### Slip Op. 03- 167

UNITED ST ATES COURT OF INTE RNATIONAL T RADE

____________________________________ : DUPONT TEIJI

N FIL MS USA, LP, : MITSUBI SHI POLY

ESTER FIL

M OF : AMERICA, LLC, and : TORAY PLASTI CS (AMERICA), I NC., : : Plaintiff s, :

: v. : : Consol. Court No. 02-00463 UNITED STATES, : : Defend ant, :

: and : : POLYPLEX CORPORATI ON LI MITED, :

: Defendant-Inte

rvenor. : ____________________________________: [ITA’ s antidump ing duty

determination susta

ined in pa rt, rema nded in pa

rt; DefendantIntervenor’s motion to supplement the rec ord and amend memorandum of law denied.]
Dated: December 17, 2003 Wilmer, Cutler & Pickering ( John D. Gre enwald , Ronald I. Meltzer , and Ly nn M. Fischer ) for pla

intiffs. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Jeanne E. Davidson , Deputy Direc

tor, Commercial Litigation Bra nch, Civil Division, United States Department of Justice ( Paul D. Kovac ), Scott D. McBride , Office of the Chief Counsel for Impor t Administr

ation, Un ited State s Depar

tment of Co mmerce, of counse l, for de fendant

. Co ude rt B rot her s LLP ( Kay C. Geor gi and Mark P. Lunn ) for defendant-intervenor.C ONSOL . C OURT N O . 02-00463 P AGE 2 OPINION RESTANI, Chief Judge: This matter is before the court following remand in Dupont Teijin Films USA, LP v. United States , 273 F. Supp. 2d 1347 (Ct. Int’l Trade 2003) (“Dupont Teijin I ”). I n its Final Results of Redetermination Pursuant to Court Remand [hereinafter Remand Determination ], the Departm ent of Comm erce ( “Commerc e” or “t he Depa rtment”) determined to incl

ude DefendantIntervenor Poly

plex Corporation Limited (“Poly plex”) in the antidumping duty order on polyethy lene terephthalate film, sheet, and strip (“PET film”) from India because its weightedaverage dumping marg

in was greater than de minimis . Polyplex and Dupont Teijin Films USA, LP, Mitsubishi Polyester F ilm of America, LL C, and Toray Plastics (Ame rica), Inc. (“Plaintiffs”), domestic producers of PET film and petitioners in the underly ing investigation, now raise various challenges to the Remand Determination . Poly plex has al so filed a

motion to supplement the record and to amend its memorandum of law in this matter in light of Commerce’s recent request for comments on Section 201 duties. Jurisdiction & Standard of Review The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) . The court will uphold Commerce’s determination in an antidumping duty investigation unless it is “unsupported by substantial evidence on the record, or otherwise not in ac cordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(I

) (2000).C ONSOL . C OURT N O . 02-00463 P AGE 3 Factua l & Proc edural Bac kground In Dupont Teijin I , the court reviewed Commerce’s final deter mination in the antidumping duty investiga tion , which f

ound that PE T film fro m Indi a is being sold, or is

likely to be sold, in the Unit

ed States at less tha

n fair va lue (“L TFV”). 273 F. Sup

p. 2d at 13 50; see Poly ethy lene Ter ephthala te Film, Sh eet, and

Strip Fro m Indi a , 67 Fed. Reg. 34,899 (Dep’t Commerce May 16, 2002) [hereinafter Final Determination ]. Commerce calculated Poly plex’s weight ed-ave rage d umping ma

rgin at 10.34 per

cent, but the Depa rtment “adjusted the antidumping duty ca sh deposits for the export subsidies found in the companion countervailing investigation rather than adjusting net U.S. price.” Final De term. , 67 Fed. Reg. at 34,900–01 & n.2 (citation omitted). Based on its zero cash deposit rate, Commerce excluded Poly plex from it s affirma tive dumpin

g deter mination on

PET film fr

om Ind ia and the resulting antidumpin

g duty order. Id. at 34,901; Notice of Amended Final Determination of Sales at L ess Than Fair Value and Antidumping Duty Or der , 67 Fed. Reg. 44,175, 44,176 n.2 (Dep’t Commerce July 1, 2002) [hereinafter Amended Final Determination ]. In reviewing

