### Slip Op. 04- 70

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 antidumping duty

second remand determination sustained.] Dated: June 18, 2004

Wi lm er C ut ler Pi cke rin g Ha le a nd D orr LLP ( John D. Gre enwald , Ronald I. Meltzer , and Ly nn M. Fischer Fox ) 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 antidumping case is once again bef ore the court following a second remand to the United States Department of Commerce , International Trade Administra

tion (“Com

merce, ” “the D epartme

nt,” or “ ITA” ) to more f

ully consider its determination with respect to Defendant-I ntervenor Polyplex Corporation L imited (“Polyplex”). Polyplex is an India

n producer of poly

ethylene ter

ephthalate film, sheet, and strip (“PET film”), which the Department found in its final antidumping duty (“AD”) determination to be sold, or likely to be sold, in the United States at less than fair va lue (“LTFV” ). Dupont Te ijin Films USA, LP v. United States , 273 F. Supp. 2d 1347, 1348 (Ct. Int’l Trade 2003) (“ Dupont Te ijin I ”); see Dupont Teijin Films USA, LP v. United States , No. 02-00463, Slip Op. 03-157 (Ct. Int’l Trade Dec. 4, 2003) (“ Dup ont Tei ji n II ”) (deny

ing Plaintiffs’ motion for preliminary injunction after the Department determined to include Poly plex in the AD order upon first remand). The sole issue is whether, in issuing an amended AD determination simultaneously with the CVD order on PET film from India, the De partment was required to recalculate Poly plex’s dumping margin to account for the counterva iling duties that were thus “imposed” under Commerce’s new interpretation of the applicable statute, 19 U.S.C. § 1677a(c)(1)( C), and thus, to exclude Polyplex from the AD order. See Dupont Teijin Films USA, LP v. United States , 297 F. Supp. 2d 1367, 1374 (Ct. Int’l Trade 2003) (“ Dup ont Tei ji n III ”). Absent such an amendment, Poly plex’s dumping margin of 10.34 percent would mandate its inclusion in the antidumping duty order. See Dupont Teijin I , 273 F. Su pp. 2d at 1 353. I

n its Final Re sults of Re determination Purs uant to Court Remand

(Dep’t Commerce Mar. 3, 2004) [hereinafter Second Remand Determination ], the Departm ent more

fully explained

its new pol icy

in deter mining r esponde nts’ U.S. p rices inC ONSOL . C OURT N O . 02-00463 P AGE 3

1 This provi sion requi res th e Depar tment to in crease the pr ice us ed to e stabl ish a f oreign producer’s export or constructed export price by “the amount of any

countervailing duty

imposed on the subject merchandise under Part I of this subtitle to offset an export subsidy.” 19 U.S.C. § 1677a(c)(1)(C). simultane ous AD an

d CVD inve stigations, but con cluded th at it was n

ot author ized to ame

nd its original determination in order to recalculate Polyplex’s dumping margin. On a ppeal, Polyplex claims that such an amendment was required, or at lea st permitted, under the statute, and that the Department failed to comply with the court’s instructions upon second remand. For the rea sons that follow, the Second Remand Determination is sustained. JURISDIC TION & STAND ARD OF R EVIEW The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) . The court will uphold Commerce ’s Second Remand Determination if it is supported “by substantial evidence on the record” and is otherwise “in accor dance with law.” 19 U.S.C. § 1516a(b)(1)(B) (I) (2000). BACKGROUND In its final AD determination, the Departm ent dete

rmined tha

t Poly plex dumped

PET film in the U.S. market at a margin of 10.34 perce nt, but excluded Polyplex from the AD order on the ground that, after adjusting Poly plex’s cash deposit rate to account for the countervailable e xport subsidies found in a concurrent CVD investigation, “there e xists no dumping upon which an affirmative determination could be based.” Poly ethy lene Ter ephthala te Film, Sh eet, and

Strip from I ndia , 67 Fed. Reg. 34,899, 34,901 (Dep’t Commerce Ma y 16, 2002) [hereinaf

er Final Determination ]. In Dupont Teijin I , the cour t held tha t this deci sion was not in acc ordance with law and rema

nded it to Co mmerce w

ith instruc

tions to “c alculate

Poly plex’s dump ing mar

gin after making the adjustments to export price required by 19 U.S.C. § 1677a 1 and Commerce’sC ONSOL . C OURT N O . 02-00463 P AGE 4

2 The cour

t noted tha

t: The limits of Commerce’s discretion in setting cash deposit rates is not at issue here. Plaintiffs do not cha

llenge th e zero ca sh deposit rate. They merely see

k to keep Polyplex subject to the discipline of an antidumping duty orde r, which may r

equire future p eriodic

reviews and ultima

tely the asse ssment of d

uties. Dupont Teijin I , 273 F. Supp. 2d at 1352 n.10.

