ATC Tires Private Ltd. et al v. United States

Slip Op. 18- 
UNITED STATES COURT OF INTERNATIONAL TRADE
ATC TIRES PRIVATE LTD. and
ALLIANCE TIRE AMERICAS, INC.,
Plaintiffs,
v.
UNITED STATES,
Defendant.
Before: Gary S. Katzmann, Judge
Court No. 17-00064
OPINION
[Plaintiffs’ motion for judgment on the agency record is denied, and Commerce’s Final
Determination is sustained.]
Dated: -XQH
Eric C. Emerson and J. Claire Schachter, Steptoe & Johnson, LLP, of Washington, DC, argued for
plaintiffs. With them on the brief was Christopher G. Falcone.
John J. Todor, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendant. 	With him on the brief were
Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin
E. White, Jr., Assistant Director. Of counsel was Jessica DiPietro, Office of the Chief Counsel for
Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Katzmann, Judge: 	In this case, the court enters territory rarely traversed by judicial
decision -- namely the intersection of foreign Special Economic Zone (“SEZ”) and Export
Oriented Unit (“EOU”) programs with American laws that permit levying additional duties on
certain imports entering the United States to offset the unfair competitive advantages enjoyed by
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foreign producers that are subsidized by their respective governments. 1 	Plaintiffs ATC Tires
Private Ltd. (“ATC”) and Alliance Tires Americas, Inc. (collectively, “Alliance”) 2 bring this action
challenging the Department of Commerce’s (“Commerce”) final determination in a countervailing
duty investigation covering certain new pneumatic off-the-road tires from India that incentives
associated with Indian EOU and SEZ programs are countervailable subsidies. 	Countervailing
Duty Investigation of Certain New Pneumatic Off-the-Road Tires from India: Final Affirmative
Determination, and Final Affirmative Critical Circumstances Determination, in Part, 82 Fed. Reg.
2,946 (Dep’t Commerce Jan. 10, 2017) (“Final Determination”), P.R. 545, and accompanying
Issues 	and 	Decision 	Memorandum 	(Dep’t 	Commerce 	Jan. 	3, 	2017) 	(“IDM”), 	P.R. 	538.
Specifically, Alliance argues that Commerce’s determination that SEZ and EOU facilities were
within the customs territory of India and countervailable is neither supported by substantial
evidence nor in accordance with law. The court concludes that Commerce’s determination was
supported by substantial evidence and in accordance with law.
BACKGROUND
A. 	Legal Background
i. 	Countervailable Subsidies Generally.
To empower Commerce to offset economic distortions caused by countervailable subsidies
and dumping, Congress enacted the Tariff Act of 1930. Sioux Honey Ass’n v. Hartford Fire Ins.
1 The only such judicial decision identified by the parties to the instant litigation is Essar Steel Ltd.
v. United States, 34 CIT 1057, 721 F. Supp. 2d 1285 (2010). See also Essar Steel Ltd. v. United
States, Slip Op. 11–10, 2011 WL 238657 (CIT Jan. 25, 2011) (sustaining remanded Commerce
determination), aff’d in part, rev’d in part, 678 F.3d 1268 (Fed. Cir. 2012).
2 ATC is the subsidiary that produces the tires in India and Alliance is the collective name for both
plaintiffs (ATC and Alliance Tires America, Inc.) in this case, and these terms are used accordingly
throughout this opinion.
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Co., 672 F.3d 1041, 1046 (Fed. Cir. 2012). Under the Tariff Act’s framework, Commerce may --
either upon petition by a domestic producer or of its own initiative -- begin an investigation into
potential countervailable subsidies and, if appropriate, issue orders imposing duties on the subject
merchandise. Id.; 19 U.S.C. §§ 1671, 1673.
Commerce determines that a countervailable subsidy exists where a foreign government
provides a financial contribution which confers a benefit to the recipient. 19 U.S.C. §1677(5)(B).
A “financial contribution” includes “the direct transfer of funds, such as grants, loans, and equity
infusions, or the potential direct transfer of funds or liabilities, such as loan guarantees” and
“foregoing or not collecting revenue that is otherwise due.” 	19 U.S.C. § 1677(5)(D)(i)–(ii). 	A
subsidy must also be specific to be countervailable, and an export subsidy is considered specific
when it “is, in law or in fact, contingent upon export performance, alone or as 1 of 2 or more
conditions [for benefit eligibility].” 19 U.S.C. § 1677(5A)(B).
ii. 	Special Economic Zones and Export Oriented Units in India.
At issue in the case are Alliance’s production facilities, one operating in an SEZ in Tamil Nadu
and one operating in an EOU in Gujarat. 3 	Commerce has recognized that an SEZ may be
established to manufacture goods and to serve as a free trade and warehousing area pursuant to
India’s SEZ Act of 2005. See Polyethylene Terephthalate Firm, Sheet, and Strip from India, 80
FR 46,956 (Dep’t Commerce Aug. 6, 2015) (Preliminary Results), and accompanying Issues and
Decision 	Memorandum 	(“Indian 	PET 	PDM 	2015”) 	at 	13, 	unchanged 	by 	Polyethylene
Terephthalate Firm, Sheet, and Strip from India, 81 FR 7,753 (Dep’t Commerce Feb. 16, 2016).