this action , the cour

t held tha t Commerc e’s Final Determination was not in accord ance wi th law, be cause a

n exporter

with a dump ing mar

gin gr eater than two pe

rcent mu st be includ ed in an affirmat

ive fina l determi nation of sales at L

TFV reg ardless

of its cash deposit rate. Dupont Teijin I , 273 F. Su pp. 2d at 1352. The

court re manded th e case t

o Commerc e with instructions that its exclusion of Polyplex could only be ba sed on a de minimis dumping margin

as a res ult of adju stments to Po lyp lex’s U.S. p rice pursuant to 19 U.S.C. § 167 7a(c)( 1)(C) (2000). See id. & n.11. T he court noted tha t the rea l issue he re is whe ther Comme

rce cou ld reasonably

interpret the statute, which requires Commerce to increa se Polyplex’s export price byC ONSOL . C OURT N O . 02-00463 P AGE 4

1 Th e c ou rt ex pl ai ne d t he ba si c e co no mi c t he or y be hi nd th e a dj us tm en ts ma nd at ed by § 1677a(c)(1)(C) in Dupont Teijin I , 273 F. Supp. 2d at 1349 n.4. Essentially, this provision presumes that export subsidies contribute to the lower-priced sales of subject merc handise in the U.S. market. Final De

term. , 67 Fed. Reg. at

34,900–01 . In th

is case, the count

ervailin g duty investigation resulted in a margin of 18.66 perc ent for Polyplex, which is gre ater than its 10.34 percent dumping margin. Id. at 34,901. Thus, the issue in Dupont Teijin I was whether Commerce ’s exclusio n of Poly plex based

on its extens ion of § 167 7a(c)( 1)(C)’s basic ec onomic theory to the ca

lculation of antidumping duty ca sh deposits, without adjusting the producer/exporter’s U.S. price, was appropriate

. “t he am ou nt of

an y countervailing duty

imposed on the subject me rchandi se . . . to offset an export subsidy,” to apply

in situations like the present where counter vailable export subsidies are found in a companion countervailing duty investigation, but where duties have not y et been assessed after an administrative review. 1 Id. n.11 (quoting 19 U.S.C. § 1677a(c)(1)(C) (emphas is added) ). Because the Department fa iled to make any a

djustments to Polyplex’s U.S. price in the Final Determination , but rath er base d its exclusi on of Poly plex on its zer

o cash de posit rate despite a dumping margin above de minimis levels, th e court o rdered Commerce

to “calc ulate Polyplex’s dumping margin af ter making the adjustments to export price required by 19 U.S.C. § 1677a and Commerce’s reasonable interpre tations thereof.” Id. at 1352. The court instructed that, “[i]f C ommer

ce c ontin ues to calc ulate a dum ping marg in of 1 0.34 p erce

nt for Poly plex, Poly plex must be s

ubject to the antid umping du

ty o rder, w

hether o r not it is g iven a ca sh deposit rate of zero because of expected offsetting countervailing duties.” Id. at 1352–53. In its Remand Determination , after p roviding notice a nd an oppo rtunity

for comme

nt, Commerce set forth its interpretation of the disputed phrase “counter vailing duty imposed” in the context of companion antidumping and countervailing duty investigations. Although the Departm ent norma

lly i nterpre ts the ter m “imposed

” to requ ire an a djustment t

o export pr

ice only following the actu al asses sment of c ounterva iling dut ies follow ing an a dministra tive review, inC ONSOL . C OURT N O . 02-00463 P AGE 5

parallel antidumping and countervailing duty investigations, “Commerce considers countervailing duties to be imposed upon the issuance of a counter vailing duty orde

r.” Remand Determ. at 3–4. Such an order “directs customs officers to assess a countervailing duty.” Id. at 7 (quoting 19 U.S.C. § 1671e(a)). Commerce explains that, if a countervailing duty order ha s not issued pr ior to its f inal dete rmination in an anti dumping d

uty investig ation, Comm erce will adjust the producer’s cash deposits on future entries “to pre vent assessment of both antidumping and countervailing duties to compensate for the same cause of unfairly

priced imports.” Id. at 8. In a pply ing its sta tutory interpre tation to th e facts