3 In other words, “Commerce considers countervailing duties to be imposed upon the issuance of a countervailing duty order.” Remand De

term. at 4 cmt. 1. reasona ble inter pretations there of.” 273 F. Supp. a t 1352. The

court we nt on to instr

uct that, “[i]f Commerce continues to calculate a dumping margin of 10.34 pe rcent for Polyplex, Poly

plex must be subject to the antidumping duty orde r, whether or not it is given a cash deposit rate of zero because of expected

offsetting countervailing duties.” 2 Id. at 1352–53. In its Final Results of Redetermination Pursuant to Court Remand (Dep’t Commerce Aug. 11, 2003) [hereinafter Remand Determination ], the Department explained that it “now interprets 19 U.S.C. § 1677a(c)(1)(C) as requiring an increase in the respondent’s export or constructed export price by the amount of countervailing duties imposed pursuant to a countervailing duty

order.” 3 Remand De

term. at 8. As applied here, Poly plex’s exports were not subject to a CVD order at the time Commerce issued the final antidumping dete rmination. Id. Therefore, Commerce determined to include Poly plex in the AD order, even though the Department issued a revised final determination along with the AD order on PET film on the same day that it issued the CVD orde r on the subject merchandise. Dup ont Tei ji n III , 297 F. Supp. 2d at 1374

. In Dup ont Tei

ji n III , the cour

t sustaine d the Dep artment’ s Remand Determination in part,C ONSOL . C OURT N O . 02-00463 P AGE 5

4 After reviewing the statutory framework, the court concluded that it was re asonable for Commerce to consider countervailing duties to be “imposed on the subject merchandise under part I of this subtitle” upon the issuance of a countervailing duty

order, because part I

governs CVD investigations which will culminate in the issuance of a CVD order only upon affirmative determinations of both Commerce and the I nternational Trade Commission (“ITC”). Dupont Tei ji n III , 297 F. Su

pp. 2d at 1 372–73. Further, there is n o certa inty as to CVD d

uties until all opportunities for amendment have expired and the CVD order actually issues.

5 In Dup ont Tei

ji n III , Polyplex strongly

objected to its inclusion in the AD order. Polyplex argued that counte rvailing duties were in fact “imposed” upon its entries, e ven under the Department’s new interpretation of § 1677a(c )(1)(C), because the CVD order w as issued on the same day a s the amended final AD determination and AD order. T hus, Polyplex claimed that Commerce should have made the upwards adjustment to its U.S. price and excluded it from the AD order on PET film from India. 297 F . Supp. 2d at 1373. Polyplex also disputed the long-term impact of the De partment’s new interpretation, arguing that, in similar cases where export subsidies contribute to a respondent’s lower-priced sales of subject me

rchandi se in the U .S. marke t, the dome stic indust

ry would be a

ble to effectively

control whether a particular respondent would be included in an AD order by filing an extension or alignment request in the companion CVD investigation. Id. at 1373–74. As the court noted in Dup ont Tei ji n III , Commerce may e

xtend a CVD determination on the grounds that it is extraordinarily complicated under 19 U .S.C. § 1671b(c)(1), and petitioners, by filing an alignment request, can ensure that final AD and CVD determinations issue simultaneously under 19 U.S.C. § 1671d(a)(1) and Commerce’s reg ulations. Id. at 1374. finding that its interpretation of § 1677a(c)(1)(C) wa s reasonable and entitled to deference

