Zhaoqing New Zhongya Aluminum Co. v. United States

• Decision Date: 19 July 2013
• Docket Number: Slip Op. 13–83.,Court No. 11–00181.
• Citation: 929 F.Supp.2d 1324
• Parties: ZHAOQING NEW ZHONGYA ALUMINUM CO., LTD. and Zhongya Shaped Aluminum (HK) Holding Ltd., Plaintiffs, and Evergreen Solar, Inc., Plaintiff–Intervenor, v. UNITED STATES, Defendant, and Aluminum Extrusions Fair Trade Committee, Defendant–Intervenor.
• Court: U.S. Court of International Trade

929 F.Supp.2d 1324

ZHAOQING NEW ZHONGYA ALUMINUM CO., LTD. and Zhongya Shaped Aluminum (HK) Holding Ltd., Plaintiffs,andEvergreen Solar, Inc., Plaintiff–Intervenor,

v. UNITED STATES, Defendant,andAluminum Extrusions Fair Trade Committee, Defendant–Intervenor.

Slip Op. 13–83. Court No. 11–00181.

United States Court of International Trade.

June 27, 2013.

As Amended July 19, 2013.

Peter J. Koenig, Squire Sanders LLP, of Washington, DC, for Plaintiffs Zhaoqing New Zhongya Aluminum Co., Ltd., and Zhongya Shaped Aluminum (HK).

Craig A. Lewis and Theodore C. Weymouth, Hogan Lovells LLP, of Washington, DC, for the Plaintiff–Intervenor, Evergreen Solar, Inc.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the briefs was Joanna Theiss, Attorney, Office of the Chief Counsel for the Import Trade Administration, U.S. Department of Commerce, of Washington, DC.

Alan H. Price, Derick G. Holt, Laura El–Sabaawi, Maureen E. Thorson, Robert E. DeFrancesco, III, Wiley Rein LLP, of Washington, DC and Stephen A. Jones, Gilbert B. Kaplan, and Daniel L. Schneiderman, King & Spalding LLP, of Washington, DC, for Defendant–Intervenor, Aluminum Extrusions Fair Trade Committee.

OPINION

POGUE, Chief Judge:

In this action, Plaintiffs, producers and importers of extruded aluminum seek review of two aspects of Commerce's calculations of countervailing duties on certain aluminum extrusions from the People's Republic of China (“PRC” or “China”). See Aluminum Extrusions from the People's Republic of China, 76 Fed.Reg. 18,521 (Dep't Commerce Apr. 4, 2011) (final affirmative CVD determination) (“Final Determination”) and accompanying Issues and Decision Memorandum (“ I & D Memo ”). Plaintiffs first challenge Commerce's inclusion of import duties in its calculation of a world market price for use as the benchmark for determining the benefit received from government-supplied primary aluminum. Plaintiffs also challenge Commerce's finding that a plot of land acquired by New Zhongya (hereinafter “Zhongya”) was, at the time of acquisition, comparable to a fully developed Thai industrial park. For the reasons stated below, the court finds that Commerce's inclusion of import duties was in accordance with law, but that Commerce's finding that the land leased by Zhongya in 2006 was, at the time the land use rights were acquired, comparable to a fully developed industrial park was not supported by a reasonable reading of the evidence of record. Therefore, Commerce's Final Determination is affirmed in part and remanded in part.

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c).¹

BACKGROUND

In its 2010 investigation of certain extruded aluminum products from the PRC, Commerce determined that countervailing duties (“CVDs”) were appropriate to offset subsidies provided to Chinese producers of extruded aluminum. See Aluminum Extrusions from the People's Republic of China, 76 Fed.Reg. 30,653 (Dep't Commerce May 26, 2011) (CVD order). Specifically, during the investigation, Commerce found that the respondents received financial contributions in the form of primary aluminum inputs supplied by companies that were government authorities. I & D Memo cmt. 21 at 96. In deciding whether these financial contributions conferred a benefit, Commerce selected an appropriate benchmark against which to measure the adequacy of the price paid for government-supplied primary aluminum. Id. When selectingthe appropriate benchmark, Commerce found that actual transaction prices within the PRC were “significantly distorted” due to a high percentage of state owned enterprises in the market, and chose to use the world market price as the appropriate benchmark. Id. In calculating the world market prices, and in accordance with its regulations, Commerce included applicable delivery charges and import duties. 19 C.F.R. § 351.511(2)(iv). Plaintiffs challenge this calculation, arguing that the inclusion of import duties was improper because Plaintiffs paid no duties on their imports of primary aluminum from Hong Kong.