of this ca se, Commer

ce explai ned that, because Polyplex’s exports were not subjec t to a countervailing duty order at the time Commerce issued its Final Determination , countervailing duties had not been “imposed” on the subject merchandise, and, therefore, an inc rease in Polyplex’s U.S. price wa s not permitted. Id. at 4. Accordingly , Commerce determined to include Poly plex in the antidumping duty order, but chose to a ccount f or the co unterva ilable export subsidie s in its cas h deposit i nstructions to customs officials in order to prevent the double assessment of duties. See id. at 8. This action followed. Discussion The par ties rais e sever

al challe nges to t he Depa rtment’s Remand Determination . While Plaintiffs support Commerce’s decision to include Polyplex in the antidumping duty order, they claim tha t the Depa

rtment’s new inter pretation of § 1677 a(c)( 1)(C) is in consiste nt with the

plain language of the statute and the court’s decision in Serampore Industries v. United States , 11 CIT 866, 871–73, 675 F. Supp. 1354, 1359–60 (1987), which upheld as “sufficiently reasonable” Commerce’s interpretation of “imposed” to include counterva iling duties only when they areC ONSOL . C OURT N O . 02-00463 P AGE 6

2 Plaintiffs also challenge the Department’s re fusal to conduct an administrative review of Polyplex’s sales that were er roneously excluded from the July 1, 2002 antidumping duty order

. Becau se Commer

ce’s Remand Determination will apply retroac

tively to include Poly

plex in the original order, Plaintiffs argue that their request for an administrative review on July 31, 2003, was timely and should have be en granted. See 19 C.F.R. § 351.213(b)(1) (2003) (providing that interested parties may

request an administrative review of individual exporters or producer s covered by

an antidumping duty orde r each year during the anniversary month of the order’s publication). The court is without jurisdiction to hear this claim, because the Department’s decision not to cond

uct an ad ministrati ve revie w is not one

of the de terminat ions under

review i n this action.

3 Polyplex urges that Commerce ha s not followed the instructions of the court in Dupont Teijin I in refusing to adjust Polyplex’s U.S. price. The court rejects Polyplex’s sug gestion that the court in Dupont Teijin I “had a reasonable expectation that Commerce [would] reiterate the interpretation it had carefully explained in its Additional Brief.” Polyplex Br. at 8. To the contrary , the court stated that, on remand, Commerce was fre e to set forth a new interpretation of the statute, after providing notice and an opportunity to comment to the parties, so long as the interpretation is reasonable in light of the statute’s express terms. Dupont Teijin I , 273 F. Supp. 2d at 1352 & n.11; see infra n.7 ( rejecting the notion that the Department is bound by previous interpretations of the statute as set forth in prior antidumping duty determinations and previous briefs to the court in this action).

4 On Septem

ber 5, 20 03, Poly

plex filed a

motion to sup

plement th e recor

d and ame

nd its memorandum of law in objection to the Remand Determination in light of Commerce’s unrelated request for comme

nts on the t

reatmen t of Section 201 dutie s and cou ntervai ling duti es in antidumping proceedings. See Treatment of Section 201 Duties and Countervailing Duties , 68 (continued...) “actually imposed”

or “assessed.” 2 Plaintiffs argue, however, that the court should af firm the Remand Determination

without reviewing the Department’s new statutory interpretation because, in Pl ain ti ffs ’ vi ew, Co mm erc e di d no t ap pl y it i n ca lcu lat in g Po lypl ex ’s d um pi ng m arg in . In response to Plaintiffs’ claims, both Polyplex and Commerce arg ue that Commerce’s in te rp re ta ti on of

th e s ta tu te is ri pe fo r r ev ie w a nd no t p re cl ud ed by Serampore

. Nevertheless, Polyplex claims that the Depa rtment’s new interpretation of § 1677a(c)(1)(C) is not in accordance with the court’s remand order 3 and is unreasonable in light of the statute’s underlying

purpose. 4 Polyplex offers what it arg ues is a better interpretation of theC ONSOL . C OURT N O . 02-00463 P AGE 7

4 (...continued) Fed. Reg . 53,104 ( Dep’t Com merce Se pt. 9, 2003 ). The mot

ion is deni ed. Poly

plex has fa

iled to justify the cour t’s consid eration of matters outside th e administ rative r ecord on incompleteness or any other

ground. See F.lli De Cecco di Filippo Fara San Marino S.p.A. v. United States , 21 CIT 1124, 1126, 980 F. Supp. 485, 487 (1997) (“A c ourt will only consider matters outside of the administrative record when there has bee n a ‘ strong showing

of bad faith or improper behavior on the part of the officials who made the determination’ or w hen a party

demonstrates that there is a ‘ reasona

ble basis to believe the administrative record is incomplete.’”). Fur ther, the Federal Register notice was not c onsidere d by the age ncy in making

its Remand Determination and has no bearing on the court’s resolution of the prese nt dispute.