. 4 Id. at 1373. N everthe less, the court fo und that th e Depar

tment had failed to adequa tely address several concerns raised by Polyplex in challenging the Department’s application of its new interpretation of “imposed” when calculating Polyplex’s dumping margin. The court also found that the Department had failed to fully consider the broader implications of its genera l application of the new interpretation, which may unfairly skew pr

oceedings in petitioners’ favor. 5 See id. at 1374. T

hus, the c ourt rema

nded the A

D determ ination on

PET film fr

om Ind ia to Commerce

for a se cond time

with instru

ctions to “ explain how

it will fai rly and cons istently apply its interpretation of ‘imposed’ when a final determination or an amended final determination issues on the same day as a countervailing duty

order on the subjectC ONSOL . C OURT N O . 02-00463 P AGE 6

6 The court explained that “[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.” Id. at 1374. Thus, the court stated that “Commerc e must pro vide a re asonable explanation for its f

ailure to take the counter vailable subsidies into consideration when it re-promulgated all of the dumping mar gins, including that of Polyplex, in the Amended Final Determination and antidumping duty orde r that issued on the same day a s the countervailing duty order.” Id. n.10.

7 The court noted that absent the domestic industry ’s request to align the final countervailing duty

determination with the final antidumping duty determination, the countervailing duty

order would have issued before the final dete rmination in the antidumping investigation. Thus, absent petitioners’ alignment request her e, countervailing duties would have been “imposed” on the subject merchandise at the time of the or iginal final determination in the antidumpin

g invest igation , and Poly

plex would h ave bee

n excluded

from the a

ntidumping

duty order. Id. merchandise.” 6 Id. The cour t also instr

ucted the Departm ent to ana

lyze whether certain procedural extensions that would delay the issuance of a CVD order or align it with the issuance of the AD order, d evices a vailable only to the Dep artment a

nd the dome stic indust

ry that would effectively

prevent countervailing duties from being “ imposed” prior to issuance of the AD order, would unfairly allow pe

titioners to dictate the outcome of concurrent antidumping and countervailing duty

investigations when, as here, export subsidies are presumed to ca use the responde nts’ lowe r-price d sales of

subject me

rchandi se in the U .S. marke t. 7 Id. at 1374, 1368 n.1 (explaining the economic theory behind § 1677a’s price adjustment provision). The court noted that Commerce should “seek to restore the parties,” to the extent possible, “to the position they would have been had they been able to act on the Department’s new inter pretation of ‘imposed,’ and the court’s determination in this matter, prior to the issuance of the Amended Final Determination .” Id. at 1374–75. Commerce

issued its Second Remand Determination on March 3, 2004. As ordered by the court, the Department first addressed Poly plex’s concern that domestic petitioners would beC ONSOL . C OURT N O . 02-00463 P AGE 7

able to dictate the outcome of concurrent AD/CVD investig ations by filing an e xtension or alignment request in the CVD investigation. Second Re mand Dete

rm. at 5–6; see supra

n.5 (explaining statutory extension and alig nment of CVD proceedings). As a preliminary matter, Commerce explained that it is required by sta tute to align a CVD investigation with a companion AD investigation if the petitioner makes such a request, as ha ppened here. Second Remand Determ. at 5. The Department then noted that “even if the alig nment provision were discretionary, the

record in this proceeding does not support the conclusion that the pe titioners manipulated or controlled the results of the AD determination by requesting alignment of the CVD determination,” because the alignment re quest was filed before either the CVD or the AD preliminary dete

rmination issued. Id. Further, Commerce pointed out that “Poly plex’s manipulation concerns spring from Commerce’s interpr etation of the term ‘imposed’ in 19 U.S.C. § 1677a(c)(1)(C), an interpretation that was not known to the petitioners at the time they filed their request for alignment.” Id. As a result, Commerce found the petitioners here did not manipulate Polyplex’s AD margin by requesting alignment of the investiga tions. Id. at 5–6. Regarding the extension of proceeding s on the ground of extraordinary complication, the Departm ent noted

that this is

discreti onary , so that it c an asses s such re quests on a case-b y- case basis. Id. at 13. Commerce

next addre ssed the i ssue of “ how it will f

airly and cons istently

apply its interpretation of ‘imposed’ when a final determination or an a mended final determination issues on the same day a s a countervailing duty order on the subject merchandise.” Dup ont Tei ji n III , 297 F. Supp. 2d at 1374. Commerce explained that its final determinations are based solely on the information on the record at the time of the determination. Second Re mand Dete

rm. at 6.C ONSOL . C OURT N O . 02-00463 P AGE 8

8 By statute, Commerc e is required to “establish procedures for the c orrection of ministerial errors in final determinations.” 19 U.S.C. § 1673d(e). Ministerial errors include “errors in addition, subtraction, or other arithmetic function, cleric al errors resulting from inaccurate copy

