Thai Plastic Bags Industries Co. v. United States , 774 F.3d 1366 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
THAI PLASTIC BAGS INDUSTRIES CO., LTD.,
MASTER PACKAGING, INC., AND
INTEPLAST GROUP, LTD.,
Plaintiffs-Appellants,
v.
UNITED STATES, POLYETHYLENE RETAIL
CARRIER BAG COMMITTEE, HILEX POLY CO.,
LLC, AND SUPERBAG CORPORATION,
Defendants-Appellees.
______________________
2014-1237
______________________
Appeal from the United States Court of International
Trade in Nos. 1:11-cv-00408, 1:11-cv-00409, and 1:11-cv-
00416, Judge Donald C. Pogue.
______________________
Decided: December 24, 2014
______________________
IRENE H. CHEN, Chen Law Group LLC, of Rockville,
Maryland, argued for plaintiffs-appellants.
RYAN M. MAJERUS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-appellee
United States. With him on the brief were STUART F.
DELERY, Assistant General, JEANNE E. DAVIDSON, Direc-
2 THAI PLASTIC BAGS INDUSTRIES v. US
tor, and PATRICIA M. MCCARTHY, Assistant Director. Of
counsel on the brief was SCOTT D. MCBRIDE, Senior Attor-
ney, Office of the Chief Counsel for Trade Enforcement
and Compliance, United States Department of Commerce,
of Washington, DC.
DANIEL L. SCHNEIDERMAN, King & Spalding, of Wash-
ington, DC, argued for defendants-appellees Polyethylene
Retail Carrier Bag Committee, et al. With him on the
brief was JOSEPH W. DORN. Of counsel was STEVEN A.
JONES.
______________________
Before LOURIE, MOORE, and CHEN, Circuit Judges.
LOURIE, Circuit Judge.
Thai Plastic Bags Industries Co., Ltd., Master Pack-
aging, Inc., and Inteplast Group, Ltd. (collectively,
“TPBI”) appeal from the decision of the United States
Court of International Trade affirming the Final Results
of the sixth administrative review of the antidumping
duty order on polyethylene retail carrier bags from Thai-
land by the United States Department of Commerce
(“Commerce”) that excluded Blue Corner Rebate revenue
from the calculation of the cost of production. See Thai
Plastic Bags Indus. Co. v. United States, 904 F. Supp. 2d
1326 (Ct. Int’l Trade 2013) (“Decision”). Because we
conclude that the Court of International Trade did not err
in affirming Commerce’s decision, we affirm.
BACKGROUND
The Thai government provides rebates through the
Blue Corner Rebate (“BCR”) program to domestic manu-
facturers who produce and export products made from
raw materials imported by domestic suppliers. TPBI
manufactures polyethylene retail carrier bags in Thailand
and exports them to the United States. TPBI obtains the
polyethylene resin used for manufacturing those bags
THAI PLASTIC BAGS INDUSTRIES v. US 3
from Thai domestic suppliers, who in turn import the raw
materials for producing resin and pay the associated
import duties. To account for those duties, TPBI pays a
compensation fee to the resin suppliers in exchange for
tax certificates, which are then provided to the Thai
government upon export of the finished bag products in
exchange for rebates under the BCR program.
Commerce imposes remedial duties when foreign
products are sold at less than fair value, which Commerce
determines by comparing the exporter’s home market
price to the export price, i.e., the U.S. price. 19 U.S.C.
§ 1677b(a). If sales in the home market are made at
prices below the cost of production of the product, howev-
er, Commerce will disregard the prices of those sales
when determining the antidumping duty margin. 19
U.S.C. § 1677b(b). The calculation of the cost of produc-
tion is based on the cost of producing the finished product
for sale in the home market, and includes the cost of raw
materials as well as a catch-all category of general and
administrative expenses. See 19 U.S.C. § 1677b(b)(3). A
lower calculated cost of production results in the inclusion
of more sales at lower prices, which means a lower home
market price to compare to the export price, and hence a
smaller dumping margin and a lesser antidumping duty.
