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JBF RAK LLC v. United States

United States Court of Appeals, Federal Circuit

June 24, 2015

JBF RAK LLC, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee, MITSUBISHI POLYESTER FILM, INC., DUPONT TEIJIN FILMS, SKC, INC., Defendants

Page 1359

Appeal from the United States Court of International Trade, in No. 13-cv-00211, Senior Judge Judith M. Barzilay.

JACK MLAWSKI, Galvin & Mlawski, New York, NY, argued for plaintiff-appellant.

MELISSA M. DEVINE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by JOYCE R. BRANDA, JEANNE E. DAVIDSON, PATRICIA M. MCCARTHY; DEVIN S. SIKES, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC.

Before DYK, WALLACH, and HUGHES, Circuit Judges.

OPINION

Page 1360

Wallach, Circuit Judge.

Appellant JBF RAK, LLC (" JBF RAK" ) appeals the United States Court of International Trade's (" CIT" ) decision sustaining the U.S. Department of Commerce's (" Commerce" ) final results of the administrative review covering polyethylene terephthalate film (" PET Film" ) from the United Arab Emirates (" UAE" ) for the period of review from November 1, 2010 through October 31, 2011. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, 78 Fed.Reg. 29,700 (Dep't of Commerce May 21, 2013) (final results of antidumping duty administrative review; 2010-2011) (" Final Results" ). For the reasons set forth below, we affirm.

Background

Commerce issued an antidumping duty order covering PET Film from UAE in November 2008. See Polyethylene Terephthalate Film, Sheet, and Strip from Brazil, the People's Republic of China, and the United Arab Emirates, 73 Fed.Reg. 66,595 (Dep't of Commerce Nov. 10, 2008) (antidumping duty orders and

Page 1361

amended final determination of sales at less than fair value for the United Arab Emirates). JBF RAK is a manufacturer and exporter of PET Film from UAE, and pursuant to 19 U.S.C. § 1675(a)(1) (2006), on November 30, 2011, it requested that Commerce conduct an administrative review of the antidumping duty order for this period of review. Commerce initiated its review in December 2011. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 76 Fed.Reg. 82,268 (Dep't of Commerce Dec. 30, 2011) (initiation). However, before Commerce published its preliminary results, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray Plastics America, Inc. (collectively " domestic producers" ) filed an allegation of targeted dumping[1] against JBF RAK on November 16, 2012. In that petition, the domestic producers argued Commerce should not use the average-to-average comparison method typically used in administrative reviews[2] because that method would not account for the price differences of JBF RAK's merchandise, and should instead use an averageto-transaction method of comparison.

On December 7, 2012, Commerce published its preliminary results and assigned JBF RAK a dumping margin of 5.31% using its average-to-average comparison methodology. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, 77 Fed.Reg. 73,010, 73,010-11 & n.5 (Dep't of Commerce Dec. 7, 2012) (preliminary results of antidumping duty administrative review; 2010-2011) (" Preliminary Results" ). In its accompanying Preliminary Decision Memorandum, Commerce indicated it " did not have sufficient time to fully analyze [the targeted dumping issue] for purposes of these preliminary results" and that it would " address [the domestic producers'] targeted dumping allegation at a later date." Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates A-520-803 (Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review) (Dep't of Commerce Nov. 30, 2012) (J.A. 123-31).

On March 8, 2013, Commerce published a post-preliminary determination addressing the domestic producers' allegation of targeted dumping. See Polyethylene Terephthalate Film, Sheet, and Strip from the United Arab Emirates, A-520-803 (Post-Preliminary Results Analysis Memo for JBF RAK LLC) (Dep't of Commerce Mar. 8, 2013) (J.A. 164-65) (" Post-Preliminary Determination" ). Using an average-to-transaction comparison methodology, Commerce determined JBF RAK had engaged

Page 1362

in targeted dumping and assigned it a revised dumping margin of 9.80%. After interested parties were invited to comment on Commerce's targeted dumping analysis, Commerce continued to apply the average-to-transaction comparison methodology and carried on the dumping margin of 9.80%. See Final Results, 78 Fed.Reg. at 29,700-01.

JBF RAK appealed to the CIT, and in July 2014, that court denied JBF RAK's motion for judgment on the agency record. JBF RAK LLC v. United States, 991 F.Supp.2d 1343 (Ct. Int'l Trade 2014). Before the CIT, JBF RAK challenged, inter alia, Commerce's targeted dumping analysis, and disputed Commerce's authority to apply the average-to-transaction comparison method in administrative reviews. The CIT held that Commerce provided a legitimate explanation for applying the average-to-transaction method in the review, and sustained the Final Results.

JBF RAK appeals and this court has jurisdiction pursuant to 28 U.S.C. ...


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