5 “A better reading of the provision . . . would re quire an upward adjustment to export price and constructed export price in an antidumping investig ation (or subsequent review) for CVD duties imposed during a companion CVD investigation or in a prior CVD investig ation (as assessed in a subsequent review).” Poly plex Br. at 20. The court finds that, because Commerce prevent s the asse ssment of d ouble duti es by

adjusting Poly plex’s ca sh deposit

on future entries, the Depa rtment’s new inter pretation does not r

un afoul o f the U.S. ’s international o bligations, despite Polyplex’s arguments to the contr ary. Article VI.5 of the Gene ral Ag reemen t on Tariffs and Trade specifically

prohibits only the assessment of both antidumping and countervailing duties to compensate for the same cause of unfa irly priced imports. The court also notes that Poly plex’s pro ffere d readin

g still doe s not reso lve the a mbiguity as to wha

t “imposed

” means i n the context of an investigation, although Poly plex’s position seems to be that, in the context of an investigation, countervailing duties are “imposed” simply by virtue of the De

partment’s affirmative finding of countervailable subsidies.

6 Poly plex also a

rgues, for the f

irst time, t

hat the De

partmen t erred as a matte

r of law i n alignin g the fi nal count ervailin g duty determination with

the fina l antidumpi

ng duty determination under 19 C.F.R. § 351.210 (2003) , because Plaintiffs’ request for realig nment was untimely filed under Commerce regulations. The court declines to consider this issue. Poly plex did not challenge this decision before Commerce a nd thus did not exhaust its administrative remedies. statute that is consistent with both the legislative purpose and the U.S.’s international obligat ions. 5 In the alternative, Poly plex argues that, even if the court upholds the Department’s interpretation of the statute, an adjustment to its dumping margin was requir ed here because the countervailing duty

order was issued on the same day as the amended final dumping determination. 6 In re viewing Plaintiff s’ claims , the cour

t finds tha t the Depa

rtment’s new inter pretatio n isC ONSOL . C OURT N O . 02-00463 P AGE 8

ripe for review b ecause

Commerce

did in fact employ

it in decli

ning to ma

ke an ad justment to Polyplex’s U.S. price and subjecting Poly plex to the antidumping duty order. Similarly, the court rejects Plaintiffs’ argument that the ag ency is bound by the previous interpretation of “imposed” that was upheld in Serampore

. “[I]t is well settled that an agency may chang e its interpretation of an underlying

statutory provision even abse nt any altera

tion in that provision, so long as the reason for the change is explained and the c hange does not conflict with the underly ing statute.” Paralyzed Veter

ans of Am

. v. Se c’ y of Veterans Affairs , 345 F.3d 1334, 1353 (Fed. Cir. 2003). In its Remand Determination , Commerce explained that, prior to this court’s decision in Dupont Teijin I , its prac tice was

to reduc e the per

centag e antidum

ping mar gin by the export

subsidy rate calcula ted in a c oncurre

nt counte rvailing duty investig ation in its

cash dep osit instru

ctions se nt to Customs, rather than increasing U.S. price under § 1677a

. Ap ply ing this me

thodolog y in its Final Determination , the Dep artment e xcluded Poly

plex from th e antidum

ping ord er on PET f

ilm from India based on its zero cash de posit rate, despite a dumping margin of 10.34 perc ent. The court struck down this action in Dupont Teijin I and instr ucted the Departm ent to “calcu

late Polyplex’s dumping margin af ter making the adjustments to export price required by 19 U.S.C. § 1677a and Commerce’s reasonable interpre tations thereof.” 273 F. Supp. 2d at 1352. The court stated that Commerce was free to arrive a t a new interpretation of that statutory provision in the light of the unique circumstances of this case—the first in which the Depa rtment ha s found tha

t a respondent received a larg er amount of countervailable export subsidies than the amount of dumping calculated in the antidumping investigation—so long a s the interpretation was supported by a “

reasoned analy sis.” Id. at 1353 n.11. Commerce ’s Remand Determination does provide a reasoned analy

sis for its new interpretation of the statute and, according ly, the courtC ONSOL . C OURT N O . 02-00463 P AGE 9

