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Sumecht NA, Inc. v. United States

United States Court of Appeals, Federal Circuit

May 8, 2019


          Appeal from the United States Court of International Trade in No. 1:17-cv-00244-JCG, Judge Jennifer Choe-Groves.

          Mark B. Lehnardt, Baker & Hostetler LLP, Washington, DC, argued for plaintiff-appellant.

          Justin Reinhart Miller, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee United States. Also represented by Joseph H. Hunt, Reginald Thomas Blades, Jr., Jeanne Davidson, Washington, DC; David W. Campbell, Office of Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

          Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, for defendant-appellee SolarWorld Americas, Inc. Also represented by Stephanie Manaker Bell, Tessa V. Capeloto, Laura El-Sabaawi, Cynthia Cristina Galvez, Usha Neelakantan, Adam Milan Teslik, Maureen E. Thorson.

          Before Moore, Clevenger, and Wallach, Circuit Judges.

          Wallach, Circuit Judge.

         Appellant Sumecht NA, Inc., dba Sumec North America ("Sumec"), a U.S. importer, sued Appellee the United States ("Government") in the U.S. Court of International Trade ("CIT"), challenging the U.S. Department of Commerce's ("Commerce") liquidation[1] instructions. Sumec filed a motion for a preliminary injunction to enjoin the Government from liquidating certain entries, and the CIT issued an opinion and order denying Sumec's Motion. Sumecht NA, Inc. v. United States, 331 F.Supp.3d 1408, 1412 (Ct. Int'l Trade 2018); see J.A. 8-10 (denying reconsideration).

         Sumec appeals. We have jurisdiction over this appeal of an interlocutory order pursuant to 28 U.S.C. § 1292(c)(1) (2012). We affirm.


         I. Legal Framework

         Antidumping duties may be imposed on foreign merchandise sold, or likely to be sold, "in the United States at less than its fair value." 19 U.S.C. § 1673(1) (2012). At the conclusion of an investigation, if Commerce and the U.S. International Trade Commission have made the requisite findings, Commerce "shall publish an antidumping duty order" directing U.S. Customs and Border Protection ("Customs") officers to assess duties on imported goods covered by the investigation. Id. § 1673e(a). Commerce typically must "determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise." Id. § 1677f-1(c)(1). "A dumping margin reflects the amount by which the normal value (the price a producer charges in its home market) exceeds the export price (the price of the product in the United States) or constructed export price." SolarWorld Ams., Inc. v. United States, 910 F.3d 1216, 1220 (Fed. Cir. 2018) (internal quotation marks and footnote omitted); see 19 U.S.C. § 1677(35)(A).

         Relevant here, Commerce considers China to be a non-market economy country. See SolarWorld, 910 F.3d at 1220 n.3. A "nonmarket economy country" is "any foreign country that [Commerce] determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise." 19 U.S.C. § 1677(18)(A). "In antidumping duty proceedings involving merchandise from a non-market economy, . . . Commerce presumes that all respondents are government-controlled and therefore subject to a single country-wide rate," unless respondents "rebut this presumption" to demonstrate eligibility for separate rates, i.e., "individual dumping margins . . . for each known exporter or producer." Dongtai Peak Honey Indus. Co. v. United States, 777 F.3d 1343, 1349-50 (Fed. Cir. 2015) (footnote omitted) (citing, inter alia, 19 U.S.C. § 1677f-1(c)(1)).

         II. Factual Background and Procedural History

         This appeal relates to Commerce's antidumping duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules ("subject merchandise"), from the People's Republic of China ("China"). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China, 77 Fed. Reg. 73, 018, 73, 018 (Dep't of Commerce Dec. 7, 2012) (am. final determination & antidumping duty order). Based on its investigation, Commerce published its final determination, in which it concluded that Sumec's Chinese exporter of subject merchandise, Sumec Hardware & Tools Co., Ltd. ("Hardware"), was separate from the China-wide entity. See id. at 73, 019. Therefore, Commerce assigned Hardware a separate rate, which was an antidumping duty margin of 24.48%. See id. at 73, 021. In contrast, Commerce assigned the China-wide entity an antidumping duty margin of 249.96%. See id. In August 2015, the 24.48% margin assigned to Hardware was amended to 13.18% pursuant to the U.S. Trade Representative's decision to implement a related World Trade ...

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