ing, duplication, or the like, and any other type of unintentional e rror which [Commerce] considers ministerial.” Id. Commerce’s regulations provide that it will “correc t any ministerial error by a

mending the final determination or final results of review.” 19 C.F.R. § 351.224(e). Commerce

explained

that, whil e it is awa

re of two other ci rcumstan ces unde r which it will issue an amended final determination, those circumstances do not exist in this case. Second Remand De

term. at 7. The first situation is where Commerce must publish an amended final determination following a “Timken Notice,” which re sults from an express granting of relief by the court. Id. (citi ng Timken Co. v. United States , 893 F.2d 337 (Fed. Cir. 1990); 28 U.S.C. § 2643(c)(2000)) . The sec ond circ umstance arises w hen the me

rchandi se found by Co mmerce t o be sold at less than fair va lue diffe rs in some r

espects from the m erchan

dise foun d by the I TC to be causing material injury to the domestic industry. Id. In su ch a situa tion, Comme

rce is required to modify its ca

lculations in the AD order to reflect the findings of the I TC, because an AD order can only be issued agains t mercha

ndise tha t was both f

ound to be

dumped an

d found to be injuring the domestic industry

. Id. (disc ussi ng Badger-Powhatan v. United States , 10 CIT (continued...) While Commerce stated that it “likely” will adjust U.S. prices if a n AD determination issues on the same day as a CVD o rder, th e Depar tment stre ssed that

“these a re not the facts in t his proceeding.” Id. The CVD order here was published after the final AD determination, and “any information received by

Commerce after the particular deter mination at issue is not part of the reviewable record.” Id. (quot ing Alloy Piping Product, I nc. v. United States , 201 F. Supp. 2d 1267, 1280 (Ct. Int’l Trade 2002)). As a result, Commerce explained that it should not have, and in fact c ould not ha

ve, cons idered t

he post- Final Determination CVD order in calculating Polyplex’s U.S. price. See id. Although Commerce admitted that there are limited circumstanc es under which it may amend final AD determinations, such amendments are limited to corre cting “unintentional errors that occurred while operating upon re cord information before it when it issued the determinations.” 8 Id. Thus, Commerce maintained that, despite its amendment of the FinalC ONSOL . C OURT N O . 02-00463 P AGE 9

8 (...continued) 241, 633 F. Supp. 1364 (1986) ). Commerce stressed that, with this type of revision to a respondent’s AD margin, the recor d is closed for the purposes of accepting ne w information, but that Comme

rce must r

evise the scope of the AD or

der, and thus the f inal AD ma

rgin, to correspond with the scope of the I TC’s affirmative material injury finding. Id. at 7–8. Commerce maintained that neither of these circumstance s is present in this case, and the court agree s. Determination

here to correct a ministerial error in the c alculation of another respondent’s dumping margin, it was not authorized to revise its margin calc ulation for Polyplex because there were no “errors” to corre ct. Id. at 6–7. The Department noted that this court has held that the ministerial error provisions do “not give the age ncy authority

to upset final decisions where no errors have occurred.” Id. at 6 (q uoti ng Badger-Powhatan , 10 CIT at 245, 633 F. Supp. at 1369). As a result, “if an amended final AD deter mination is issued on the same day as a CVD order on the same merchandise, Commerce cannot re ly upon the ministerial error pr ovision to reflect the duties imposed by a CVD order in its amended final AD determination.” Id. at 7. Thus , Commerce concluded that, because counter vailing duties had not been imposed at the time of the Final Determination , it did not err in failing to increase Poly plex’s U.S. prices in the AD determination. Id. The Department next addressed the court’s instructions to restore the pa rties to the position they would have been ha d they been a

ware of the new interpretation of “imposed” before the issuance of the Amended Final Determination . Commerce reiterated that it was required to align the CVD investigation with the AD duty investigation under § 1671d(a)(1), and that it was not permitted to amend its final AD determination to adjust Polyplex’s export prices under the ministerial error provision. Id. at 9. “Thus, it is Commerce’s position, given the specific restrictions imposed by the statute, that the parties would be in the same position hadC ONSOL . C OURT N O . 02-00463 P AGE 10

