Wilmar Trading Pte Ltd. v. United States

675 F.Supp.3d 1215

WILMAR TRADING PTE LTD., PT Wilmar Bioenergi Indonesia,and Wilmar Oleo North America LLC, Plaintiffs,andP.T. Musim Mas and Government of the Republic of Indonesia, Consolidated Plaintiffs, v. UNITED STATES, Defendant,andNational Biodiesel Board Fair Trade Coalition, Defendant-Intervenor.

Slip Op. 23-165 Consol. Court No. 18-00121

United States Court of International Trade

November 21, 2023

Devin S. Sikes, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, D.C., argued for Plaintiffs Wilmar Trading Pte Ltd., PT Wilmar Bioenergi Indonesia, and Wilmar Oleo North America LLC. With him on the brief was Bernd G. Janzen.

Lynn G. Kamarck, Hughes Hubbard & Reed LLP, of Washington, D.C., argued for Consolidated Plaintiff Government of the Republic of Indonesia. With her on the brief were Matthew R. Nicely and Julia K. Eppard.

Edmund W. Sim, Appleton Luff Pte Ltd., of Washington, D.C., argued for Consolidated Plaintiff P.T. Musim Mas. With him on the brief were Kelly A. Slater and Jay Y. Nee.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant the United States. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim, Assistant Director. Of counsel on the brief was Jessica R. DiPietro, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

Myles S. Getlan, Cassidy Levy Kent (USA) LLP, of Washington, D.C., argued for Defendant-Intervenor National Biodiesel Board Fair Trade Coalition. With him on the brief were Jeffery B. Denning, Jack A. Levy, Ulrika K. Swanson, and James E. Ransdell.

OPINION AND ORDER

Eaton, Judge:

Before the court is the U.S. Department of Commerce's ("Commerce" or the "Department") remand redetermination pursuant to the court's order in Wilmar Trading Pte Ltd. v. United States, 46 CIT —, 582 F. Supp. 3d 1243 (2022) ("Wilmar I"). See Final Results of Redetermination Pursuant to Court Remand ("Remand Results"), ECF Nos. 91 (Confidential) & 92 (Public). In Wilmar I, the court sustained in part, and remanded, Commerce's final determination in the less-than-fair-value investigation of biodiesel from Indonesia. See Wilmar I, 46 CIT at —, 582 F. Supp. 3d at 1259; see also Biodiesel From Indon., 83 Fed. Reg. 8,835 (Dep't of Commerce Mar. 1, 2018) ("Final Determination") and accompanying Issues and Decision Mem. (Feb. 20, 2018) ("Final IDM"), PR 303.

Specifically, the court remanded, for further consideration or explanation, Commerce's determination that multiple particular market situations existed with respect to Wilmar's sales of biodiesel made outside of Indonesia's Public Service Obligation program (the "Program").¹ In addition, the court remanded, for further consideration or explanation, Commerce's adjustment to constructed value (as normal value²) to account for the value of Renewable Identification Numbers ("RINs").³ See Wilmar I, 46 CIT at —, 582 F. Supp. 3d at 1259. The court reserved decision on Consolidated Plaintiff P.T. Musim Mas's ("Musim Mas") challenges to Commerce's use of adverse facts available, pending the results of the redetermination. See id.

On remand, Commerce continued to find that multiple particular market situations existed with respect to Wilmar's non-Program sales, rendering them outside the ordinary course of trade and, therefore unusable for purposes of determining normal value. See Remand Results at 14-18. Commerce reconsidered, however, its decision to account for RINs by increasing constructed value (as normal value), and instead accounted for RINs by decreasing U.S. price (i.e., export price⁴ or constructed export price⁵). See Remand Results at 6-12.

Plaintiffs Wilmar Trading Pte Ltd., PT Wilmar Bioenergi Indonesia, and Wilmar Oleo North America LLC (collectively, "Wilmar") challenge the Department's remand redeterminations. See Pls.' Cmts. Opp'n to Final Results of Redetermination Pursuant to Ct. Remand ("Pls.' Cmts."), ECF Nos. 96 (Confidential) & 97 (Public). Defendant the United States, on behalf of Commerce, and Defendant-Intervenor National Biodiesel Board Fair Trade Coalition, urge the court to sustain the Remand Results. See Def.'s Resp. to Cmts. Remand Results ("Def.'s Cmts."), ECF Nos. 104 (Confidential) & 105 (Public); Def.-Int.'s Cmts. Supp. of Final Results of Redetermination Pursuant to Ct. Remand ("Def.-Int.'s Cmts."), ECF Nos. 106 (Confidential) & 107 (Public).

