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GPX Int'l Tire Corp. v. United States

United States Court of Appeals, Federal Circuit

March 13, 2015

GPX INTERNATIONAL TIRE CORPORATION, HEBEI STARBRIGHT TIRE CO., LTD., TIANJIN UNITED TIRE & RUBBER INTERNATIONAL CO., LTD., Plaintiffs-Appellants, MINISTRY OF COMMERCE, PEOPLE'S REPUBLIC OF CHINA, Plaintiff
v.
UNITED STATES, Defendant-Appellee, BRIDGESTONE AMERICAS, INC., BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, Defendants, TITAN TIRE CORPORATION, UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, Defendants-Appellees

Page 1137

Appeals from the United States Court of International Trade in No. 1:08-cv-00285-JAR, 1:08-cv-00286-JAR, 1:08- cv-00351-JAR, 1:08-cv-00352-JAR, 1:08-cv-00358-JAR, 1:08-cv-00360-JAR, 1:08-cv-00361-JAR, Judge Jane A. Restani.

JAMES P. DURLING, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington, DC, argued for plaintiffs-appellants GPX International Tire Corporation, Hebei Starbright Tire Co., Ltd. Also represented by DANIEL L. PORTER, CHRISTOPHER DUNN, MATTHEW PAUL MCCULLOUGH, ROSS BIDLINGMAIER, WILLIAM H. BARRINGER.

MARK B. LEHNARDT, Lehnardt & Lehnardt, LLC, Liberty, MO, for plaintiff-appellant Tianjin United Tire & Rubber International Co., Ltd.

ALEXANDER V. SVERDLOV, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington DC, argued for defendant-appellee United States. Also represented by STUART F. DELERY, JEANNE E. DAVIDSON, FRANKLIN E. WHITE, JR.; JOHN D. MCINERNEY, DANIEL JOSEPH CALHOUN, DEVIN S. SIKES, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.

ELIZABETH DRAKE, Stewart and Stewart, Washington, DC, argued for defendants-appellees Titan Tire Corporation, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Also represented by TERENCE PATRICK STEWART, PATRICK JOHN MCDONOUGH.

Before DYK, O'MALLEY, and TARANTO, Circuit Judges. OPINION filed by Circuit Judge DYK. Concurring opinion filed by Circuit Judge O'MALLEY.

OPINION

Page 1138

Dyk, Circuit Judge.

GPX International Tire Corp. and Hebei Starbright Tire Co., Ltd. (collectively, " GPX" ) appeal a Court of International Trade (" Trade Court" ) decision upholding the Department of Commerce's (" Commerce" ) imposition of both antidumping and countervailing duties. Commerce acted pursuant to a 2012 law that overruled this court's decision in GPX International Tire Corp. v. United States, 666 F.3d 732 (Fed. Cir. 2011) (" GPX I " ), reh'g granted, 678 F.3d 1308 (Fed. Cir. 2012) (" GPX II " ), and permitted Commerce to impose countervailing duties with respect to non-market economy (" NME" ) countries retroactively to proceedings initiated on or after November 20, 2006. Because the new law does not violate the Ex Post Facto Clause of Article I, Section 9 of the U.S. Constitution or the Due Process Clause of the Fifth Amendment to the U.S. Constitution,

Page 1139

we affirm.

Background

Much of the background relevant to this case is recounted in this court's prior decisions in GPX I and Guangdong Wireking Housewares & Hardware Co. v. United States, 745 F.3d 1194 (Fed. Cir. 2014) (" Wireking " ).

Under the Tariff Act of 1930, as amended, Commerce may impose two types of duties on imports that injure domestic industries: (1) antidumping duties on goods " sold in the United States at less than . . . fair value," 19 U.S.C. § 1673; and (2) countervailing duties on goods that receive a " countervailable subsidy" from a foreign government, id. § 1671(a).

For goods imported from market economy countries, Commerce may impose both antidumping and countervailing duties. Until recently, Commerce maintained that it could not impose countervailing duties on imports from NME countries--focusing on Soviet bloc countries--because of the difficulty in calculating countervailing subsidies in those countries. See GPX I, 666 F.3d at 735. This longstanding Commerce position was upheld by this court in Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1314--18 (Fed. Cir. 1986), as not being contrary to the statute. Thereafter, Congress ratified Commerce's prior position by amending and reenacting the countervailing duty statute in 1988 and 1994. See GPX I, 666 F.3d at 738--39.

Beginning on November 20, 2006, however, Commerce indicated that it was considering taking a new position by applying countervailing duties to imports from China, a NME country. See Notice of Initiation of Countervailing Duty Investigations: Coated Free Sheet Paper from the People's Republic of China, Indonesia, and the Republic of Korea, 71 Fed. Reg. 68,546, 68,549 (Dep't of Commerce Nov. 27, 2006) (" Given the complex legal and policy issues involved, and on the basis of the Department's discretion as affirmed in Georgetown Steel, the Department intends during the course of this investigation to determine whether the countervailing duty law should now be applied to imports from [China]." ). And on March 29, 2007, Commerce issued a memorandum stating that " the Department's policy that gave rise to the Georgetown Steel litigation does not prevent us from concluding that the [Chinese] Government has bestowed a countervailable subsidy upon a Chinese producer." Countervailing Duty Investigation of Coated Free Sheet Paper from the People's Republic of China--Whether the ...


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