they been a

ble to act on Commerce’s new interpretation of ‘imposed,’ a nd the court’s determination in this matter.” Id. After addressing the parties’ c omments to the draft second remand r esults, Com

merce c oncluded

that, sinc e counte

rvailing duties ar e not “imp osed” un

til a CVD order has been issued, Poly plex must be included in the AD order, “given the statutory restraints and the Court’s initial ruling on this matter.” Id. at 19. This action followed. DISCUSSION As noted above, in Dup ont Tei ji n III , the court upheld Commerce’s interpretation of “imposed ” in the c ontext of a

n AD inves tigation

to mean th e issuanc e of a co unterva iling dut y order

. See 19 U.S.C. § 1677a(c)(1)(C) (requiring Commerce to adjust respondent’s U.S. price by “the amo unt of any

counter vailing duty imposed on

the subje ct merchandise un der par t I of this subtitle to offset a n export sub sidy

”). On a ppeal, Po lyp lex claims that the De partmen t failed t o comply with the court’s instructions reg arding the application of the new interpre tation. Polyplex asks the c ourt to re

verse a nd reman d this acti on to the D epartme nt once a gain wi th instruc tions to make an u

pwards a djustment t

o Poly plex’s U.S. price un

der 19 U. S.C. § 1677a (c)(1) (C) , becau se countervailing duties were imposed on Poly plex’s imports on the same date that the Department issued its Amended Final Determination and AD order. According to Poly plex, Commerce was require d to amend

its Final Determination

and recalculate Poly

plex’s dumping margin since the AD and CVD orders issued on the same day . Each of these issues are addressed be low. A. Whether the Department Has F ailed to Fully Address Polyplex’s Concerns that Petitioners Can Manipulate the Results of an AD Investigation By Filing Procedural Extension Requests in the CVD Investigation Polyplex claims that the Department has failed to a dequately a

ddress its manipulation concerns. Polyplex asserts that “the Department’s interpretation of the statute gives theC ONSOL . C OURT N O . 02-00463 P AGE 11

9 Polyplex asserts that, because counte rvailing duties were imposed on the same day that the amended final determination and AD order issued, a n adjustment should have been made under Badger-Powhatan

and Borlem S.A. – Empreedimentos Industriais v. United States , 13 CIT 535, 718 F. Supp. 41 (1989), aff’d , 913 F.2d 933 (Fed. Cir. 1990). See infra Part B (discussing whether an adjustment to Polyplex’s export price was r equired). petitioners an unfair advantage . . . to control the outc ome of concurrent CVD/AD investigations.” Mem. of Law of Def.-Interve

nor Polyplex Corp. Ltd. Opp. D ep’t Commerce’s Second Redeterm. on Remand (“Poly plex Br.”) at 9. Polyplex sugg ests that, to comply with the court’s instructions in Dup ont Tei ji n III , the Department needed to explain why it reads the statute in a manner “that converts a[] [petitioner’s] extension request into a make-or-break margin adjustment” when “there is a viable r easonable alternative reading of the same statute” that requires—or, at a minimum, authorizes—Commerce to make an adjustment to a respondent’s U.S. price where, as here , the AD final determination is amended and the AD order issues on or after the date the CVD order is issued. Id. at 5–6. Respondin

g to the D epartme

nt’s explan

ation in its Second Remand Determination that alignment of concurrent CVD and AD investig ations is mandatory if petitioners re quest it under 19 U.S.C. § 1671d(a)(1), Polyplex states that “the fa ct that an extension must be granted does not mean that the Department is prohibited from making a § 1677a( c)(1)(C) adjustment in coextended cases.” 9 Id. at 6. Because the Department has inter preted § 1677a(c)(1)(C) to require a CVD order to be in place prior to the issuance of the AD final determination, Polyplex maintains that “the adjustmen

t to U.S. pr

ice for export subs idies is ma

de a nulli ty in most, if not

all, companion AD/CVD investigations. This could not be the intent of Congress in drafting the statute.” Id. at 8.C ONSOL . C OURT N O . 02-00463 P AGE 12