For the following reasons, the court sustains, in part, and remands Commerce's Remand Results. The court sustains Commerce's particular market situation finding based on the export levy imposed by the Government of Indonesia in 2015 ("2015 Export Levy"). The court also sustains Commerce's method of accounting for RINs as an adjustment to U.S. price. The court remands, however, on one issue—the potential imposition of a double remedy. Specifically, Commerce shall reconsider its decision to disregard Indonesian crude palm oil prices—when constructing normal value for Wilmar—based on the existence of a particular market situation (i.e., the 2015 Export Levy), or explain why doing so does not result in a double remedy.

With respect to Musim Mas's challenge to its adverse facts available rate, which is being considered for the first time, the court finds that Commerce's adverse facts available determination for Musim Mas was supported by substantial evidence and otherwise in accordance with law.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction under 28 U.S.C. § 1581(c) (2018) and 19 U.S.C. § 1516a(a)(2)(B)(i) (2018) and will uphold 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).

BACKGROUND

This opinion presumes familiarity with Wilmar I, which concerned the less-than-fair-value investigation of biodiesel from Indonesia covering the period of January 1, 2016, through December 31, 2016. See Wilmar I, 46 CIT at —, 582 F. Supp. 3d at 1245. The following facts are relevant to the court's review of the Remand Results.

I. Measures Taken by the Government of Indonesia to Strengthen Its Biodiesel Industry

A. Indonesia's Biodiesel Subsidy Fund

In 2015, the Government of Indonesia implemented a regulatory system with the intention of bolstering its biodiesel industry. Wilmar I, 46 CIT at —, 582 F. Supp. 3d at 1247. As part of this system, the Indonesian government created the Biodiesel Subsidy Fund (the "Fund"). Id. The Fund was structured so that "when biodiesel producers, such as Wilmar and Musim Mas, made sales through [the Program], they received payments from the Fund in addition to a government-mandated amount that Program-designated purchasers paid." Id. As a result, when Wilmar and Musim Mas made sales through the Program, they received payment for those sales in two parts:

(1) a payment from the purchaser in a government-mandated amount designated to match the market price for petrodiesel—a cheaper fuel than biodiesel (the "Petrodiesel Price"); and (2) a payment from the Indonesian government (through the Fund) intended to make up the difference between the Petrodiesel Price and what the Indonesian government estimated as the "market price" for biodiesel (the "Fund Payment").

Id.

The aim of the Program was to support Indonesia's biodiesel market by allowing domestic producers of biodiesel, like Wilmar and Musim Mas, "to receive a competitive price for their biodiesel, even though their purchasers paid the lower Petrodiesel Price." Id.

B. Export Restraints on Crude Palm Oil (Primary Biodiesel Input)

Also in 2015, the Government of Indonesia imposed an export levy on all exports of crude palm oil—the primary input in producing biodiesel in Indonesia. The amount of the levy was $50 per metric ton.⁶ Id. "As a result of the levy, more crude palm oil was available for purchase in the Indonesian market, and less was present in the world market." Id. Furthermore, "the world market price of Indonesian crude palm oil increased, and the price of crude palm oil fell for domestic consumers, including biodiesel producers such as Wilmar and Musim Mas." Id.

II. Commerce's Antidumping Duty Investigation

On March 1, 2018, Commerce published its Final Determination pursuant to its antidumping duty investigation of biodiesel from Indonesia. See Final Determination, 83 Fed. Reg. at 8,835. Commerce selected Wilmar and Musim Mas as mandatory respondents because they were the two largest, publicly identifiable Indonesian exporters of biodiesel by volume, to the United States during the period of investigation. See Respondent Selection Mem. (May 3, 2017), PR 47.

In the Final Determination, Commerce determined Wilmar's normal value by using constructed value, after finding that multiple particular market situations in Indonesia (arising from both the Program and 2015 Export Levy) rendered all of Wilmar's home market sales⁷ of biodiesel (i.e., its Program sales and non-Program sales) outside the ordinary course of trade. See Final IDM at 11-16. Additionally, when calculating Wilmar's dumping margin, Commerce increased the constructed value (as normal value) of the subject merchandise to account for the estimated value of RINs associated with Wilmar's U.S. sales of biodiesel. See Final IDM at 6-8.

As for Musim Mas, Commerce found that it could not determine the normal value of the company's sales in Indonesia or its U.S. sales prices because the company failed to provide necessary information in response to the Department's questionnaires, thus warranting the use of facts available.⁸ See Final IDM at 49-55. Commerce further found that Musim Mas failed to cooperate to the best of its ability to comply with the Department's requests for such information, warranting the use of an adverse inference⁹ in selecting from among the facts otherwise available. See ...