United States Court of Appeals
for the Federal Circuit
__________________________
GPX INTERNATIONAL TIRE CORPORATION
AND HEBEI STARBRIGHT TIRE CO., LTD.,
Plaintiffs-Appellees,
AND
TIANJIN UNITED TIRE & RUBBER
INTERNATIONAL CO., LTD.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant,
AND
TITAN TIRE CORPORATION AND UNITED STEEL,
PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED
INTERNATIONAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC,
Defendants-Appellants,
AND
BRIDGESTONE AMERICAS, INC. AND
BRIDGESTONE AMERICAS TIRE OPERATIONS,
LLC,
Defendants-Appellants.
__________________________
2011-1107, -1108, -1109
__________________________
GPX INTL TIRE CORP v. US 2
Appeals from the United States Court of International
Trade in consolidated case no. 08-CV-0285, Judge Jane A.
Restani.
__________________________
ON PETITION FOR REHEARING
__________________________
MICHAEL D. PANZERA, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, filed a petition
for rehearing en banc and a letter brief for defendant-
appellant United States. With him on the petition were
TONY WEST, Assistant Attorney General, STUART F.
DELERY, Acting Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and FRANKLIN E. WHITE, JR., Assis-
tant Director. Of counsel was JOHN D. MCINERNEY, Chief
Counsel, Office of the Chief Counsel for Import Admini-
stration, United States Department of Commerce, of
Washington, DC.
TERENCE P. STEWART, Stewart and Stewart, of Wash-
ington, DC, filed a combined petition for panel rehearing
and rehearing en banc and a letter brief for defendants-
appellants Titan Tire Corporation, et al. With him on the
petition and letter brief were WESLEY K. CAINE and
ELIZABETH J. DRAKE.
DANIEL L. PORTER, Curtis, Mallett-Prevost, Colt &
Mosle LLP, of Washington, DC, filed responses to the
petitions and a letter brief for plaintiffs-appellees GPX
International Tire Corporation and Hebei Starbright Tire
Co., LTD. With him on the responses and letter brief
were JAMES P. DURLING, WILLIAM H. BARRINGER, and
MATTHEW P. MCCULLOUGH.
3 GPX INTL TIRE CORP v. US
FRANCIS J. SAILER, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt, LLP, of Washington, DC, filed a
response to the petitions and a letter brief for plaintiff-
appellee Tianjin United Tire & Rubber International Co.,
LTD. With him on the response and letter brief were
ANDREW T. SCHUTZ and MARK E. PARDO.
__________________________
Before RADER, Chief Judge, LINN and DYK, Circuit
Judges.
DYK, Circuit Judge.
ORDER
The United States and Titan Tire Corporation, et al.
petition for rehearing of our December 19, 2011, decision
in GPX International Tire Corp. v. United States, 666 F.3d
732 (Fed. Cir. 2011). In that decision, we held that “in
amending and reenacting the trade laws in 1988 and
1994, Congress adopted the position that countervailing
duty law does not apply to NME countries,” and thus,
“countervailing duties cannot be applied to goods from
NME countries.” Id. at 745.
On March 13, 2012, following our decision in GPX, but
while this petition for rehearing was pending, Congress
enacted legislation to apply countervailing duty law to
NME countries. Application of Countervailing Duty
Provisions to Nonmarket Economy Countries, Pub. L. No.
112-99, 126 Stat. 265 (2012) (to be codified at 19 U.S.C.
§§ 1671, 1677f-1). 1 Section 1(a) of the new legislation
provides that “the merchandise on which countervailing
duties shall be imposed . . . includes a class or kind of
merchandise imported, or sold (or likely to be sold) for
importation, into the United States from a nonmarket
economy country.” Id. § 1(a) (to be codified at 19 U.SC.
1 The full text of the March 13, 2012, countervailing
duty legislation is attached to this order.