10 Commerce also pointed out that extension/alignment is not the only tool available to a petitioner who seeks to control the timing of AD and CVD orders. Rather than file AD and CVD petitions simultaneously, Petitioners might simply delay the filing

of a CVD petition if they ar e concer ned that c ounterva

ilable sub sidies, if

accoun ted for in the AD de

terminat ion, would exclude a foreign producer fr om an AD order. The court finds that Commerce did comply with the court’s remand order to analy ze the risks of petitioner manipulation in simultaneous AD and CVD investigations. As the Department explained in the Second Remand Determination , its extension of proceedings based on extraord inary complica tion is discretiona

ry , so that it c an analy

ze the risk s of manip

ulation in such insta nces on a case-b y- case ba sis. Alig nment of th e issuanc e of the o rders in simultaneously-filed AD and CVD inve stigations, however, is required by 19 U.S.C. § 1671d(a )(1) upo n a petitio ner’s r

equest. T hus, alig nment is a s tatutory

right e xplicitly

grante d to the domestic industry by

Congress. As Commerce pointed out in its determination upon remand, there a re leg itimate re asons for

petitione rs to req uest the a lignmen t of AD an

d CVD proc eeding s, such as a desire to simultane ously

argue both case s before

the I TC. 10 Nevertheless, the court recog nizes that there may be some r isk of manipulation given Commerce ’s interpretation of “impos ed” bec ause, in a ligned c ases, co

unterva iling dut ies would never be “imposed” prior to the issuance of a f inal AD determination. As a result, a respondent like Poly plex would b e include d in an AD order de spite the f act that c ounterva

iled subsid

ies, if accounted for in calculating that re spondent’s U.S. price, would obliterate the dumping. As the Department explained, however, the risk of manipulation by petitioners is slight given the uncertainty of

an investigation’s final results, coupled with the extremely unusual circumstance present ed here , where

a forei gn prod

ucer’s counter vailed su bsidies fu lly a ccounte d for its le ssthan-fair-value sales, thereby reducing any

AD cash deposits on its imported goods to zero.C ONSOL . C OURT N O . 02-00463 P AGE 13

11 At this poin

t, the zero cash dep osit rate

is only an estima

te of dutie s. It a

utomatica lly becomes the assessment rate, however, if no a dministrative review is requested. See 19 C.F.R. § 351.212(c)(1)(i) (2004).

12 Furthermore, if countervailing duties continue to off set its AD margin, Polyplex may utilize proceedings which eventually will relieve it of AD discipline entirely . There is nothing which prevents inclusion of Polyplex within the reg ime of the order until it is determined whether AD margins will continue to be fully offset. Thus, this issue will not arise in the overwhelming majority of simultaneous AD/CVD investigations, even if they are aligned. I

t is, therefore, unlikely

that Congress had any

such situation i n mind in en acting

the AD la

ws, leaving Comme

rce fr ee to dev ise a solu tion to this problem. Further , “even

if the petitioners

request an alig nment, Comm erce will continu e to follow its e stablishe d practi ce of re ducing AD cash d

eposits for counte

rvailing duties tha

t it determin ed to impose to offset export subsidies.” 11 Second Re mand Dete

rm. at 12. The court found in Dup ont Tei

ji n III that this pr

actice , which pr

events th e actua

l assessme

nt of doubl e duties when subsidized and LTFV sales ar e related, keeps the U.S. in compliance with its WTO obligat ions, a g oal pres

umably desired by C ongre ss. 12 297 F. Supp. 2d at 1370 n.5. Thus, the court fin ds that the

Departm ent’s determinat ion complie d with the c ourt’s ins tructions to addre ss the potential for unfair petitioner manipulation in companion AD/CVD investigations. As shown, the Department has provided a reasonable explanation for why the risk of manipulation should not i

mpact its i

nterpre tation of 1 9 U.S.C. § 16 77a(c) (1)(C) i n concur rent inve stigatio ns. B. Whether the Second Remand DeterminationExplained How t he Depart ment Wi ll Fairly and Consistently Apply Its Interpretation of “Imposed” When a Final or Amende d Final AD Deter minatio n Issues on th e Same Day as a CV

D Order o n the Same M erchandis e As explained supra , Commerce’s determination upon second remand explained that it likely will adjust respondents’ U.S. prices whe n it simultaneously issues a final ADC ONSOL . C OURT N O . 02-00463 P AGE 14