7 Similarly, the court rejec ts Polyplex’s claim that the Department is bound by previous interpretations of the statute that it has expressed at various stages of these proceedings. Although Commerce has indeed chang ed course several times on the meaning of “countervailing duty imposed”

in the con

text of con curren

t antidumpi

ng and c ounterva

iling dut y in vestiga tions, the Department is free to do so as explained above. This is particularly true where, as here, Commerce

has had to

develop a

nd shift its

interpre tation in r esponse t o this cour

t’s decis ion in Dupont Teijin I and the parties’ comments on the preliminary remand determination.

8 In the light of the Depa

rtment’s recent interpretation of the statute, Poly plex questions Commerce’s ability in the future to increase an exporter’s U.S. price following the a ctual (continued...) concludes that Commerce has adequately explained the rationale for its definitional change. As such, the court rejects Plaintiffs’ assertion that the Department is pre cluded from making adjustmen

ts to produ

cers’ U .S. price

as a res ult of par allel ant idumping and coun tervaili ng duty investig ations. 7 As discussed in Dupont Teijin I , the cour t afford s Chevrondeference to Commerce’s reasonable interpretation of ambiguous statutory terms articulated in the course of an antidumping determination. Id. at 135 1 (cit ing Pesquera Mares Australes L tda. v. United States , 266 F.3d 1 372, 1379– 80 (Fed . Cir. 2001 )); see Chevron, U.S.A., Inc. v. Natura l Res. Def. Council, Inc. , 467 U.S. 8 37, 842–43 (1984). T he statute at issue in structs Co mmerce t o increa se the price used to establish a foreign produce r’s export price or constructed export price by “the amount of

any counter vailing duty imposed on

the subje ct merchandise un der par t I of this subtitle to offset an export subsidy.” 19 U.S.C. § 1677a(c)(1) (C). Because the statute is silent or ambiguous with respect to the meaning of “imposed,” see Serampore , 11 CIT at 871, 6 75 F. Supp. at 1358, the cour

t must deci de wheth er the De partmen t’s inter pretation of the st

atute allow ing an upward adjustment to U.S. price upon the issuance of a counter vailing duty orde

r, but before any

duties are actually

assessed after an administrative review, 8 is permissible. TheC ONSOL . C OURT N O . 02-00463 P AGE 10

8 (...continued) assessment of duties pursuant to an administrative review. Although the Depa rtment’s prior practice does not seem to be affecte d by the new interpr etation, because the actual assessment of countervailing duties following an administrative review necessarily

flows from, and is a direct result of, an affirmative countervailing duty determination and the issuance of a countervailing duty order unde

r Part I of the statute, this issue is not ripe for the cour t’s review. court co ncludes t

hat it is. “Part I” of the statute is entitled “I MPOSITION OF C OUNTERVAI LI NG D UTIES ” and g overns, among o ther thing s, the pro cedure s for initi ating a nd conducting cou

ntervai ling duty investigations and the issuance of countervailing duty orders following affirmative determinations by the De partment and the U.S. International Tr ade Commission (“ITC”)

. See 19 U.S.C. §§ 1671–1671h (2000) . Section 1671 states the general rule that, after such affirmative determinations by both ag encies, “there shall be imposed upon such merchandise a countervailing duty .” Id. § 1671(a). The section does not explain how such a duty is to be “imposed .” Sectio n 1671d, w hich go verns “F inal dete

rmination s,” sheds

some lig ht on this issue, stating that Commerce “shall issue a countervailing duty order” upon its affirmative finding of countervailable subsidies and the ITC’s affirmative material injury determination. Id. § 1671d(c )(2). Th e next statu tory provision , which is e

ntitled “A ssessmen

t of duty ,” beg ins with a subsection entitled “Publication of countervailing duty order.” Id. § 1671e(a). The countervailing duty

order “directs customs officers to assess a c ountervailing duty e qual to the amount of the net countervailable subsidy ,” describes the subject merchandise, and “ requires the deposit of estimated countervailing duties pending liquidation of entries.” Id. The following subsecti on of the “