Commerce also investigated allegations that China provided land-use rights for less than adequate renumeration to aluminum extrusion producers and concluded that provision of such land-use rights constituted a countervailable subsidy. I & D Memo cmt. 24. As with the supplies of primary aluminum, Commerce sought to find an appropriate benchmark to determine whether the respondents received any benefit. Commerce selected the purchase price of a fully developed industrial park in Bangkok, Thailand, as the benchmark and found that when compared to a land-use lease signed by Zhongya in 2006, Zhongya received a benefit. Id. at cmt. 24. Plaintiffs also seek judicial review of this determination, arguing that the record as a whole shows that the price Zhongya paid in 2006 was for land that contained no infrastructure and required significant improvements before manufacturing could occur, and therefore the purchase price of a fully developed industrial park is not a comparable benchmark. Id.

STANDARD OF REVIEW

The court will sustain Commerce's “determination[s], finding[s], or conclusion[s]” unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). To be in accordance with law, the agency's decision must be authorized by the statute, and consistent with the agency's regulations. See, e.g., Hontex Enter., Inc. v. United States, 27 CIT 272, 293, 248 F.Supp.2d 1323, 1340 (2003). When reviewing agency determinations, findings, or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed.Cir.2006).

DISCUSSION

I. Import Duties

Plaintiffs first challenge Commerce's inclusion of import duties in its benchmark calculation when it investigated Chinese producers imports of primary aluminum. Specifically, Plaintiffs assert that because they paid no import duties on imports of primary aluminum from Hong Kong, Commerce's inclusion of import duties improperly inflates the benchmark value used to determine the value of this benefit.² Plaintiffs claim that when, as here, Commerce uses world market prices, it errs in including import duties in its calculations.

19 C.F.R. § 351.511(a)(2) describes Commerce's methodology for calculating benefits received. Generally, Commerce compares the government price to the actual market price for the good or service received. 19 C.F.R. § 351.511(a)(2)(i). This is commonly referred to as a “tier-one benchmark.” See also I & D Memo cmt. 21 at 96 (noting that a tier-one benchmark is preferred to a tier-two benchmark). However, should Commerce determine, as it did here, that “there is no usable market-determined price” to use as the benchmark, then it proceeds to the second tier benchmark, the world market price. See19 C.F.R. § 351.511(a)(2)(ii); I & D Memo cmt. 20 at 94 (deciding that distortion in the PRC market makes tier-one pricing unusable as a benchmark). The regulation is specific in stating that when using the world market price, Commerce is to include delivery charges and import duties in its calculations. 19 C.F.R. § 351.511(a)(2)(iv) (“[Commerce] will adjust the comparison price to reflect the price that a firm actually paid or would pay if it imported the product. This adjustment will include delivery charges and import duties.”)

Here, Commerce found that the “market for primary aluminum is significantly distorted by the presence of companies determined to be government authorities” and that the preferred tier-one benchmark was therefore unusable. I & D Memo cmt. 21 at 94, 96. Pursuant to its regulation, Commerce then proceeded to use tier-two pricing, the world market price, as a benchmark price and adjusted it to include delivery charges and import duties. I & D Memo cmt. 20 at 94; 19 C.F.R. § 351.511(a)(2)(iv).

Plaintiffs challenge the inclusion of import duties, claiming that the regulation calls for adjusting the tier-two benchmark to reflect what a firm actually paid or would pay, and that because they paid no import duties, the tier-two benchmark impermissibly includes such duties. But Plaintiffs' understanding of the regulations is flawed. As the government notes, both in its I & D Memo and before the court, Plaintiffs are asking for a “company-specific, tier-one benchmark” but have failed to challenge Commerce's finding that tier-one pricing is unavailable. Def.'s Opp'n to Pls.' Mot. For J. on the Agency R., ECF No. 53 at 11–12 (“Gov't Br.”). Therefore, Commerce's decision that tier-one pricing is unusable, and the consequent use of the tier-two pricing, the world market price, as a reasonable benchmark is well grounded in the applicable regulations. Accordingly, because the world market price by regulation must include import duties, Commerce's decision to include such import duties in its calculation of the benchmark is reasonable and in accordance with law.³See Hontex, 27 CIT at 292–93, 248 F.Supp.2d at 1340–41.

II. Land Use Benchmark

Plaintiffs next claim that Commerce's selection of a fully developed industrial park purchase price in Bangkok, Thailand as the land purchase price benchmark is not comparable to Zhongya's 50 year lease of wholly undeveloped land.

Plaintiffs refer to numerous citations to the record which show that, from the beginning of the investigation, it has maintained that the land leased by Zhongya was completely undeveloped and required significant development, such as infrastructure for water and electricity, before it could be used as a production facility. See Pls.' Mot. For J. on the Agency R., ECF No. 44 at 5 n. 11 (“Pls.' Br.”...