13 Poly plex first q

uotes 19 U .S.C. § 1673 , which a uthorizes t

he Depa rtment to i

mpose antidumping duties “in an amount equal to the amount by which the normal value exceeds the export price (or constructed export price) for the merc handise.” Next, Polyplex, points to § 1673e(a), which requires Commerce to publish an antidumping duty order within seven day s of an ITC material injury

determination that directs customs officials “to assess an antidumping duty equal to the amount by which the normal value of the merchandise exceeds the e xport price (or the constructed export price) of the mercha ndise.” Polyplex emphasizes that these provisions require that the antidumping duties imposed in the AD order equal the a mount by which the normal value of the merchandise exceeds its export price. Export price (or c onstructed export price), in turn, is governed by 19 U.S.C. § 1677a(c)(1)(C), which requires that the price be increased by

“the amount of any

countervailing duty

imposed on the subject merchandise under part I of this subtitle to offset an export subsidy .” Polyplex sugge sts that when these three provisions are read together, they “compel an upward adjustment to export price and constructed export price where, as here[,] countervailing duties have be en ‘imposed’ (as interpreted by the Department) prior to the antidumping duty order.” Polyplex Br. a

t 12. These pr ovisions, h owever , do not man date the result Poly

plex sugg ests. Be cause countervailing duties are not “imposed” until a CVD order is published, and be cause the final AD determination on PET film f rom I ndia was issued be fore the

CVD orde

r, the que stion her

e is whether the Depa rtment wa s requir

ed to ame nd its Final Determination in order to reca lculate Polyplex’s dumping margin in light of the subsequently-imposed counte rvailing duties. For the reasons discussed infra , Commerc e was not require d to issue a

n amende d determ

ination a s to Poly plex. determination and a CVD order on the same mercha ndise. The Department explained, however, that it is only permitted to amend its final determinations to corre ct for ministerial errors and, accordingly , it is not appropriate to amend a final AD determination to account for a subsequently-issued CVD orde r in calculating dumping margins. Thus, the De partment maintaine d that it co rrectly included Poly plex in the A

D order on PET film f

rom I ndia. I n its appeal, Poly

plex arg ues that Co mmerce i s required to amend i

ts final A D determ ination to a

djust Polyplex’s U.S. price by

the countervailing duties that were subsequently imposed in the CVD order. 13 The cour

t disagr ees. Commerce’s inclusion of Polyplex in the AD order is consistent with the statute a nd the court’s rulings in this matter. The court held in Dupont Teijin I that Commerce may not e xcludeC ONSOL . C OURT N O . 02-00463 P AGE 15

Polyplex from the AD order on PET film from I ndia on the basis of a zero cash deposit rate, when its dumping margin is greater than de minimis . 273 F. Supp. 2d at 1352. It is undisputed that, if Polyplex’s export price is not adjusted for countervailable export subsidies, Polyplex’s dumping margin is 10.34 percent. Id. at 1350. It is also undisputed that no adjustment can be made to a respondent’s export price unless countervailing duties ha ve been “imposed” under 19 U.S.C. § 1677a(c)(1)(C), and that, under Commerce’s c ourt-approved interpretation of the statute, countervailing duties are not “imposed” in an AD investig ation until a countervailing duty order is issued. Dup ont Tei ji n III , 297 F. Supp. 2d at 1373. Finally, it is undisputed that no CVD order had issued against Poly plex at the time that Commerce calculated Polyple x’s dumping margin at 10.34 percent and published notice of its final determination in the AD investigation. Id. at 1374. Thus, it is clear that the Department’s calculation of Poly plex’s dumping margin was correct as reported in the final AD determination. The only question, then, is whethe r the Dep artment w as requi red to am end its Final Determination to account for the countervailing duties that were “imposed” on Poly plex’s exports on the same day that the antidumping duty order

issued. See id. (explaining that Commerce simultaneously a mended the Final Determination

to correct a ministerial error in another re spondent’s dumping margin, issued the antidumping duty orde r, and issued the countervailing duty order on PET film from India). The court finds that such an amendment was not required he re. It is a basic rule of administrative law that Commerce must base its determinations on information in the administrative record at the time the determination is made. See, e .g. , Neuweg Fertigung v. United States , 16 CIT 724, 726–27, 797 F. Supp. 1020, 1022 (1992) (“Any information received by [th e IT A] after the part icular d etermina tion at issu

e is not pa

rt of the r eviewa bleC ONSOL . C OURT N O . 02-00463 P AGE 16

administr ative re cord.”) . Once a

final determinat

ion is made , the statu

te only expressly permits the Department to amend it to correct “ministerial errors” in the original final determination. 19 U.S.C. § 167 1d(e). Su