GPX INTL TIRE CORP v. US 4
§ 1671(f)(1)). The legislation also applies retroactively to
“(1) all proceedings initiated under subtitle A of title VII
of [the Tariff Act of 1930] on or after November 20, 2006;
(2) all resulting actions by U.S. Customs and Border
Protection; and (3) all civil actions, criminal proceedings,
and other proceedings before a Federal court relating to
[those] proceedings.” Id. § 1(b). The proceeding in this
case was initiated on November 27, 2006, pursuant to
section 702(b)(1) of the Tariff Act of 1930. 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
(Dep’t of Commerce Nov. 27, 2006). As a result, section
1(a) of the new legislation applies to this proceeding. In
order to implement World Trade Organization (“WTO”)
requirements, section 2(a) of the new legislation further
provides for an adjustment of antidumping duties on
imported goods where the Department of Commerce
(“Commerce”) determines that a countervailable subsidy
“has increased the weighted average dumping margin” for
the goods, to prevent double counting of countervailing
duties and antidumping duties. § 2(a) (to be codified at 19
U.SC. § 1677f-1(f)(1)). However, the double-counting
provision is applicable only to proceedings initiated “on or
after the date of the enactment of [the] Act.” Id. § 2(b)(1).
Thus, the double counting provision would not apply to
this case.
Following the enactment of the new legislation, we
requested and received further briefing from the parties
“commenting on the impact of this legislation on further
proceedings in this case.”
I
Having reviewed the briefs submitted by the parties,
two things are clear from the new legislation. First,
Congress clearly sought to overrule our decision in GPX.
5 GPX INTL TIRE CORP v. US
The language of section 1(b) is clear in this respect.
Moreover, during the floor debate, our decision in GPX
was referenced by name and discussed at length. One of
the bill’s sponsors specifically noted that the new legisla-
tion “overturns an erroneous decision by the Federal
circuit [sic] that the Department of Commerce does not
have the authority to apply these countervailing duty
rules to nonmarket economies.” 158 Cong. Rec. H1167
(daily ed. Mar. 6, 2012) (statement of Rep. Dave Camp).
Second, in section 2(a) of the new legislation, Con-
gress changed the law with respect to double counting,
but made the new rule against double counting applicable
only to proceedings initiated on or after March 13, 2012,
the date of Act’s enactment. As noted, the new provision
would not apply to this case. Congress enacted the dou-
ble-counting provision of the new legislation in order to
“bring[] the United States into compliance with its obliga-
tions by requiring the Department of Commerce to make
an adjustment when there is evidence of a double rem-
edy.” 2 Id. Congress clearly did not view this statutory
2 On March 11, 2011, the Appellate Body of the
WTO determined that the United States’ “imposition of
double remedies, that is, the offsetting of the same sub-
sidization twice by the concurrent imposition of anti-
dumping duties calculated on the basis of an NME meth-
odology and countervailing duties, is inconsistent with
Article 19.3 of the [Agreement on Subsidies and Counter-
vailing Measures].” Appellate Body Report, United
States—Definitive Anti-Dumping and Countervailing
Duties on Certain Products from China, ¶ 611(d),
WT/DS379/AB/R (Mar. 11, 2011). However, “we have
repeatedly indicated that adverse WTO decisions have no
bearing on the reasonableness of Commerce’s actions.”
Dongbu Steel Co. v. United States, 635 F.3d 1363, 1368
(Fed. Cir. 2011). Accordingly, “[w]e will not attempt to
perform duties that fall within the exclusive province of
the political branches, and we therefore refuse to overturn
Commerce’s [] practice[s] based on any ruling by the WTO
or other international body unless and until such ruling
GPX INTL TIRE CORP v. US 6
change as reflecting a clarification of existing law, but
rather as a change in the law. Thus, when Congress
added the double counting provision, we must “assume
Congress intended to effect some change in the meaning
of the statute.” AK Steel Corp. v. United States, 226 F.3d
1361, 1368 (Fed. Cir. 2000). The clear implication of this
new provision is that the pre-existing statute did not
contain a prohibition against double counting. As the
Supreme Court has noted, “[w]hen Congress acts to
amend a statute, we presume it intends its amendment to
have real and substantial effect. . . . The reasonable
construction is that the amendment was enacted as an
exception, not just to state an already existing rule.”
