GPX Int'l Tire Corp. v. United States

70 F.Supp.3d 1266

GPX INTERNATIONAL TIRE CORPORATION and Hebei Starbright Tire Co., Ltd., PlaintiffsTianjin United Tire & Rubber International Co., Ltd., Consolidated Plaintiff

v. UNITED STATES, DefendantandBridgestone Americas, Inc., Bridgestone Americas Tire Operations, LLC, Titan Tire Corporation, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC, Defendant–Intervenors.

Slip Op. 15–46.

Court No. 08–00285.

United States Court of International Trade.

May 18, 2015.

Mark B. Lehnardt, Lehnardt & Lehnardt, LLC, of Liberty, MO, for consolidated plaintiff Tianjin United Tire & Rubber International Co., Ltd.Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief were Daniel J. Calhoun, Senior Counsel, and Devin S. Sikes, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Elizabeth J. Drake, Terence P. Stewart, and Philip A. Butler, Stewart and Stewart, of Washington, DC, for defendant-intervenor Titan Tire Corporation.

OPINION AND ORDER

RESTANI, Judge:

The U.S. Department of Commerce (“Commerce”) is attempting to collect cash deposits at a rate the court has already determined to be invalid. Consolidated plaintiff, Tianjin United Tire & Rubber International Co., Ltd. (“TUTRIC”), brings the current motion for enforcement of the court's judgment entered October 30, 2013, and argues that under either the court's inherent power to enforce its judgments or through a writ of mandamus, the court should compel defendant, the United States, by and through its executive administrative agency, Commerce, to issue a corrected notice required by 19 U.S.C. § 1516a (2012) (also referred to as a “Timken Notice”).¹ TUTRIC asks that the Timken Notice state an intent to instruct U.S. Customs and Border Protection (“CBP”) to require cash deposits for estimated countervailing duties (“CVD”) at 3.93% for TUTRIC's merchandise subject to the CVD order on Off–the–Road Tires from the People's Republic of China, Certain New Pneumatic Off–the–Road Tires From the People's Republic of China: Countervailing Duty Order, 73 Fed.Reg. 51,627 (Dep't Commerce Sept. 4, 2008) (“OTR CVD Order ”), and compelling CBP to refund excess cash deposits collected after October 30, 2013. The government argues that under the Final Results of Redetermination Pursuant to Remand, ECF No. 394 (“Remand Results ”), sustained by the court, Commerce properly ordered CBP to collect cash deposits at the 6.85% rate set in the intervening Implementation of Determinations Under Section 129 of the Uruguay Round Agreements Act: Certain New Pneumatic Off–the–Road Tires; Circular Welded Carbon Quality Steel Pipe; Laminated Woven Sacks; and Light–Walled Rectangular Pipe and Tube From the People's Republic of China, 77 Fed.Reg. 52,683 (Dep't Commerce Aug. 30, 2012) (“Section 129 Implementation ”), for all entries entered or withdrawn from the warehouse for consumption on or after August 21, 2012.

The Remand Results reduced TUTRIC's CVD rate to 3.93%, which is inconsistent with Commerce's decision to continue to require cash deposits at almost double that rate. Further, TUTRIC did not have notice of Commerce's intent to interpret the Section 129 Implementationas rendering moot any court determination of a new cash deposit rate sufficient to warrant denying TUTRIC's current motion. Additionally, defendant-intervenor Titan Tire Corporation (“Titan”), the party with potentially the most to lose from a reduction in TUTRIC's CVD rate, will not be prejudiced by enforcing the court's order. The court has the authority to interpret its own orders. The words of the Remand Results and the context demonstrate that the effect of the court's sustaining of the Remand Results was not, as Commerce contends, to sustain the use of an erroneous 6.85% cash deposit rate for TUTRIC, but rather to set the rate for TUTRIC at 3.93%, as determined in the Remand Results. Accordingly, Commerce shall issue a revised Timken Notice setting the cash deposit rate for TUTRIC at 3.93%.

BACKGROUND

The court presumes familiarity with the facts of the underlying case as set out in GPX International Tire Corp. v. United States, 942 F.Supp.2d 1343, 1347–48 (CIT 2013) (“GPX VIII ”), and GPX International Tire Corp. v. United States, 893 F.Supp.2d 1296, 1304–06 (CIT 2013) (“GPX VII ”), aff'd, 780 F.3d 1136 (Fed.Cir.2015). For ease of understanding, however, a brief summary is provided below.

