JBF Rak LLC v. United States

• Decision Date: 24 June 2015
• Docket Number: No. 2014–1774.,2014–1774.
• Citation: 790 F.3d 1358
• Parties: JBF RAK LLC, Plaintiff–Appellant v. UNITED STATES, Defendant–Appellee Mitsubishi Polyester Film, Inc., Dupont Teijin Films, SKC, Inc., Defendants.
• Court: U.S. Court of Appeals — Federal Circuit

790 F.3d 1358

JBF RAK LLC, Plaintiff–Appellant

v. UNITED STATES, Defendant–AppelleeMitsubishi Polyester Film, Inc., Dupont Teijin Films, SKC, Inc., Defendants.

No. 2014–1774.

United States Court of Appeals, Federal Circuit.

June 24, 2015.

Jack Mlawski, Galvin & Mlawski, New York, N.Y., argued for plaintiff-appellant.

Melissa M. Devine, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Joyce R. Branda, Jeanne E. Davidson, Patricia M. McCarthy ; Devin S. Sikes, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC.

Before DYK, WALLACH, and HUGHES, Circuit Judges.

Opinion

WALLACH, Circuit Judge.

Appellant JBF RAK, LLC (“JBF RAK”) appeals the United States Court of International Trade's (“CIT”) decision sustaining the U.S. Department of Commerce's (“Commerce”) final results of the administrative review covering polyethylene terephthalate film (“PET Film”) from the United Arab Emirates (“UAE”) for the period of review from November 1, 2010 through October 31, 2011. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, 78 Fed.Reg. 29,700 (Dep't of Commerce May 21, 2013) (final results of antidumping duty administrative review; 2010–2011) (“Final Results”). For the reasons set forth below, we affirm.

Background

Commerce issued an antidumping duty order covering PET Film from UAE in November 2008. See Polyethylene Terephthalate Film, Sheet, and Strip from Brazil, the People's Republic of China, and the United Arab Emirates, 73 Fed.Reg. 66,595 (Dep't of Commerce Nov. 10, 2008) (antidumping duty orders and amended final determination of sales at less than fair value for the United Arab Emirates). JBF RAK is a manufacturer and exporter of PET Film from UAE, and pursuant to 19 U.S.C. § 1675(a)(1) (2006), on November 30, 2011, it requested that Commerce conduct an administrative review of the antidumping duty order for this period of review. Commerce initiated its review in December 2011. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 76 Fed.Reg. 82,268 (Dep't of Commerce Dec. 30, 2011) (initiation). However, before Commerce published its preliminary results, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray Plastics America, Inc. (collectively “domestic producers”) filed an allegation of targeted dumping¹ against JBF RAK on November 16, 2012. In that petition, the domestic producers argued Commerce should not use the average-to-average comparison method typically used in administrative reviews² because that method would not account for the price differences of JBF RAK's merchandise, and should instead use an average-to-transaction method of comparison.

On December 7, 2012, Commerce published its preliminary results and assigned JBF RAK a dumping margin of 5.31% using its average-to-average comparison methodology. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, 77 Fed.Reg. 73,010, 73,010 –11 & n. 5 (Dep't of Commerce Dec. 7, 2012) (preliminary results of antidumping duty administrative review; 2010–2011) (“Preliminary Results”). In its accompanying Preliminary Decision Memorandum, Commerce indicated it “did not have sufficient time to fully analyze [the targeted dumping issue] for purposes of these preliminary results” and that it would “address [the domestic producers'] targeted dumping allegation at a later date.” Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates A–520–803 (Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review) (Dep't of Commerce Nov. 30, 2012) (J.A. 123–31).

On March 8, 2013, Commerce published a post-preliminary determination addressing the domestic producers' allegation of targeted dumping. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, A–520–803 (Post–Preliminary Results Analysis Memo for JBF RAK LLC) (Dep't of Commerce Mar. 8, 2013) (J.A. 164–65) (“Post–Preliminary Determination”). Using an average-to-transaction comparison methodology, Commerce determined JBF RAK had engaged in targeted dumping and assigned it a revised dumping margin of 9.80%. After interested parties were invited to comment on Commerce's targeted dumping analysis, Commerce continued to apply the average-to-transaction comparison methodology and carried on the dumping margin of 9.80%. See Final Results, 78 Fed.Reg. at 29,700 –01.

