Yc Rubber Co. (North America) v. United States

Case: 21-1489 Document: 75 Page: 1 Filed: 08/29/2022

United States Court of Appeals for the Federal Circuit ______________________

YC RUBBER CO. (NORTH AMERICA) LLC, SUTONG TIRE RESOURCES, INC., MAYRUN TYRE (HONG KONG) LIMITED, ITG VOMA CORPORATION, KENDA RUBBER (CHINA) CO., LTD., Plaintiffs-Appellants

v.

UNITED STATES, Defendant-Appellee ______________________

2021-1489, 2021-1698, 2021-1699, 2021-1700 ______________________

Appeals from the United States Court of International Trade in No. 1:19-cv-00069-MAB, Judge Mark A. Barnett. ______________________

Decided: August 29, 2022 ______________________

NICHOLAS SPARKS, Hogan Lovells US LLP, Washing- ton, DC, argued for plaintiffs-appellants ITG Voma Corpo- ration, Mayrun Tyre (Hong Kong) Limited, Sutong Tire Resources, Inc., YC Rubber Co. (North America) LLC. Plaintiff-appellant ITG Voma Corporation also repre- sented by CRAIG A. LEWIS, JONATHAN THOMAS STOEL.

NED H. MARSHAK, Grunfeld, Desiderio, Lebowitz, Sil- verman & Klestadt LLP, New York, NY, for plaintiffs-

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appellants YC Rubber Co. (North America) LLC, Sutong Tire Resources, Inc. Also represented by ALAN LEBOWITZ, MAX F. SCHUTZMAN; JORDAN CHARLES KAHN, Washington, DC.

JOHN MICHAEL PETERSON, Neville Peterson LLP, New York, NY, for plaintiff-appellant Mayrun Tyre (Hong Kong) Limited. Also represented by PATRICK KLEIN, RICHARD F. O'NEILL, Seattle, WA.

LIZBETH ROBIN LEVINSON, Fox Rothschild LLP, Wash- ington, DC, for plaintiff-appellant Kenda Rubber (China) Co., Ltd. Also represented by BRITTNEY RENEE POWELL, RONALD MARK WISLA.

ASHLEY AKERS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, JEANNE DAVIDSON, PATRICIA M. MCCARTHY; AYAT MUJAIS, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Depart- ment of Commerce, Washington, DC. ______________________

Before NEWMAN, SCHALL, and PROST, Circuit Judges. NEWMAN, Circuit Judge. This appeal is from the second administrative review of antidumping duties for certain passenger-vehicle and light-truck tires from the People’s Republic of China. Un- der review, there were forty-two exporters and producers of the subject products. The Department of Commerce ini- tially selected two respondents as representative; one of these two then withdrew from the review, and Commerce reviewed the remaining respondent and applied the result- ant antidumping duty rate to all exporters and producers subject to review. Commerce denied all requests to

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withdraw from the review after publishing its Preliminary Results. On appeal by several exporters and producers (collec- tively, “YC Rubber”), the Court of International Trade (“CIT”) affirmed. This appeal followed. BACKGROUND This second administrative review was initiated on Oc- tober 16, 2017. Initiation of Antidumping and Countervail- ing Duty Administrative Reviews, 82 Fed. Reg. 48,051, 48,055 (Oct. 16, 2017). Pursuant to 19 U.S.C. § 1677(c)(1), Commerce is generally required to examine all known ex- porters/producers of the subject products and determine an individual weighted-average dumping margin for each ex- porter and producer. As is routine, Commerce allowed in- dividual exporters/producers to apply for separate rate status. Such respondents receive an individually calcu- lated dumping margin separate from the country-wide margin. § 1677(c) Determination of dumping margin (1) General rule In determining weighted average dumping margins under section 1673b(d), 1673d(c), or 1675(a) of this title, the administering authority shall determine the individual weighted average dumping margin for each known exporter and pro- ducer of the subject merchandise. During the second review, forty-two exporters and produc- ers applied for and were initially granted separate rate sta- tus. Due to the high number of separate rate respondents, Commerce determined that it would not be feasible to re- view each of them individually. U.S. Dep’t of Commerce Respondent Selection Mem. (Apr. 12, 2018), Appx223–231.

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Thus, Commerce invoked § 1677(c)(2), which provides the following exception: (c)(2) Exception If it is not practicable to make individual weighted average dumping margin determinations under paragraph (1) because of the large number of exporters or producers involved in the investiga- tion or review, the administering authority may de- termine the weighted average dumping margins for a reasonable number of exporters or producers by limiting its examination to— (A) a sample of exporters, producers, or types of products that is statistically valid based on the in- formation available to the administering authority at the time of selection, or (B) exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably exam- ined. Several exporters requested that Commerce select three mandatory respondents for its sample. However, Commerce selected only two mandatory respondents: Zhaoqing Junhong Co., Ltd. (“Junhong”) and Shandong Haohua Tire Co., Ltd. (“Haohua”). Selection Mem., at 7. Commerce explained that it selected these two because they were “the top two publicly identifiable exporters/pro- ducers of passenger vehicle and light truck tires sold to the United States.” Id. On April 12, 2018, Commerce issued its initial ques- tionnaires to Junhong and Haohua. Two weeks later, Hao- hua gave notice of its withdrawal from participation in the review. Letter from DeKieffer & Horgan, PLLC to the Hon- orable Wilbur L. Ross, Jr., Sec’y of Commerce, (Apr. 26, 2018); Appx408–411. Commerce did not select a

