Juancheng Kangtai Chem. Co. v. United States, 2018-2298

• Citation: 932 F.3d 1321
• Decision Date: 15 July 2019
• Docket Number: 2018-2298
• Parties: JUANCHENG KANGTAI CHEMICAL CO., LTD., NAC Group Limited, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

932 F.3d 1321

JUANCHENG KANGTAI CHEMICAL CO., LTD., NAC Group Limited, Plaintiffs-Appellants
v.
UNITED STATES, Defendant-Appellee

2018-2298

United States Court of Appeals, Federal Circuit.

Sealed Opinion Issued: July 15, 2019
Public Opinion Issued: August 7, 2019^*

Gregory S. Menegaz, DeKieffer & Horgan, PLLC, Washington, DC, argued for plaintiffs-appellants. Also represented by James Kevin Horgan, Alexandra H. Salzman.

Sonia Marie Orfield, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Joseph H. Hunt, Jeanne Davidson, Patricia M. McCarthy ; Catherine D. Miller, Office of Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

Before Reyna, Wallach, and Taranto, Circuit Judges.

Wallach, Circuit Judge.

Appellants Juancheng Kangtai Chemical Co., Ltd. ("Kangtai Chemical") and NAC Group Limited ("NAC") (together, "Kangtai") appeal from the opinion and order of the U.S. Court of International Trade ("CIT") dismissing its complaint. The CIT held, inter alia, that it lacked jurisdiction under 28 U.S.C. § 1581(i) (2012) to consider three counts raised in Kangtai's Complaint relating to certain antidumping duties. See Juancheng Kangtai Chem. Co. v. United States (Kangtai ), 322 F. Supp. 3d 1351, 1356 (Ct. Int'l Trade 2018). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.

BACKGROUND

I. Legal Framework

By statute, antidumping duties may be imposed on "foreign merchandise ... being, or ... likely to be, sold in the United States at less than its fair value." 19 U.S.C. § 1673 (2012).¹ Following an investigation into imposition of antidumping duties, if the U.S. Department of Commerce ("Commerce") and the U.S. International Trade Commission have made the requisite findings, Commerce "shall publish an antidumping duty order" directing

932 F.3d 1324

U.S. Customs and Border Protection ("Customs") officers to assess duties on imports of goods covered by the investigation. Id. § 1673e(a); see id. §§ 1673, 1673a, 1677(1). Each year after the order is published, if Commerce receives a request for an administrative review of the antidumping duty order, it shall conduct such a review. Id. § 1675(a)(1)(B).

When conducting these reviews, Commerce typically must "determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise." 19 U.S.C. § 1677f-1(c)(1) ; see Viet I-Mei Frozen Foods Co. v. United States , 839 F.3d 1099, 1101 (Fed. Cir. 2016) (explaining that, when "it is not practical to determine individual rates for each" exporter or producer, "Commerce generally selects a subset of companies for mandatory review and determines an individual dumping rate for each of those mandatory respondents"). "A dumping margin reflects the amount by which the 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." SolarWorld Ams., Inc. v. United States , 910 F.3d 1216, 1220 (Fed. Cir. 2018) (internal quotation marks, footnote, and citation omitted); see 19 U.S.C. § 1677(35)(A).²

The statute explains how "normal value shall be determined" "[i]n order to achieve a fair comparison with the export price or constructed export price." 19 U.S.C. § 1677b(a). Relevant here, Commerce has found the People's Republic of China ("China") is a nonmarket economy country. See SolarWorld , 910 F.3d at 1220 n.3. A "nonmarket economy country" is "any foreign country that [Commerce] determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise." 19 U.S.C. § 1677(18)(A). "In antidumping duty proceedings involving merchandise from a non-market economy, ... Commerce presumes that all respondents are government-controlled and[,] therefore[,] subject to a single country-wide rate," unless respondents "rebut this presumption" to demonstrate eligibility for separate rates, i.e., "individual dumping margins ... for each known exporter or producer." Dongtai Peak Honey Indus. Co. v. United States , 777 F.3d 1343, 1349–50 (Fed. Cir. 2015) (footnote omitted) (citing, inter alia, 19 U.S.C. § 1677f-1(c)(1) ).