In 2004, Commerce determined that polyethylene re-
tail carrier bags from Thailand were being sold in the
United States at less than fair value, Polyethylene Retail
Carrier Bags from Thailand, 69 Fed. Reg. 34,122 (Dep’t of
Commerce June 18, 2004) and 69 Fed. Reg. 42,419 (Dep’t
of Commerce July 15, 2004); the International Trade
Commission determined that the domestic industry was
materially injured by those imports, 69 Fed. Reg. 47,957(USITC Aug. 6, 2004); and Commerce accordingly issued
an antidumping duty order, 69 Fed. Reg. 48,204 (Dep’t of
Commerce Aug. 9, 2004). Several years later, Commerce
conducted its sixth administrative review of that anti-
dumping duty order, covering the period of August 1, 2009
4 THAI PLASTIC BAGS INDUSTRIES v. US
through July 31, 2010. For this review, TPBI sought to
adjust the calculation of its cost of production downwards
by arguing that the Thai BCR program provided compen-
sation for the fees paid to its resin suppliers and therefore
that BCR revenue should be subsumed into production
costs. J.A. 891 (Issues and Decision Memorandum for the
Final Results). Because previous attempts to offset its
raw material costs had been rejected, TPBI incorporated
BCR revenue this time as an adjustment to its general
and administrative expenses. Id. The domestic industry
of polyethylene retail carrier bag manufacturers and
producers, as represented by the Polyethylene Retail
Carrier Bag Committee and its individual members, Hilex
Poly Co., LLC and Superbag Corporation, submitted
briefs commenting on the administrative review and
urging Commerce to deny the offset for BCR revenue to
TPBI’s general and administrative expenses.
Commerce determined that the BCR program related
to export sales rather than production costs, and therefore
that adjusting the calculation of TPBI’s cost of production
to take account of BCR revenue would be inappropriate.
J.A. 893; see Decision at 1330. Commerce noted that BCR
revenues are “somewhat analogous” to duty drawbacks,
where an adjustment to the U.S. price of the product
would correct for an imbalance resulting from import
duties that are factored into home market prices but
either rebated or not collected for exported products. J.A.
893; see generally 19 U.S.C. § 1677a(c)(1)(B); Saha Thai
Steel Pipe (Pub.) Co. v. United States, 635 F.3d 1335,
1340–41 (Fed. Cir. 2011). However, Commerce further
noted, TPBI had neither attempted to show a link be-
tween the import duties paid and the rebates received
from the Thai government, nor claimed BCR revenue as a
duty drawback. J.A. 893; see Decision at 1330 n.9; see
also Wheatland Tube Co. v. United States, 414 F. Supp. 2d
1271, 1276 (Ct. Int’l Trade 2006) (describing test for
evaluating duty drawback claims). Commerce therefore
THAI PLASTIC BAGS INDUSTRIES v. US 5
determined the antidumping margin without an offset for
BCR revenue in TPBI’s cost of production. TPBI appealed
to the Court of International Trade.
The Court of International Trade affirmed Com-
merce’s decision to not deduct BCR revenue from the
calculation of the cost of production. Decision at 1331.
The court agreed that rebates conditioned upon exporta-
tion are, by definition, not available for like products sold
in TPBI’s home market. Id. at 1330. The court held that
because the record reasonably supported a finding that
BCR revenue was export-conditional, substantial evidence
supported Commerce’s conclusion that BCR revenue was
not relevant to the cost of production. Id. at 1331.
TPBI timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(5).
DISCUSSION
We review decisions of the Court of International
Trade de novo, applying the same substantial evidence
standard of review that the Court of International Trade
itself applies in reviewing Commerce’s determinations.
Global Commodity Grp. LLC v. United States, 709 F.3d
1134, 1138 (Fed. Cir. 2013); PPG Indus., Inc. v. United
States, 978 F.2d 1232, 1236 (Fed. Cir. 1992). “Although
such review amounts to repeating the work of the Court of
International Trade, we have noted that ‘this court will
not ignore the informed opinion of the Court of Interna-
tional Trade.’” Diamond Sawblades Mfrs. Coal. v. United
States, 612 F.3d 1348, 1356 (Fed. Cir. 2010) (quoting
Suramerica de Aleaciones Laminadas, C.A. v. United
States, 44 F.3d 978, 983 (Fed. Cir. 1994) (emphasizing
that the Court of International Trade “reviewed the
record in considerable detail” and thus its opinion “de-
serves due respect”)).