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replacement respondent, and over the next three months Commerce investigated only Junhong. On September 11, 2018, Commerce issued its Prelimi- nary Results based on the examination of Junhong and ap- plied an individual dumping margin of 73.63%. This margin was then designated as the rate for all of the ex- porters and producers. Several separate rate respondents contested Com- merce’s decision to apply the 73.63% margin to all other entities because this margin was based on examination of only one respondent. Several respondents also took issue with how Junhong’s individual rate was calculated. In par- ticular, they disagreed with Commerce valuing Junhong’s factors of production by selecting Thailand as the primary surrogate country and disregarding Thai import values from India, Indonesia, and South Korea. Commerce ex- plained that the Thai import values were disregarded be- cause they came from countries providing non-industry- specific export subsidies. Several respondents then sought to withdraw their re- view requests. Commerce denied these requests as un- timely, for they were submitted after the 90-day period established by 19 C.F.R. § 351.213(d)(1). On April 22, 2019, Commerce issued the Final Results for the second review and addressed various concerns that had been raised. Commerce continued to use a single man- datory respondent, Junhong, for its investigation but re- duced the weighted-average dumping margin to 64.57%. Commerce applied this rate to all participants in the re- view. Certain Passenger Vehicle and Light Truck Tires from the People’s Republic of China: Final Results of Anti- dumping Duty Administrative Review 2016-2017, 84 Fed. Reg.17,782–83 (Apr. 26, 2019). Commerce stated that sec- tion 1677(c)(2) does not require it to base the rate on exam- ination of more than one exporter or producer. Commerce

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stated that after Haohua’s withdrawal, “no exporter/pro- ducer subject to the review requested individual examina- tion, requested treatment as a voluntary respondent, submitted voluntary questionnaire responses, or submit- ted a request for Commerce to select an additional respond- ent.” Certain Passenger Vehicle and Light Truck Tires from the People’s Republic of China: Issues and Decision Memo- randum for the Final Results of the 2016-2017 Antidump- ing Duty Administrative Review: 2016-2017, (Dep’t of Commerce Apr. 19, 2019). YC Rubber, Sutong Tire, and ITG Voma, along with Mayrun Tyre (Hong Kong) Ltd. and Kenda Rubber (China) Co., Ltd., sought review of the Final Results by the CIT pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). The CIT held that Commerce’s use of a sole man- datory respondent was a reasonable exercise of agency dis- cretion. The court also determined that Commerce’s interpretation of § 1677f-1(c)(2)(B) was permissible, and the court deferred to Commerce’s reading of the statute. The CIT sustained Commerce’s decision to exclude Thai import data from India, Indonesia, and South Korea when determining surrogate values for Junhong. The court held that Commerce’s determination was supported by substantial evidence because Commerce had deter- mined that broadly available export subsidies existed as determined in prior administrative reviews. Y.C. Rubber Co., LLC v. United States, 487 F. Supp. 3d 1367, 1386 (Ct. Int’l Tr. 2020). After the CIT affirmed Commerce’s Final Results, YC Rubber, Sutong Tire, and ITG Voma filed the present ap- peal on the grounds that 1) Commerce impermissibly inter- preted § 1677(c)(2) and based the separate rate dumping margin on the examination of a single respondent; 2) Com- merce’s application of Junhong’s rate to other separate rate respondents is unsupported by substantial evidence and

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unlawful; 3) Commerce’s decision to deny the withdrawal requests is unsupported by substantial evidence; and 4) Commerce’s decision to exclude Thai import data from India, Indonesia, and South Korea when determining Jun- hong’s factors-of-production value is unsupported by sub- stantial evidence. Appellant Mayrun Tyre joins the appeal on grounds 1) and 3). DISCUSSION The Federal Circuit reviews tariff decisions of the CIT de novo; thus, we apply the same standard used by the CIT to review the Commerce decision. Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 1373 (Fed. Cir. 2015). Pursuant to 19 U.S.C. § 1516a(b)(1)(B)(i), “[our] court shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evi- dence on the record or otherwise not in accordance with law.” Substantial evidence is “‘more than a mere scintilla, as well as evidence that a reasonable mind might accept as adequate to support a conclusion,’ and Commerce’s ‘finding may still be supported by substantial evidence even if two inconsistent conclusions can be drawn from the evidence.’” SolarWorld Americas, Inc. v. United States, 910 F.3d 1216, 1222 (Fed. Cir. 2018) (quoting Downhole Pipe & Equip., L.P., 776 F.3d at 1374). To implement this standard, Com- merce must provide a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). I The statute requires a reasonable foundation for the average dumping margin calculated for multiple import- ers. If a large number of exporters and producers are under review, Commerce may “determine the weighted average dumping margins for a reasonable number of exporters or producers by limiting examination to— a sample of export- ers, producers or types of products that is statistically