On September 4, 2008, Commerce issued a CVD order on OTR Tires from China. OTR CVD Order, 73 Fed.Reg. 51,627. Plaintiffs challenged the order at the United States Court of International Trade (“CIT”) on several grounds, including Commerce's determination that TUTRIC was subsidized because it did not repay certain government loans. During the pendency of the domestic litigation, the Government of China brought a case against the United States at the World Trade Organization (“WTO”) challenging the applicability of the United States' CVD law to China. See Appellate Body Report, United States—Definitive Anti–Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R (Mar. 11, 2011). The Appellate Body eventually issued a ruling that the United States was out of compliance with its WTO obligations on four issues: 1) benchmarks for loan benefits, 2) trading companies, 3) public bodies, and 4) double counting. See id. at ¶ 611; Section 129 Implementation, 77 Fed.Reg. at 52,683 –84. After conferring with Congress, the U.S. Trade Representative (“USTR”) instructed Commerce to implement the WTO's ruling under Section 129 of the Uruguay Round Agreements Act, Pub.L. No. 103–465, § 129, 108 Stat. 4809, 4836–39 (1994) (“Section 129”). Section 129 Implementation, 77 Fed.Reg. at 52,684. Commerce issued the Section 129 Implementation on August 30, 2012.

The Section 129 Implementation specifically stated that as per USTR's instruction, it was

to implement its determinations under section 129 of the Uruguay Round Agreements Act (“URAA”) regarding the antidumping and countervailing duty investigations on certain new pneumatic off-the-road tires (“OTR Tires”) from the ... PRC ... which renders them not inconsistent with the [WTO] dispute settlement findings in United States—Definitive Anti–Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R (March 11, 2011) (“DS 379”).

Id. at 52,683. The Section 129 Implementation also stated that when Commerce informed the interested parties that it was initiating proceedings under Section 129 on August 22, 2011, that it was doing so “to implement the findings of the WTO dispute settlement panel in DS 379 with regard to the [CVD] investigations on OTR Tires.” Id. TUTRIC's “revised” CVD cash deposit rate in the Section 129 Implementation was identical to that set in the OTR CVD Order, namely 6.85%.² Id. at 52,685 ; see OTR CVD Order, 73 Fed.Reg. at 51,629. Both the Section 129 Implementation as well as the original OTR CVD Order also set a rate for “All Others.” Section 129 Implementation, 77 Fed.Reg. at 52,685 ; OTR CVD Order, 73 Fed.Reg. at 51,629. Although it had referred to the “new” rates set in the Section 129 Implementation as “amended” and “revised,” Commerce stated its intention to apply the “appropriate” cash deposit rates prospectively as mandated by Section 129. Section 129 Implementation, 77 Fed.Reg. at 52,688. It did not specify that those “appropriate” rates were the “amended” or “revised” rates calculated in the Section 129 Implementation, or for that matter “unamended” or “unrevised” rates, such as TUTRIC's.

All the while, TUTRIC continued to challenge a separate and distinct CVD rate calculation issue at the CIT, i.e., that certain non-recurring loans were improperly included when its rate was calculated because the loans had been partially repaid or were not a government benefit. See GPX VII, 893 F.Supp.2d at 1331–34. On remand, ordered four months after the publication of the Section 129 Implementation, Commerce determined that some of TUTRIC's loans in fact had been partially repaid and reduced its CVD rate accordingly to 3.93%. Remand Results at 30–31. On October 30, 2013, over a year after the publication of the Section 129 Implementation, the court sustained Commerce's Remand Results.³ GPX VIII, 942 F.Supp.2d at 1362. In the body of the Remand Results, after discussing the new rate for TUTRIC, Commerce indicated that “should the Court sustain [the] remand redetermination, the cash deposit rates in effect for subsequent entries will continue to be based on the intervening administrative review for Starbright and the intervening [Section 129 Implementation ] for all other respondents.” Remand Results at 50–51. Commerce did not say “all other respondents, including TUTRIC. ” None of the parties addressed the impact of the Section 129 Implementation on the court's ruling at oral argument where TUTRIC's rate was discussed in detail, nor did they comment on this issue following the Remand Results. See Mot. for Enforcement of the J. 8, ECF No. 433 (“Pl. Br.”); Def.'s Resp. in Opp'n to Consol. Pl.'s Mot. for Enforcement of the Ct.'s J. 6, 23, ECF No. 436 (“Gov. Br.”). On November 27, 2013, Commerce issued its Timken Notice and for the first time, explicitly stated that CBP was instructed to continue to collect CVD cash deposits from TUTRIC at 6.85%, claiming that the Section 129 Implementation had set a new rate for TUTRIC that was not impacted by the court's order sustaining the 3.93% rate. See Certain New Pneumatic Off–the–Road Tires From the People's Republic of China: Notice of Decision of the Court of International Trade Not in Harmony and...