Stone v. INS, 514 U.S. 386, 397 (1995). In short, a statute
cannot be interpreted in a manner that would “negate[]
its recent revision, and indeed would render it [] largely
meaningless.” Rumsfeld v. Forum for Academic & Institu-
tional Rights, 547 U.S. 47, 57-58 (2006). We conclude that
the statute prior to the enactment of the new legislation
did not impose a restriction on Commerce’s imposition of
countervailing duties on goods imported by NME coun-
tries to account for double counting. 3
II
Although the scope of the new legislation is clear, ap-
pellees nonetheless contend that the new legislation is
unconstitutional because (1) it attempts to prescribe a
has been adopted pursuant to the specified statutory
scheme.” Corus Staal BV v. Dep’t of Commerce, 395 F.3d
1343, 1349 (Fed. Cir. 2005).
3 The Court of International Trade (“Trade Court”)
in GPX International Tire Corp. v. United States, 645 F.
Supp. 2d 1231, 1240-43 (Ct. Int’l Trade 2009), had previ-
ously found that Commerce’s imposition of both counter-
vailing duties and antidumping duties on NME countries
under the pre-existing law amounted to “unreasonable”
double counting. The new legislation makes clear that
this theory was not correct.
7 GPX INTL TIRE CORP v. US
rule of decision for this case after our decision in GPX was
rendered; and (2) it improperly creates a special rule
applicable only to this case (or perhaps a few others) due
to the different effective dates in the two provisions; it
thus creates a situation in which both antidumping and
countervailing duties may be imposed, without providing
a mechanism to account for potential double counting.
We think the first of these arguments is without
merit. The Supreme Court has counseled that “[w]hen a
new law makes clear that it is retroactive, an appellate
court must apply that law in reviewing judgments still on
appeal that were rendered before the law was enacted,
and must alter the outcome accordingly.” Plaut v. Spend-
thrift Farm, Inc., 514 U.S. 211, 226 (1995). Unlike Plaut,
where Congress attempted to undo a final judgment, see
id. at 227, this case was still pending on appeal when
Congress enacted the new legislation, as our mandate had
not yet issued, see Fed. R. App. P. 41(b)-(c); see also
Beardslee v. Brown, 393 F.3d 899, 901 (9th Cir. 2004) (“An
appellate court’s decision is not final until its mandate
issues.”). It makes no difference that Congress, in the
legislative history, addressed the decision in this case by
name. See, e.g., Ileto v. Glock, Inc., 565 F.3d 1126, 1139
(9th Cir. 2009) (“[A] statute affecting pending cases,
indeed designating them by name and number, [does] not
offend separation of powers because Congress was chang-
ing the law applicable to those cases rather than imper-
missibly interfering with the judicial process.” (citing
Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440
(1992))). Thus, no issue is raised by the fact that our
decision in GPX had issued prior to enactment of the new
legislation because this case remained pending on appeal.
The second issue, however, is a question of first im-
pression as to which we have received only cursory brief-
ing. The government urges that “[t]o the extent that
appellees . . . argue that the new law is unconstitutional,
GPX INTL TIRE CORP v. US 8
such an argument should be decided by the trial court in
the first instance.” United States Br. 4 n.3. We agree
that this issue should be considered by the Trade Court in
the first instance.
Upon consideration of the petition for rehearing of our
December 19, 2011, decision in this case,
IT IS ORDERED THAT:
(1) The petitions for rehearing are granted.
(2) This case is remanded to the Trade Court for a
determination of the constitutionality of the new legisla-
tion and for other appropriate proceedings.
(3) The mandate of this court will issue on May 16,
2012.
FOR THE COURT
May 9, 2012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
PUBLIC LAW 112–99—MAR. 13, 2012 126 STAT. 265
Public Law 112–99
112th Congress
An Act
To apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket Mar. 13, 2012
economy countries, and for other purposes. [H.R. 4105]
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. APPLICATION OF COUNTERVAILING DUTY PROVISIONS TO
NONMARKET ECONOMY COUNTRIES.
(a) IN GENERAL.—Section 701 of the Tariff Act of 1930 (19
U.S.C. 1671) is amended by adding at the end the following:
‘‘(f) APPLICABILITY TO PROCEEDINGS INVOLVING NONMARKET
ECONOMY COUNTRIES.—
‘‘(1) IN GENERAL.—Except as provided in paragraph (2),
the merchandise on which countervailing duties shall be
imposed under subsection (a) includes a class or kind of mer-
chandise imported, or sold (or likely to be sold) for importation,
into the United States from a nonmarket economy country.