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valid . . . or [to] exporters and producers accounting for the largest volume of the subject merchandise.” 19 U.S.C. § 1677(c)(2)(B). The government states that nothing in § 1677f- 1(c)(2)(B) compels Commerce to individually review more than one respondent, and that Commerce’s position that it suffices to review only one respondent warrants Chevron deference. See Chevron U.S.A., Inc. v. Nat. Res. Def. Coun- cil, 467 U.S. 837 (1984). When reviewing an agency’s in- terpretation of a statute under Chevron, we first determine “whether Congress has directly spoken to the precise ques- tion at issue,” and if so, the court must follow Congress’s intent. Id. at 842. When the statute is silent or ambiguous, the court must determine whether the agency’s interpreta- tion is reasonable. Id. at 842–45. We conclude that Commerce’s interpretation is con- trary to the statute’s unambiguous language. The statute calls for all respondents to be individually investigated, un- less the large number makes separate review impractica- ble. This statutory “exception” authorizes review of a smaller number of exporters or producers than have re- quested review. 19 U.S.C. § 1677f-1(c)(2). The question is whether the statute permits Commerce to review a single exporter or producer when multiple have requested review and Commerce has not demonstrated that it was otherwise reasonable to calculate the all-others rate based on only one respondent. The criterion for a reasonable number is set forth in § 1677(c), as whether the sample rate is “statistically valid.” The statute generally requires that the “reasonable num- ber” is greater than one. It provides: 19 U.S.C. § 1673d(c)(5) Method for determining es- timated all-others rate (A) General rule

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For purposes of this subsection and section 1673b(d) of this title, the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted average dumping mar- gins established for exporters and producers indi- vidually investigated, excluding any zero and de minimis margins, and any margins determined en- tirely under section 1677e of this title. (B) Exception If the estimated weighted average dumping margins established for all exporters and produc- ers individually investigated are zero or de mini- mis margins, or are determined entirely under section 1677e of this title, the administering au- thority may use any reasonable method to estab- lish the estimated all-others rate for exporters and producers not individually investigated, including averaging the estimated weighted average dump- ing margins determined for the exporters and pro- ducers individually investigated. In addition, 19 U.S.C. § 1677f-1(c)(2) specifies that Com- merce “may determine the weighted average dumping mar- gins for a reasonable number of exporters or producers.” Congress contemplated the possibility of multiple export- ers and producers, and that antidumping duties could be determined for a reasonable number of exporters and pro- ducers that was less than the total number. To be sure, Commerce correctly notes that “unless the context indi- cates otherwise . . . words importing the plural include the singular.” Appellee’s Br. 15 (citing 1 U.S.C. § 1). But here, Commerce must “determine the weighted average” for that reasonable number, and Commerce provides no reason why it would be reasonable to “average” a single rate. We con- clude that a “reasonable number” is generally more than one.

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Notably, the CIT has reached the same conclusion we arrive at today. In Shaeffler Italia S.R.L. v. United States, the court explained: In using the terms “reasonable number of exporters or producers” and “large number of exporters or producers” in section 777A(c)(2) of the Tariff Act, Congress has directly spoken to the precise ques- tion at issue. The plural term “reasonable number of exporters or producers,” read according to its plain meaning, does not encompass a quantity of one. 19 U.S.C. § 1677f-1(c)(2) (emphasis added). 781 F. Supp. 2d 1358, 1362–3 (Ct. Int’l Tr. 2011) (hold- ing that “a reasonable number of exporters or producers must be greater than one”); see also, e.g., Mid Continent Nail Corp. v. United States, 949 F. Supp. 2d 1247, 1269 n.18 (Ct. Int’l Tr. 2013) (referring to “the incontrovertible observation that ‘[t]he plural term “reasonable number of exporters or producers,” read according to its plain mean- ing, does not encompass a quantity of one’” (emphases in original)). For these reasons, we conclude that Commerce erred in relying on a single entity for calculation of a dumping mar- gin for all respondents. II Having determined that Commerce unlawfully re- stricted its examination to a single mandatory respondent, substantial evidence does not support Commerce’s applica- tion of Junhong’s rate to the other separate rate respond- ents. Appellants also ask us to decide whether Commerce’s decision to exclude Thai import data from India, Indonesia, and South Korea when determining Junhong’s factors of production value is correct. Such a decision is premature, for these fact-dependent situations may vary with the spe- cific circumstances under review. We also do not reach

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Appellants’ challenge to Commerce’s decision to deny Ap- pellants’ withdrawal requests. CONCLUSION We conclude that Commerce erred in restricting its ex- amination to only one exporter/producer. We vacate the decision of the Court of International Trade, and remand for further proceedings in conformity with this opinion. VACATED AND REMANDED COSTS

No costs.