Thai Plastic Bags Industries Co. v. United States
2013 Ct. Intl. Trade LEXIS 50
Ct. Intl. Trade2013Background
- Consolidated action challenging five Commerce antidumping determinations in the sixth administrative review of polyethylene retail carrier bags from Thailand.
- TPBI (a respondent) and Importers challenge zeroing of negative normal-to-export price differences and TPBI’s G&A treatment of export-conditional rebates.
- Domestic Producers challenge: (i) inclusion of TPBI asset-sale gain in G&A expenses, (ii) adjusting Landblue’s surrogate selling expenses to reflect Landblue’s direct-to-indirect ratio, (iii) use of publicly available surrogate data for Landblue’s constructed profit.
- Commerce’s Final Results largely sustained TPBI and Importers’ challenges on zeroing and BCR COP treatment.
- The court remands on two issues (asset-sale gain inclusion and surrogate selling-expense adjustment for Landblue) and sustains the rest of the Final Results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Zeroing of negative price differences in dumping margins | TPBI & Importers argue for deducting, not zeroing. | Commerce maintains zeroing is proper under governing practice. | Affirmed (zeroing upheld). |
| Exclusion of export-conditional BCR revenue from COP in normal value | TPBI/Importers say BCR should reduce COP. | Commerce correctly excluded BCR as export-conditioned. | Affirmed (BCR not deducted). |
| Asset-sale gain included in TPBI’s G&A expenses | Gain was not part of routine production-related dispositions. | Commerce treated asset gains as routine disposition. | Remanded for further consideration. |
| Landblue’s constructed selling expenses using Thantawan’s ratio | Remanded for reconsideration. | ||
| Landblue’s constructed profit from public surrogate data | Using TPBI’s confidential data was preferable. | Public surrogate data used due to protective-order constraints. | Affirmed (use of public data sustained; remand on related issue). |
Key Cases Cited
- SKF USA, Inc. v. United States, 537 F.3d 1373 (Fed. Cir. 2008) (substantial evidence standard applied to administrative determinations)
- Consolidated Edison Co. v. NLRB, 305 U.S. 197 (U.S. 1938) (substantial evidence and deferential review principles)
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (substantial evidence assessment; reasonable minds view)
- Target Corp. v. United States, 609 F.3d 1352 (Fed. Cir. 2010) (record-wide substantial evidence review)
- Saha Thai Steel Pipe (Public) Co. v. United States, 635 F.3d 1335 (Fed. Cir. 2011) (export rebates and COP/normal value relationship)
- Univ. Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (substantial evidence and reasoned explanation requirement)
- Geum Poong Corp. v. United States, 163 F.Supp.2d 669 (CIT 2001) (protective order constraints and use of confidential information)