Solianus, Inc. v. United States

391 F.Supp.3d 1331

SOLIANUS, INC. and Consolidated Fibers, Inc., Plaintiffs,

v. UNITED STATES, Defendant,andDAK Americas LLC, Nan Ya Plastics Corporation, America and Auriga Polymers Inc., Defendant-intervenors.

Slip Op. 19-77

Court No. 18-00179

United States Court of International Trade.

June 21, 2019

Gregory S. Menegaz, J. Kevin Horgan, Alexandra H. Salzman, deKeiffer & Horgan, PLLC, of Washington, D.C., for plaintiffs.

Kelly Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Kristen McCannon, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

Paul C. Rosenthal, David C. Smith, Kathleen M. Cusack, Kelley Drye & Warren LLP, of Washington, D.C., for defendant-intervenors.

OPINION AND ORDER

Goldberg, Senior Judge

Plaintiffs Solianus, Inc. ("Solianus") and Consolidated Fibers, Inc. ("Consolidated") (collectively "Plaintiffs") challenge the final results issued by the U.S. Department of Commerce ("Commerce" or "the Department") in its administrative review of the antidumping duty on fine denier polyester staple fiber from the Republic of Korea ("Korea"). See Fine Denier Polyester Staple Fiber from the Republic of Korea: Final Affirmative Determination of Sales at Less Than Fair Value , 83 Fed. Reg. 24,743 (Dep't Commerce May 30, 2018) (final determ.) (" Final Determination ") and accompanying Issues & Decisions Mem. (Dep't Commerce May 23, 2018) ("I & D Mem."). Plaintiffs challenge the Department's "all-others" antidumping duty rate assigned to all non-investigated Korean producers and exporters in the Final Determination .

On review of Plaintiffs' motion for judgment on the agency record, Pls.' Mot. for J. on Agency R., ECF No. 24 (Jan. 17, 2019) ("Pls.' Br."), the court sustains Commerce's methodology in calculating the all-others antidumping duty rate of 30.15 percent.

BACKGROUND

Commerce initiated an antidumping duty investigation of fine denier polyester staple fiber from Korea in June 2017. See Fine Denier Polyester Staple Fiber from the People's Republic of China, India, the Republic of Korea, Taiwan, and the Socialist Republic of Vietnam: Initiation of Less-Than-Fair-Value Investigations , 82 Fed. Reg. 29,023 (Dep't Commerce June 27, 2017) (initiation). The period of investigation ran from April 1, 2016 through March 31, 2017. Id. On July 31, 2017, Commerce selected Down Nara Co. ("Down Nara") and Huvis Corporation ("Huvis") as mandatory respondents for this investigation and issued both companies antidumping questionnaires. See Selection of Resp'ts Mem., Joint Appendix, ECF No. 30 ("J.A.") (May 2, 2019) Tab 9 (July 31, 2017). Toray Chemical Korea Inc. ("TCK") requested to be examined as a voluntary respondent. TCK Request for Voluntary Resp't Selection, J.A. Tab 12 (Aug. 7, 2017). Immediately thereafter, Huvis informed Commerce that it did not intend to participate in the investigation. Huvis's Notice of Intent Not to Participate, J.A. Tab 13 (Aug. 10, 2017). The Department then selected TCK as a third mandatory respondent. See Selection of an Add'l Mandatory Resp't Mem., J.A. Tab 15 (Aug. 18, 2017). The Department did not elect to replace any other mandatory respondent for individual investigation. Commerce issued questionnaires to both Down Nara and TCK. I & D Mem. at 13, 21. Down Nara never responded to the Department's questionnaire.

In its Preliminary Determination, Commerce found that Down Nara and Huvis failed to cooperate to the best of their ability under 19 U.S.C. § 1677e(b) and assigned them each a rate of 45.23 percent, based on total adverse facts available (AFA). See Fine Denier Polyester Staple Fiber from the People's Republic of Korea: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures , 83 Fed. Reg. 660 (Dep't Commerce Jan. 5, 2018) (prelim. determ.) (" Preliminary Determination ") and accompanying Prelim. Decision Mem., J.A. Tab 5 (Dec. 18, 2017) ("PDM"). TCK received a de minimis rate and Commerce preliminary calculated an all-others rate of 30.15 percent, reflecting an average of the rates assigned to all three mandatory respondents. See PDM at 11 ("[W]e preliminarily determine that it is reasonable to calculate the all-others rate based on a simple average of the zero percent dumping margin and the two dumping margins based totally on AFA."). Commerce did not make any major changes to these rates in its Final Determination and continued to assign the average rate of 30.15 percent from all three mandatory respondents to all-others rate companies, including Plaintiffs. Plaintiffs (Solianus and Consolidated Fibers) are Korean exporters of fine denier polyester staple fiber not individually investigated.