Assessme nt of duty ” provisi on, entitle d “I

mposition of

duties,” brings u s full cir cle to whe re P art I began , stating the general rule that entr ies of “merchandise subject to theC ONSOL . C OURT N O . 02-00463 P AGE 11

countervailing duty

order . . . shall be subject to the imposition of countervailing duties under section 1671(a).” Id. subsection (b)(1) (emphasis added) . The actual assessment of countervailing duties is addressed in Part III of the statute, which governs administrative reviews of both antidumping and countervailing duty determinations. See id. §§ 1675–1676a (2000)

. Based on this review of the statutory language and fra

mework, Commerce’s interpretation that a countervailing duty is “imposed on the subject merchandise under Part I ” upon the issuance of a countervailing duty order is reasonable. Part I makes clear that an affirmative finding of countervailable subsidies alone does not constitute the imposition of countervailing duties be cause th e IT C must then d etermine whether imports be

nefitting by t hose subsi dies cau se or threaten material injury to the domestic industry. See id. § 1671d(b)(1). Instead, the final result of affirmative determinations by both agencies under Part I is the Department’s issuance of a countervailing duty

order, which instructs customs to assess a countervailing duty . A countervailing duty

order instructing customs to assess countervailing duties rema ins in effect until it is expressly revoked, and counterva iling duties will be automatically asse ssed at the original cash deposit rate if an administrative revie w is not requested. 19 C.F.R. §§ 351.211–.212 (2003)

. In light of this statutory and regulatory

scheme, it is reasonable for the Department to consider a countervailing duty to be “imposed” upon the issuance of the countervailing duty

order. The court must next determine whether, based on its reasonable interpre tation of the statute, the Department correctly determined that Polyplex must be subject to the antidumping duty order be cause it dumped PET film in the United States at a margin of 10.34 perce nt.C ONSOL . C OURT N O . 02-00463 P AGE 12

9 Polyplex now argues that the D epartment erred as a matter of law in imposing an antidumpin

g duty order on its entrie s when its c ash depo sit rate i s zero. The court de clines to revisit th is issue. I n its rema nd order , the cour

t held that Commerce’s exclusion of Polyplex from the antidumping order on PET film based on a zero cash deposit ra te was not in accordance with law. Dupont Teijin I , 273 F. Supp. 2d at 1352. Accordingly , the court instructed the Departm ent that, “[i]f Commer ce conti nues to ca

lculate a dumping margin o f 10.34 pe rcent, Poly plex must be s

ubject to the antid umping du

ty o rder, w

hether o r not it is g iven a ca sh deposit rate of zero because of expected offsetting countervailing duties.” Id. at 1352–53. Polyplex’s main argument on this point 9 is that, because the revised final determination and antidumpin

g duty order w ere issu ed on the s ame day as the af firmativ e counte

rvailing duty determination, the Department should have increased Poly plex’s U.S. price by the amount of countervailable subsidies found in the countervailing duty order. This would have resulted in a de minimis dumping margin and the exclusion of Poly plex from the order. Poly plex’s arg ument has

weight . Notice o f Commerc e’s dete rmination that PET fi lm from India is being sold, or is likely to be sold, in the United States at less than fair value was published in the Federal Register on May 16, 2002. Final De

term. , 67 Fed. Reg. at 34,899. The Final Determination revealed that Polyple x’s weighted-average dumping margin was 10.34 percent. Id. at 34,901 n.2. Commerce published notice of its final determination in the countervailing duty

investigation on the same day

. Polyethy lene Terephthalate Film, Sheet, and Strip (PET Film) From I

ndia , 67 Fed. Reg. 34,905 (Dep’t Commerce Ma y 16, 2002) (final) . As discusse d above, however , an aff irmative final determinat

ion in a co

unterva iling dut y investigation does not constitute the imposition of countervailing duties. Th e Department reasonably

considers a countervailing duty to be imposed in the context of an investigation upon the issua nce of a counter vailing duty order. T hus, at the

time of Comm erce’ s Final Determination

in the antidumping duty investiga tion, no countervailing duties had been imposedC ONSOL . C OURT N O . 02-00463 P AGE 13