II. Procedural History

In 2005, Commerce published an antidumping duty order on chlorinated isocyanurates ("subject merchandise") from China. Chlorinated Isocyanurates from the People's Republic of China (AD Order ), 70 Fed. Reg. 36,561, 36,561–62 (Dep't of Commerce June 24, 2005) (antidumping duty order).³ Related to this appeal, Commerce

932 F.3d 1325

conducted its ninth administrative review ("AR 9") of the AD Order , covering the period of review ("POR") from June 1, 2013, through May 31, 2014, and tenth administrative review ("AR 10"), covering the POR from June 1, 2014, through May 31, 2015. See Chlorinated Isocyanurates from the People's Republic of China (AR 10 Final Results ), 82 Fed. Reg. 4852, 4852 (Dep't of Commerce Jan. 17, 2017) (final admin. review); Chlorinated Isocyanurates from the People's Republic of China (AR 9 Final Results ), 81 Fed. Reg. 1167, 1167 (Dep't of Commerce Jan. 11, 2016) (final admin. review). In the AR 9 Final Results , Commerce assigned Kangtai Chemical, which had been selected by Commerce as a mandatory respondent, a 0% antidumping duty margin. 81 Fed. Reg. at 1168. In the AR 10 Final Results , Commerce assigned Kangtai Chemical, which again had been selected by Commerce as a mandatory respondent, an antidumping duty margin of 35.05%. 82 Fed. Reg. at 4852. Regarding both AR 9 and AR 10, Commerce explained that for the exporters individually reviewed, such as Kangtai Chemical, Commerce would require cash deposits at the antidumping duty margin rate calculated, but that "for all [Chinese] exporters of subject merchandise that have not been found to be eligible for a separate rate, the cash deposit rate will be the [China]-wide rate of 285.63[%]." AR 10 Final Results , 82 Fed. Reg. at 4853 ; AR 9 Final Results , 81 Fed. Reg. at 1168.

Following the AR 9 Final Results , in which Kangtai received a zero percent antidumping duty margin, Commerce issued liquidation instructions to Customs. See J.A. 101–04. The AR 9 liquidation instructions ordered Customs to assess a rate of $0.00 per metric ton on all shipments of subject merchandise "exported by [Kangtai Chemical], imported by or sold to" NAC, "and entered , or withdrawn from warehouse, for consumption during the period 06/01/2013 through 05/31/2014," which is the POR covered by AR 9. J.A. 102 (emphasis added). The AR 10 liquidation instructions similarly set liquidation rates in U.S. dollars per metric ton for shipments of subject merchandise based on the margins calculated in the AR 10 Final Results "exported by [Kangtai Chemical], imported by or sold to [specified purchasers, not including NAC], and entered, or withdrawn from warehouse, for consumption during the period 06/01/2014 through 05/31/2015." J.A. 106 For entries made during the POR associated with AR 10 "not covered" by the above instruction in the AR 10 liquidation instructions (thereby including exports by Kangtai Chemical imported by NAC), Commerce instructed Customs to "assess antidumping duties at the [China]-wide rate" of 285.63%. J.A. 106.

In October 2017, Kangtai filed its Complaint against the Government. J.A. 58. Kangtai asserted jurisdiction pursuant to § 1581(i)(2) and (i)(4). J.A. 59. According to Kangtai, Commerce improperly instructed Customs to assess an antidumping duty margin on eighteen of Kangtai's subject merchandise entries at a rate higher than the zero percent rate calculated for Kangtai's entries in the AR 9 Final Results . See J.A. 58, 63. Kangtai alleged that it made "sales [that] were invoiced at the end of" the POR associated with AR 9, but that the subject merchandise "entered the United States in the subsequent review," i.e., during the POR associated with AR 10. J.A. 58. According to Kangtai, Commerce "liquidated eleven of these entries," but seven remained unliquidated. J.A. 63. Kangtai alleged, inter alia, that: (1) Commerce "acted contrary to law when it assessed individual sales [at] an [antidumping duty] rate that was higher than the rate calculated upon individual review" in AR 9, J.A. 63–64 (Count I); (2) Commerce's

932 F.3d 1326

"decision to treat the sales as if they were made by the [China-wide entity] is unsupported by substantial evidence" because "those sales were made by Kangtai," J.A. 64 (Count II); and (3) Commerce's "decision that the NAC entries were not reviewed merely because they entered in the POR subsequent to the AR in which they were reviewed was unsupported by substantial evidence as well as arbitrary and capricious," J.A. 64 (Count III).⁴

The CIT held it lacked jurisdiction under § 1581(i). Kangtai , 322 F. Supp. 3d at 1356. The CIT explained "Kangtai cannot make out a [§] 1581(i) claim as the essence of its challenge remains directed at Commerce's use of sales and entries in its antidumping duty calculations," and this type of claim is properly brought under a different jurisdictional provision, specifically § 1581(c). Id. at 1358. It...