Today, Plaintiffs raise a challenge before this court concerning the Department's all-others rate assignment. See generally Pls.' Br. Specifically, Plaintiffs claim that because two of the mandatory respondents (Down Nara and Huvis) did not participate in the investigation, they were not "individually investigated" within the meaning of 19 U.S.C. § 1673d(c)(1)(B)(i), and therefore, should not be included in Commerce's calculation. As a result, Plaintiffs maintain that Commerce's all-others rate was improperly calculated. Id. at 8. Instead, Plaintiffs argue, Commerce should have calculated the all-others rate using only TCK's de minimis margin. Id. at 8–9. The Government defends the Department's position as consistent with the Federal Circuit's interpretation of an "individually investigated" respondent. See generally Def.'s Resp. to Pls.' Mot., ECF No. 28 (Mar. 22, 2019) ("Def.'s Br.").¹

Ultimately, the Department's methodology in calculating the all-others rate was legally sound and did not produce an unfair result. The court upholds the resulting 30.15 percent all-others antidumping rate assigned to Plaintiffs.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c) and will sustain Commerce's determinations 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).

DISCUSSION

Pursuant to 19 U.S.C. § 1673d(a)(1), Commerce is required to make a final determination of whether certain merchandise is sold in the United States at less than its fair value. In so doing, the antidumping duty law generally requires that Commerce establish an antidumping duty margin for each exporter for which review is requested. Specifically, the Department must (i) determine the estimated weighted average dumping margin for each exporter and producer individually investigated; and (ii) determine the estimated all-others rate for all exporters and producers not individually investigated. § 1673d(c)(1)(B)(i).

Because it would be practically impossible to examine all producers and exporters of all relevant merchandise, the statute contains a built-in all-others rate calculation—which allows Commerce to assign an antidumping rate to non-investigated firms. Section 1673d(c)(5) governs the method for determining the all-others rate. Generally, the estimated all-others rate is equal to the weighted average of the estimated weighted average dumping margins for exporters and producers that were individually investigated, excluding any zero or de minimis margins, or margins based entirely upon facts available. § 1673d(c)(5)(A). However—foreshadowing the issue at hand—the statute also recognizes an exception to the general rule for calculating all-others rates: if all margins are zero, de minimis , or based entirely on facts available, the statute permits Commerce to use "any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated." Id. According to the Statement of Administrative Action accompanying the Uruguay Round Agreements Act, the "expected method in such cases will be to weight-average the zero and de minimis margins and margins determined pursuant to facts available." See Statement of Administrative Action, H.R. Doc. No. 103–316 (1994), at 873 reprinted in 1994 U.S.C.C.A.N. 4040, 4201 ("SAA")² . But, "if this method is not feasible ... Commerce may use other reasonable methods." Id.

Here, Commerce had assigned two of the mandatory respondents (Down Nara and Huvis) total AFA because they refused to participate in the investigation, and the remaining mandatory respondent, TCK, received a de minimis rate—thereby triggering the "exception" under section 1673d(c)(5). Commerce then calculated the all-others rate by averaging the rates assigned to these three respondents, including the AFA rates assigned to Down Nara and Huvis. I & D Mem. at 14–18. Plaintiffs challenge the Department's methodology because "it does not rely upon the margin calculated for the only individually investigated exporter for purposes of determining the all-others rate for Solianus." Pls.' Br. at 8. Implicit in (and integral to) Plaintiffs' argument, however, is the claim that because Down Nara and Huvis failed to participate in the investigation, the only "individually investigated" exporter was TCK—which received a de minimis rate. Essentially, Plaintiffs assert, a company cannot be "individually investigated" unless it places some information on the record for Commerce to actually examine. Moreover, according to Plaintiffs, Commerce abandoned the "expected method" of calculating the separate rate (that is, weight-averaging the margins) without first establishing that the method was not "feasible" or would result in a margin that is not "reasonably reflective of potential dumping margins." Pls.' Br. at 8–9. Ultimately, Plaintiffs request that...