10 Absent Plaintiffs’ request to align the final countervailing duty determination with the final antidumping determination here, the countervailing duty order would ha

ve issued several months before the final antidumping duty determination. Accordingly , countervailing duties would have b een imposed on the subj ect merchandi se at the ti me of the fin al LTFV determination under Commerce’s interpretation of the statute, and Poly plex would have been excluded from the antidumping duty or der. If, upon rema

nd , the Department continues to stand (continued...) accord ing to the Departm ent’s ne

w interpr etation, and Commer

ce ther efore a rgues t hat it properly re fused to adjust Polyplex’s U.S. price in the Remand Determination

. This does not end the matter here because Commerce issued an amended final determination in the

antidumpin

g invest igation on the sam e day

that the c ounterva

iling dut y order issued. Amended Final Determ

. , 67 Fed. Reg. at 44,176 ; Poly ethy lene Ter ephthala te Film, Sheet, and Strip (PET Film) from I ndia , 67 Fed. Reg. 44,179 (Dep’t Commerce July 1, 2002) (countervailing duty

order) . In this procedural posture, Commerc e’s cursory explanation that there were no countervailing duties imposed at the time of the Final Determination

is inadequate. The dumping margin calculations can a nd do change after the issuance of a final determination. See Amended

Final De term. , 67 Fed. Reg. at

44,176 (a

mending a respon dent’s du mping ma

rgin to correct for “ministerial errors”). G iven Commerce’s fairly

routine procedure of amending final an tidumping

duty determinations, it i s not a suf ficient a nswer to s ay

that the ma

rgin calculated in the Final Determination was binding. Here, the purported final dete rmination was not truly final until the amendment issued approximately six weeks later. Accord ingly , upon re

mand, Comme

rce must e

xplain how it

will fair ly a nd consist

ently apply its interpretation of “ imposed” when a final determination or an amended fina l determination issue s on the sam e day as a coun tervaili ng duty order on the subje ct merchandise due to a pe

titioner’ s alignm ent requ

est. 10 Commerce ’s secon d remand determination shou

ld alsoC ONSOL . C OURT N O . 02-00463 P AGE 14

10 (...continued) by Po lyp lex’s dumpin

g marg in as cal culated

in the orig

inal Final Determination , Commerc e must provide a reasona ble explan ation for

its failur e to t ake the c ounterva

ilable sub sidies into consider ation whe n it re-pr omulgat ed all of the dumpin

g marg ins, inclu

ding tha t of Poly plex, in the Amended Final Determination and antidumping duty orde r that issued on the same day as the countervailing duty

order. analy ze how the

extension o f proce edings on the gr ounds of extraordina

ry complica tion affe cts the application of this new interpretation. As Poly plex points out, only petitioners and Commerce

have the power to extend a c ounterva

iling dut y de terminat ion on the g

rounds tha

t it is extraordinarily complicated unde r 19 U.S.C. § 1671b(c)(1), and only petitioners have the power to request an alignment of the antidumping and counter vailing duty proc eedings, see 19 C.F.R. § 351.210(b)(4)(I). T

hus, upon remand, the Department must fully address Polyplex’s concer n that petitioners could unfairly c ontrol the respondents’ fate in an antidumping determination and resulting antidumping duty order by f

iling an extension and/or alignment request in the counter vailing duty investig ation, an

d how simult

aneously -issued a ntidumping

duty determinations and countervailing duty orders are to be treated. Conclusion For all of the foregoing

reasons, the Remand Determination is sustained in part and remanded in part. Commerce is to seek to restore the par ties, as far as is possible, to the position they would have be en had they be en able to act on the Department’s new interpre tation of “imposed,” and the court’s determination in this matter, prior to the issuance of the AmendedC ONSOL . C OURT N O . 02-00463 P AGE 15

Final Determination . Commerc e must file its redet erminati on within 45 day s of the e ntry of this opinion, and Plaintiffs and Polyplex shall have fourteen day s thereafter to file their objections. Commerce may r

eply within eleven da

ys therea fter. SO ORDERED.

_______________________ Jane A. Restani Chief Judge DATED: New York, New York This 17 th of December, 2003.