the brief was David P. Lyons, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Musgrave, Senior Judge: The plaintiffs, Golden Dragon Precise Copper Tube Group, Inc. (et al.; collectively "Golden Dragon"), challenge several aspects of Seamless Refined Copper Pipe and Tube From the People's Republic of China, 80 Fed. Reg. 32087 (Jun. 8, 2015) ( )("Final Results") as stated in the accompanying issues and decision memorandum ("IDM") on the administrative record compiled by the defendant's International Trade Administration, U.S. Department of Commerce ("Commerce" or "the Department"). The Final Results cover the third administrative review of subject merchandise which covers the period of review ("POR") from November 1, 2012 to October 31, 2013. Golden Dragon was selected as the sole mandatory respondent at the administrative outset, and the proceeding resulted in a weighted average margin for Golden Dragon of 10.50%. Final Results, 80 Fed. Reg. at 32088.
Golden Dragon timely invokes the jurisdiction of the court under 19 U.S.C. §1516a(a)(2)(B)(iii) and 28 U.S.C. §1581(c). Its complaint challenges the administrative determinations to (i) make an unrecovered Value Added Tax ("VAT") adjustment of 4 percent to Golden Dragon's U.S. sales, (ii) apply the byproduct offset for recovered copper to normal value rather than to direct material costs, and (iii) rely upon a truck freight surrogate value that differed from a truck freight rate used previously. On such matters, the court will sustain an administrative determination 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). This opinion remands for further explanation or reconsideration of Commerce's VAT determination. Each issue is addressed in turn, as follows.
In determining the dumping margin applied to producers or exporters from non-market economies ("NME"), Commerce must determine the export price ("EP") or constructed export price ("CEP") of the subject merchandise, or the price at which the subject merchandise is sold in the United States. 19 U.S.C. §1677b(a). Commerce treats the People's Republic of China ("PRC") as a NME. Decision Memorandum for Preliminary Results, PDoc 98 ("Prelim IDM") at 6. Both EP and CEP are then to be adjusted by reducing EP or CEP by, inter alia, "the amount, if included in such price, of any export tax, duty, or other charge imposed by the exporting country on the exportation of the subject merchandise to the United States". 19 U.S.C. §1677a(c). Commerce's stated practice in determining such reductions is to adjust EP or CEP for the amount of any (irrecoverable) value-added tax ("VAT") in certain NME countries, in accordance with 19 U.S.C. §1677a(c). See Methodological Change for Implementation of Section 772(c)(2)(B) of the Tariff Act of 1930, as Amended, in Certain Non-Market Economy Antidumping Proceedings, 77 Fed. Reg. 36481 (June 19, 2012) ("Methodological Change"), 36482. Commerce stated that in accordance with this practice, it would reduce a respondent's EP or CEP accordingly by the amount of the tax, duty, or other charge paid, but not rebated. Id.; see also IDM at 5-6. Specifically, for the Final Results Commerce stated:
IDM at 5-6. Commerce determined that Golden Dragon, a bonded processor, used both imported and domestically sourced copper to produce subject merchandise. Id. at 7; see Supp. Questionnaire Response (July 10, 2014) ("SQR1"), 13; see Section D Resp. at Exs. D5-D6; see also SQR at Exs. SD-15. Golden Dragon averred in its administrative submissions that it would be liable to pay VAT on domestically sourced copper, even if this copper was used to produce subject merchandise destined for the United States. See IDM at 7-8; see also SQR1 at 13. Commerce further determined that Golden Dragon was unable to sufficiently demonstrate that only raw materials imported under bond, i.e. those materials exempt from the VAT, were used in the production of subject merchandise. IDM at 8; see Sec. D Resp. at Ex. D-2; see also SQR1 at Ex. SD3. Commerce stated that it required that a respondent substantiate any claimed exemption to the PRC VAT regulations according to those regulations. IDM at 7. Commerce further explained that Golden Dragon took contradictory positions during the hearing held on the issue; Golden Dragon asserted during the hearing that both domestically sourced and imported copper would be exempt from VAT, and further argued that it was exempt from the VAT because a greater quantity of exempt material was brought into the bonded facility than was exported to the United States. Id. at 7-8. Both of these assertions, Commerce stated, stand in opposition to record evidence on irrecoverable VAT and the purchase and inventory records provided by Golden Dragon. Id. Finally, Commerce determined that Golden Dragon only selectively translated the relevant VAT regulations, despite Commerce's request for the regulations to be fully translated. Id. at 8. Ultimately, Commerce "continued to adjust U.S. price by the amount of irrecoverable VAT (i.e., four percent) . . . because Golden Dragon has provided no evidence or support for adjusting these rate[s] for the consumption of in-bond material pursuant to the PRC VAT regulations." Id.
Golden Dragon does not argue with the fundamental rationale behind reducing the EP or CEP by the percentage of irrecoverable VAT, see Def.'s Resp. at 8; instead, Golden Dragon's claim is that the PRC's VAT is not included in the price of its exported merchandise not merely as a matter of law but as a matter of fact, as Golden Dragon is exempt from paying the VAT on the copper cathode it imports, under bond, into its bonded processing facility. See generally Pl's Br. at 3-6. Golden Dragon supports its claim of exempt status with a translated copy of its exemption declaration from PRC Customs, effective from December 2012 through June 2014, covering the POR. SQR1 at Ex. SC-11. According to Golden Dragon, this declaration shows that its import and export value have been "written off" by PRC Customs, and that its import and export status is "free", meaning that no VAT was owed or collected upon Golden Dragon's...
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