TPBI primarily argues that Commerce improperly in-
flated the calculation of the cost of production by not
6 THAI PLASTIC BAGS INDUSTRIES v. US
factoring in BCR revenue. TPBI contends that because its
manufacturing costs include the compensation fees it pays
to its suppliers, and the BCR program is intended to offset
those compensation fees, BCR revenue should be deducted
from its cost of production. TPBI asserts that Commerce
usually allows offsets to general and administrative
expenses for miscellaneous income when it cannot deter-
mine that the revenue is related to a specific manufactur-
ing or selling activity, e.g., commissions or sales of
intermediate products. BCR revenue thus should be
treated similarly, according to TPBI, because it would be
impossible for TPBI to otherwise reasonably account for
the revenue. TPBI also contends that denying the ad-
justment—and refusing to otherwise account for the
compensation fee—distorts the dumping margin in con-
travention of Commerce’s mandate to calculate dumping
margins accurately. TPBI further asserts that because it
has no practical way to obtain the necessary documenta-
tion from third party suppliers to provide the requisite
link to qualify for duty drawback adjustments, Commerce
must adjust its calculation of the cost of production to
compensate for the imbalance.
The government responds that the rebates are provid-
ed only when a product is exported and only if it was
made from imported materials. The government also
notes that TPBI’s suppliers listed the tax certificate fee
separately from the actual cost of materials on sales
documents. The government contends that TPBI under-
stood that when it selected its suppliers and paid the
separate fee for tax certificates, it would provide the
certificates to the Thai government upon export to receive
an export-related rebate. Therefore, the government
asserts, BCR revenue is tied not to the manufacture or
production of merchandise, but to the export. The gov-
ernment also argues that Congress specifically addressed
the effect of import duties on exported goods with the duty
THAI PLASTIC BAGS INDUSTRIES v. US 7
drawback provision, but that TPBI did not seek a duty
drawback in this case.
The domestic industry adds that TPBI did not request
an adjustment to the price of its exported products to
counteract its BCR revenue. Because BCR revenues are
export-conditional, the domestic industry contends, de-
ducting them from general and administrative expenses
would create a mismatch between the calculated cost of
production and TPBI’s home market price.
We agree with the government and the domestic in-
dustry that revenue from the BCR program provided by
the Thai government should not be included in the calcu-
lation of the cost of production. Even if BCR revenue
serves to indirectly compensate for the import duties paid
on the raw materials eventually incorporated into TPBI’s
products, the rebates are strictly export-conditional.
Because the calculation of the cost of production is based
on producing finished products for sale in the home mar-
ket, i.e., goods for sale in Thailand, substantial evidence
supports that deducting BCR revenue from general and
administrative expenses, or any part of cost of production,
would be improper.
Commerce has consistently denied offsets to the cost
of production for revenue derived from the Thai BCR
program. Commerce rejected an adjustment to the calcu-
lation of the cost of production in the previous administra-
tive review of the same antidumping duty order, noting
that BCR revenues are related to export sales, not to the
production of merchandise. Polyethylene Carrier Bags
from Thailand, Fifth Administrative Review, at 19–20,
http://enforcement.trade.gov/frn/summary/thailand/2011-
5267-1.pdf (Dep’t of Commerce Mar. 8, 2011) (final admin.
review) (rejecting adjustment to Cost of Materials for BCR
revenues). Commerce also previously rejected a similar
adjustment to the cost of production for BCR revenue in
another antidumping duty administrative review. See
8 THAI PLASTIC BAGS INDUSTRIES v. US
Canned Pineapple Fruit from Thailand, at 34,
http://enforcement.trade.gov/frn/summary/thailand/03-
28802-1.pdf (Dep’t of Commerce Nov. 19, 2003) (final
admin. review) (noting that Commerce previously disal-
lowed cost adjustment for BCR revenue, see 64 Fed. Reg.
69,481, 69,484–85 (Dep’t of Commerce Dec. 13, 1999)
(final admin. review) (disallowing adjustment to cost of
materials for tax certificate revenues)). We therefore find
that substantial evidence supported Commerce’s decision
to deny adjusting the calculation of the cost of production
to account for BCR revenue, and that the Court of Inter-
national Trade did not err in affirming that decision.
Furthermore, while Commerce has stated that TPBI
could seek adjustments under the duty drawback provi-
sion, despite not being the entity that directly pays the
import duties, that is not the issue before us on appeal.
Although TPBI claims that it would be impossible for it to
obtain documentation to satisfy the link requirement for a
duty drawback, there is no evidence in the record that it
even attempted to make this argument to Commerce. We
therefore do not decide whether TPBI could have received
a duty drawback adjustment in a situation with a third
party.
CONCLUSION
We have considered the remaining arguments and
conclude that they are without merit. For the foregoing
reasons, the Court of International Trade’s decision
affirming Commerce’s denial of an offset to TPBI’s cost of
production for revenue from the Thai government’s Blue
Corner Rebate program is affirmed.
AFFIRMED