Zhaoqing New Zhongya Aluminum Co. v. United StatesZhaoqing New Zhongya Aluminum Co. v. United States
Craig A. Lewis and Theodore C. Weymouth, Hogan Lovells LLP, of Washington, DC, for the Plaintiff-Intervenor, Evеrgreen Solar, Inc.
Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the briefs was Joanna Theiss, Attorney, Office of the Chief Counsel for the Import Trade Administration, U.S. Department of Commerce, of Washington, DC.
Alan H. Price, Derick G. Holt, Laura El-Sabaawi, Maureen E. Thorson, Robert E. DeFrancesco, III, Wiley Rein LLP, of Washington, DC and Stephen A. Jones, Gilbert B. Kaplan, and Daniel L. Schneiderman, King & Spalding LLP, of Washington, DC, for Defendant-Intervenor, Aluminum Extrusions Fair Trade Committee.
OPINION
POGUE, Chief Judge:
In this action, Plaintiffs, producers and importers of extruded aluminum seek review of two aspects of Commerce‘s calculations of countervailing duties on certain aluminum extrusions from the People‘s Republic of China (“PRC” or “China“). See Aluminum Extrusions from the People‘s Republic of China, 76 Fed.Reg. 18,521 (Dep‘t Commerce Apr. 4, 2011) (final affirmative CVD determination) (“Final Determination“) and accompanying Issuеs and Decision Memorandum (“I & D Memo“). Plaintiffs first challenge Commerce‘s inclusion of import duties in its calculation of a world market price for use as the benchmark for determining the benefit received from government-supplied primary aluminum. Plaintiffs also challenge Commerce‘s finding that a plot of land acquired by New Zhongya (hereinafter “Zhongya“) was, at the time of acquisition, comparable to a fully developed Thai industrial park. For the reasons stated below, the court finds that Commerce‘s inclusion of import duties was in accordance with law, but that Commerce‘s finding that the land leased by Zhongya in 2006 was, at the time the land use rights werе acquired, comparable to a fully developed industrial park was not supported by a reasonable reading of the evidence of record. Therefore, Commerce‘s Final Determination is affirmed in part and remanded in part.
The court has jurisdiction pursuant to
BACKGROUND
In its 2010 investigation of certain extruded aluminum products from the PRC, Commerce determined that countervailing duties (“CVDs“) were appropriate to offset subsidies provided to Chinese producers of extruded aluminum. See Aluminum Extrusions from the People‘s Republic of China, 76 Fed.Reg. 30,653 (Dep‘t Commerce May 26, 2011) (CVD order). Specifically, during the investigation, Commerce found that the respondents received financial contributions in the form of primary aluminum inputs supplied by companies that were government authorities. I & D Memo cmt. 21 at 96. In deciding whether these financial contributions conferred a benefit, Commerce selected an appropriate benchmark against which to measure the adequacy of the price paid for government-supplied primary aluminum. Id. When se-lecting
Commerce also investigatеd allegations that China provided land-use rights for less than adequate renumeration to aluminum extrusion producers and concluded that provision of such land-use rights constituted a countervailable subsidy. I & D Memo cmt. 24. As with the supplies of primary aluminum, Commerce sought to find an appropriate benchmark to determine whether the respondents received any benefit. Commerce selected the purchase price of a fully developed industrial park in Bangkok, Thailand, as the benchmark and found that when compared to a land-use lease signed by Zhongya in 2006, Zhongya received a benefit. Id. at cmt. 24. Plaintiffs also seek judicial review of this determination, arguing that the record as a whole shows that the price Zhongya paid in 2006 was for land that contained no infrastructure and required significant improvements before manufacturing could occur, and therefore the purchase price of a fully developed industrial park is not a comparable benchmark. Id.
STANDARD OF REVIEW
The court will sustain Commerce‘s “determination[s], finding[s], or conclusion[s]” unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
DISCUSSION
I. Import Duties
Plaintiffs first challenge Commerce‘s inclusion of import duties in its benchmark calculation when it investigated Chinеse producers imports of primary aluminum. Specifically, Plaintiffs assert that because they paid no import duties on imports of primary aluminum from Hong Kong, Commerce‘s inclusion of import duties improperly inflates the benchmark value used to determine the value of this benefit.2 Plaintiffs claim that when, as here, Commerce uses world market prices, it errs in including import duties in its calculations.
Here, Commerce found that the “market for primary aluminum is significantly distorted by the presence of companies determined to be government authorities” and that the preferred tier-one benchmark was therefore unusable. I & D Memo cmt. 21 at 94, 96. Pursuant to its regulation, Commerce then proceeded to use tier-two pricing, the world market price, as a benchmark price and adjusted it to include delivery charges and import duties. I & D Memo cmt. 20 at 94;
Plaintiffs challenge the inclusion of import duties, claiming that the regulation calls for adjusting the tier-two benchmark to reflect what a firm actually paid or would pay, and that because they paid no import duties, the tier-two benchmark impermissibly includes such duties. But Plaintiffs’ understanding of the regulations is flawed. As the government notes, both in its I & D Memo and before the court, Plaintiffs are asking for a “company-specific, tier-one benchmark” but have failed to challenge Commerce‘s finding that tier-one pricing is unavailable. Def.‘s Opp‘n to Pls.’ Mot. For J. on the Agency R., ECF No. 53 at 11-12 (“Gov‘t Br.“). Therefore, Commerce‘s decision that tier-one pricing is unusable, and the consequent use of the tier-two pricing, thе world market price, as a reasonable benchmark is well grounded in the applicable regulations. Accordingly, because the world market price by regulation must include import duties, Commerce‘s decision to include such import duties in its calculation of the benchmark is reasonable and in accordance with law.3 See Hontex, 27 CIT at 292-93, 248 F.Supp.2d at 1340-41.