ch erro rs includ

e “err ors in add ition, subtr

action, o r other a

rithmetic function, clerical errors resulting fr om inaccurate copy

ing, duplication, or the like, and any other type of unintentional err

or which the [Department] considers ministerial.” Id. It is clear from the language of this provision that it is meant to allow the Department to correct minor, nonsubstantive errors in its final determinations. It does not authorize the De partment to amend a final determination in order to consider a subsequent event, such a s the issuance of a CVD order in a parallel proceeding, that would alter the original margin calculation. These principles were explored in detail in Badger-Powhatan . In that case, the cour t considered whether the Department wa s required to amend its final AD determination when the products later found by

the ITC to be causing ma terial injury wer

e significantly

fewer in number than those included in the ITA’s dumping ma rgin calculation and AD order. 10 CI T at 243, 633 F. Supp. at 1367. In addressing the issue of whether Commerce was required to a mend its final determination to re calcula te the dum

ping mar gin, the court sta ted that “ [i]t is now we ll established that amendment, before or after r emand, is appropriate when the age ncy has utilized a legally improper method in making a determination or when the orig inal determination contains an error of inadvertence or mistake.” Id. at 244, 63 3 F. Supp. at 1368; see Borlem , 13 CIT at 541, 546, 718 F. Supp. at 46, 49 (holding that, despite time limits and finality conc erns, ITC has authority to reconsider

a final material injury

determination upon remand where, due to an amended LTFV de

termination, “the ITC made its finding of injury based upon material and signific ant inac curate

facts” ); see also SKF USA Inc. v. United States , 254 F.3d 1022, 1029 (Fed.C ONSOL . C OURT N O . 02-00463 P AGE 17

14 SKF , howe ver, i s dis tingu ishab le beca use th e agency is n ot vo lunt arily requ estin g a court-ordered remand to corre ct an error or to implement changes in policy

. See 254 F.3d at 1029–30. Cir. 2001) (“Remand to an agency is generally

appropriate to correct simple errors, such a s clerical errors, transcription errors, or erroneous calculations.”). 14 Badger-Powhatan

and Borlem

are rea di ly di st in gui sha bl e fr om th e pr ese nt cas e. In Badger-Powhatan , Commerce knew that the ITC had c hanged the scope of the final determination before it issued its AD order; it just failed to act upon that information. I n Borlem , ITC a cted upon errone ous infor

mation. He

re, the A D order issued pr ior to the C VD order , so that no countervailing duties had been “imposed” on Poly plex’s merchandise as of the final determination, and ITA was a ware of all relevant facts. As a r esult, the Department’s original determination correctly

disregarded the countervailable export subsidies when calculating Polyplex’s U.S. price. Thus, Commerce did not use a “le gally imprope r method” in arriving at its determination, which would warrant an amendment. Similarly , as Commerce discusses in the Second Remand Determination , there was no other “error” in c alculating Polyplex’s dumping margin that would be remedied by looking to information already in the administrative record. As a result, Commerce determined that it was not permitted to amend its final AD determination under § 1671d(e). Polyple x seeks to impose upon Commerce the duty to amend its final determinations to take into account a dispositive event—the issuance of the CVD order —which

occurr ed outside

the admin

istrative record in the AD proceed

ings. Th is is imper

missible a s a purely administr

ative act under c ontrolling case la w. Thus, th e Depar

tment’s Second Remand Determination

reasonably

concluded that it was not permitted to amend the final determination here, and that Polyplex must be included in the AD orde r.C ONSOL . C OURT N O . 02-00463 P AGE 18 CONCLUSION For all of the foregoing

reasons, the Second Remand Determination is sustaine d in its entirety. Commerce

was not permitted to amend its final determination to account for a subsequently-imposed counter vailing duty orde

r on the subject merchandise. As a result, the Department properly

determined to include Polyplex in the AD order on PET f ilm from India. While addr

essing a ll of the c ourt’s c oncerns

upon rema

nd, Commer

ce corr ectly conclude d that it was unable to exclude Polyplex from the order. A ccordingly , the determination of the Department of Commerce upon second remand is sustained.

/s/ Jane A. Re stani Jane A. Restani Chief Judge DATED: New York, New York This 18 th of June, 2004.