JBF RAK appealed to the CIT, and in July 2014, that court denied JBF RAK's motion for judgment on the agency record. JBF RAK LLC v. United States, 991 F.Supp.2d 1343 (Ct. Int'l Trade 2014). Before the CIT, JBF RAK challenged, inter alia, Commerce's targeted dumping analysis, and disputed Commerce's authority to apply the average-to-transaction comparison method in administrative reviews. The CIT held that Commerce provided a legitimate explanation for applying the average-to-transaction method in the review, and sustained the Final Results.

JBF RAK appeals and this court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012).

Discussion

I. Standard of Review and Legal Framework

The court “review[s] a decision of the [CIT] evaluating an antidumping determination by Commerce by reapplying the statutory standard of review that the [CIT] applied in reviewing the administrative record.”Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1335 (Fed.Cir.2002). Thus, this court sustains “any determination, finding, or conclusion” made by Commerce 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) (2012).

The antidumping duty statute provides for the application of remedial duties to foreign goods sold, or likely to be sold, in the United States at less than fair value. Id. § 1673(1). A dumping margin is the amount by which “ ‘normal value’ (the price a producer charges in its home market) exceeds the ‘export price’ (the price of the product in the United States) or ‘constructed export price.’ ” U.S. Steel Corp. v. United States, 621 F.3d 1351, 1353 (Fed.Cir.2010) (quoting 19 U.S.C. § 1677(35)(A) ). Commerce calculates a “dumping margin” for each entry of subject merchandise that is under review. See 19 U.S.C. § 1675(a)(2)(A)(ii) (2006).

This court employs the two-part test articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) in reviewing Commerce's interpretation of the statute. We first look to “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “[I]f the statute is silent or ambiguous with respect to the specific issue,” we assess whether Commerce's “answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

II. Analysis

On appeal, JBF RAK claims Commerce: (1) unlawfully applied its targeted dumping methodology in the context of an administrative review; (2) improperly considered petitioners' allegation of targeted dumping; (3) unlawfully issued the Post–Preliminary Determination; and (4) failed to consider certain facts about JBF RAK's pricing practices in its targeted dumping determination. We address these arguments seriatim.

A. Commerce's Targeted Dumping Analysis Is Not Contrary to Law

JBF RAK's primary argument on appeal is that “Commerce improperly considered the targeting allegation by relying on the statutory provision for investigations.” Appellant's Br. 7. Specifically, JBF RAK asserts that 19 U.S.C. § 1677f–1(d)(1)(B)³ provides an “exception” to use an average-to-transaction comparison only in investigations, and it cannot be applied in administrative reviews. Id. at 6. That is, to JBF RAK, because Congress created an explicit exception in the statute for investigations but did not include one in the section relating to administrative reviews, Commerce is not able to use an “average-to-transaction” comparison in administrative reviews. The government counters that the CIT correctly held that Commerce's interpretation was reasonable and entitled to Chevron deference.

Under Chevron step one, this court first looks to “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. JBF RAK contends “the statute is not silent. The provision with respect to investigations creates an ‘exception’ and the provisions immediately after applicable to reviews, do not, and, thus, refute any asserted ambiguity or silence.” Appellant's Br. 8. Appellant's expressio unius est exclusio alterius line of reasoning fails. Section 1677f–1(d)(2) of Title 19 provides for calculating the dumping margin in administrative reviews; it does not, however, provide the specific methodology to make the comparison between normal value and the actual or constructed export price.See 19 U.S.C. § 1677f–1(d)(2). Thus, because Congress did not speak to the precise question at issue, we turn to Chevron step two: whether Commerce's interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

When a statute fails to make clear “any Congressionally mandated procedure or methodology for assessment of the statutory tests,” Commerce “may perform its duties in the way it believes most suitable.” U.S. Steel Grp. v. United States, 96 F.3d 1352, 1362 (Fed.Cir.1996).

Under Chevron, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843–44, 104 S.Ct. 2778.

Pursuant to 19 C.F.R. § 351.414(b) (2012), “[c]omparison of normal value...