II. Land Use Benchmark
Plaintiffs next claim that Commerce‘s selection of a fully developed industrial park purchase price in Bangkok, Thailand as the land purchase price benchmark is not comparable to Zhongya‘s 50 year lease of wholly undeveloped land.
Plaintiffs refer to numerous citations to the reсord which show that, from the beginning of the investigation, it has maintained that the land leased by Zhongya was completely undeveloped and required significant development, such as infrastructure for water and electricity, before it could be used as a production facility. See Pls.’ Mot. For J. on the Agency R., ECF No. 44 at 5 n. 11 (“Pls.’ Br.“) (listing extensive record citations to documents showing that Zhongya developed the land). Indeed, the lease for Zhongya‘s land contains an article providing timelines for
Commerce fails to squarely address Plaintiffs’ argument that the land it leased was completely undeveloped in 2006 and required signifiсant improvement. In the I & D Memo, Commerce cites a promotional website provided by Petitioners on July 13, 2010, and claims that the data on the website dates back to 2004. I & D Memo cmt. 24 at 106. The website exists to promote the region in which Zhongya leased its land. In its brief to the court, Commerce notes that the excerpted pages have a note stating, “Copyright 2004 ZhaoQing Government,” and the website currently describes the region as an “industrial estate which has been well-equipped with electricity, water, cable, road {sic}....” Gov‘t Br. at 18 (citing Petitioner‘s First New Subsidy Allegations (Jul. 13, 2010), Pub. Doc. 91, Exhibit 1 at 12). This argument completely misses the point. First, promotional websites which exist to advertise and attract business are not held to any standards of accuracy and fact and do not carry the same weight as, for example, findings that arise from a thorough administrative investigation.4 See Constantine Polites v. United States, — CIT —, 780 F.Supp.2d 1351, 1356 n. 11 (2011). Because websites are fluid in nature and may be edited at any point in time with no discernable trace, a nоte that the pages are copyrighted 2004 does not guarantee that the information was placed there in 2004. While it is, of course, for Commerce to decide the weight of this evidence, F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000), Commerce‘s weighing must not be unreasonable. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). Second, the amenities currently advertised as available in the general region have absolutely no bearing on the condition of the specific plot as it existed when Zhongya assumed the land use rights in 2006.
Defendant-Intervenor argues that the publication date of the website is irrelevant because the website states that by “August 2005, more than 170 enterprises have found their homes in the industrial рark among which 60 have gone into operation.” Resp. In Opp. to Pls.’ Mot. For J. on the Agency R., ECF No. 52 at 17. Again, this argument misses the point. Nothing in a promotional website for the general region supports a finding that the specific plot leased by Zhongya in 2006 was comparable to a fully developed industrial park in Bangkоk, Thailand. Indeed, the language cited by Defendant-Intervenor, stating that 60 of 170 enterprises in that region were operational in 2005, tends to suggest that the region in 2005 was not a fully
Commerce‘s sole argument concerning the specific plot leased by Zhongya also fails. Commerce states that it “collected” photographs during verification which show power lines and a canal on or near the site. Gov‘t Br. at 17 (“Concerning the parcel for which New Zhongya purchased land-use rights, Commerce noted that, during verification, it collected pictures showing power lines and a canal on or near the site.“); I & D Memo at 107. Commerce does not clearly indicate the provenance of these photographs, but Plaintiffs state that they were selectively chosen from a slideshow they created to show the improvements they made to the land from 2005 to 2010. Pls.’ Br. at 7. Plaintiffs assert that the photographs Commerce used were taken after Zhongya had completed its improvements to the land and therefore these photographs do not show the condition of the plot as it existed when Zhongya assumed the lease in 2006. Id. Given the record as a whole, the court is not persuaded that these photographs provide substantial evidence that the land Zhongya leased was a fully developed industrial park in 2006, or that the photographs even depict the land as it existed in 2006.
In sum, the court cannot conclude that a reasonable reading of the record as a whole supports Commercе‘s rebuttal of Plaintiffs’ claim that the land they leased was undeveloped in 2006 and therefore not comparable to a fully developed industrial park. Commerce relies on a 2010 screenshot of a promotional website for the region to support its claim that the plot as it existed in 2006 was a fully developеd industrial park and has not placed any evidence on the record rebutting or addressing Plaintiffs’ claims that photographs showing a canal and power lines on or near the property were taken in 2010 and not 2006. The court therefore holds that Commerce‘s finding that the land as it existed in 2006 was comparable to a fully developed industrial park is not supported by substantial evidence and remands for reconsideration or further explanation.6 See Nippon Steel, 458 F.3d at 1350-51.
CONCLUSION
For the reasons stated above, Commerce‘s Final Determination is affirmed in part and remanded in part for reconsideration of its selection of a fully developed industrial рark as a benchmark for the land-use rights acquired by Plaintiffs in 2006. Commerce shall file its remand determination with the court by August 5, 2013. The parties will have until August 19, 2013 to file comments, and Commerce has until September 2, 2013 to file a response.
It is so ORDERED.
DONALD C. POGUE
CHIEF JUDGE