‘‘(2) EXCEPTION.—A countervailing duty is not required to
be imposed under subsection (a) on a class or kind of merchan-
dise imported, or sold (or likely to be sold) for importation,
into the United States from a nonmarket economy country
if the administering authority is unable to identify and measure
subsidies provided by the government of the nonmarket
economy country or a public entity within the territory of
the nonmarket economy country because the economy of that
country is essentially comprised of a single entity.’’.
(b) EFFECTIVE DATE.—Subsection (f) of section 701 of the Tariff 19 USC 1671
Act of 1930, as added by subsection (a) of this section, applies note.
to—
(1) all proceedings initiated under subtitle A of title VII
of that Act (19 U.S.C. 1671 et seq.) on or after November
20, 2006;
(2) all resulting actions by U.S. Customs and Border Protec-
tion; and
(3) all civil actions, criminal proceedings, and other pro-
ceedings before a Federal court relating to proceedings referred
to in paragraph (1) or actions referred to in paragraph (2).
SEC. 2. ADJUSTMENT OF ANTIDUMPING DUTY IN CERTAIN PRO-
CEEDINGS RELATING TO IMPORTS FROM NONMARKET
ECONOMY COUNTRIES.
(a) IN GENERAL.—Section 777A of the Tariff Act of 1930 (19
U.S.C. 1677f–1) is amended by adding at the end the following:
126 STAT. 266 PUBLIC LAW 112–99—MAR. 13, 2012
‘‘(f) ADJUSTMENT OF ANTIDUMPING DUTY IN CERTAIN PRO-
CEEDINGS RELATING TO IMPORTS FROM NONMARKET ECONOMY
COUNTRIES.—
‘‘(1) IN GENERAL.—If the administering authority deter-
mines, with respect to a class or kind of merchandise from
a nonmarket economy country for which an antidumping duty
is determined using normal value pursuant to section 773(c),
that—
‘‘(A) pursuant to section 701(a)(1), a countervailable
subsidy (other than an export subsidy referred to in section
772(c)(1)(C)) has been provided with respect to the class
or kind of merchandise,
‘‘(B) such countervailable subsidy has been dem-
onstrated to have reduced the average price of imports
of the class or kind of merchandise during the relevant
period, and
‘‘(C) the administering authority can reasonably esti-
mate the extent to which the countervailable subsidy
referred to in subparagraph (B), in combination with the
use of normal value determined pursuant to section 773(c),
has increased the weighted average dumping margin for
the class or kind of merchandise,
the administering authority shall, except as provided in para-
graph (2), reduce the antidumping duty by the amount of
the increase in the weighted average dumping margin esti-
mated by the administering authority under subparagraph (C).
‘‘(2) MAXIMUM REDUCTION IN ANTIDUMPING DUTY.—The
administering authority may not reduce the antidumping duty
applicable to a class or kind of merchandise from a nonmarket
economy country under this subsection by more than the portion
of the countervailing duty rate attributable to a countervailable
subsidy that is provided with respect to the class or kind
of merchandise and that meets the conditions described in
subparagraphs (A), (B), and (C) of paragraph (1).’’.
Applicability. (b) EFFECTIVE DATE.—Subsection (f) of section 777A of the
19 USC 1677f–1 Tariff Act of 1930, as added by subsection (a) of this section,
note. applies to—
(1) all investigations and reviews initiated pursuant to
title VII of that Act (19 U.S.C. 1671 et seq.) on or after the
date of the enactment of this Act; and
(2) subject to subsection (c) of section 129 of the Uruguay
Round Agreements Act (19 U.S.C. 3538), all determinations
PUBLIC LAW 112–99—MAR. 13, 2012 126 STAT. 267
issued under subsection (b)(2) of that section on or after the
date of the enactment of this Act.
Approved March 13, 2012.
LEGISLATIVE HISTORY—H.R. 4105 (S. 2153):
CONGRESSIONAL RECORD, Vol. 158 (2012):
Mar. 6, considered and passed House.
Mar. 7, considered and passed Senate.
Æ