As the Government of India has explained: “SEZ/EOU units are designated areas located within
3 Alliance has explained that EOUs operate in the same manner as SEZs. 	ATC Initial
Questionnaire Response at Exhibit 24A. 	Commerce does not dispute this conclusion, and
accordingly the terms are used interchangeably.
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India territory for the generation of additional economic activity within the country and for the
promotion of exports. 	By Indian law, companies that operate SEZ/EOU units are entitled to
exemptions from customs duties and from various taxes on goods and services that are imported
and exported from SEZ/EOU facilities.” 	Final Determination at 19–20 (summarizing the
Government of India’s comments). Companies in an Indian SEZ receive: (1) duty-free importation
of capital goods and raw materials, components, consumables, intermediates, spare parts and
packing material; (2) purchase of capital goods and raw materials, components, consumables,
intermediates, spare parts and packing material without the payment of central sales tax thereon;
(3) exemption from the services tax for services consumed within the SEZ; (4) exemption from
stamp duty for all transactions and transfers of immovable property and related documents within
the SEZ; (5) exemption from electricity duty on the sale or supply to the SEZ facility; (6) certain
income tax exemptions; and (7) discounted land within an SEZ. 	Id. 	To be eligible for these
benefits, all goods produced, excluding rejects and domestic sales, must be exported and must
achieve a net foreign exchange (“NFE”) goal -- i.e., export a sufficient quantity of product --
calculated cumulatively for a period of five years from the commencement of production. ATC’s
Resp. to Initial Countervailing Duty Questionnaire at 18–19 (Apr. 21, 2016) (“ATC Initial QR”),
P.R. 156–58, 179, C.R. 98, 205, 219.
B. 	Factual and Procedural Background
On February 10, 2016, Commerce initiated a countervailing subsidy investigation into off-
the-road tires from India. Certain New Pneumatic Off-the-Road Tires From India, The People’s
Republic of China, and Sri Lanka: Initiation of Less-Than-Fair-Value Investigations, 81 Fed. Reg.
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7,073 (Dep’t Commerce), P.R. 54. 4 ATC, a producer of pneumatic off-the road tires in India, was
selected 	as a mandatory respondent. 5 	Final 	Determination; 	IDM. 	Commerce issued a
questionnaire to the Government of India, which was then forwarded to ATC. Letter from Dep’t
of Commerce to Embassy of India Pertaining to Gov’t of India, Respondent Questionnaire (March
2, 2016), P.R. 87. In response, ATC indicated that one of its plants is located in an SEZ governed
by the SEZ Act of 2005 and another plant has EOU status. ATC Initial QR at 15–16, 23, Ex. 19.
Both plants are exempted from customs duties and various taxes. Id.; Gov’t of India Resp. to Part
II of the Department’s Countervailing Duty Questionnaire at 77–78 (Apr. 28, 2016) (“Gov’t of
India QR”), P.R. 194, C.R. 347. 	ATC also stated that, under Indian law, the plants are located
outside the customs area territory of India. 	ATC Initial QR at 16–20, 23. 	ATC explained that
4 The investigation was initiated in response to a petition filed on behalf of Titan Tire Corporation
and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, AFL-CIO, CLC.
5 In countervailable subsidy investigations or administrative reviews, Commerce may select
mandatory respondents pursuant to 19 U.S.C. § 1677f-1(e)(2), which provides:
If the administering authority determines that it is not practicable to determine
individual 	countervailable 	subsidy 	rates 	[in 	investigations 	or 	administrative
reviews] because of the large number of exporters or producers involved in the
investigation or review, the administering authority may—
(A) determine individual countervailable subsidy rates for a reasonable
number of exporters or producers by limiting its examination to—
(i) a sample of exporters or producers that the administering
authority determines is statistically valid based on the information
available to the administering authority at the time of selection, or
(ii) exporters and producers accounting for the largest volume of the
subject 	merchandise 	from 	the 	exporting 	country 	that 	the
administering authority determines can be reasonably examined; or
(B) determine a single country-wide subsidy rate to be applied to all
exporters and producers.
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companies operating in an SEZ or EOU must meet a certain NFE requirement or be subject to a
penalty, and detailed the controls the Government of India imposes on the shipment of
merchandise from SEZs to India’s domestic tariff area. Id. at 17, 19.
Commerce issued its preliminary determination on June 20, 2016. Certain New Pneumatic
Off-the-Road Tires from India, 81 Fed. Reg. 39,903 (Dep’t Commerce), P.R. 464, and
accompanying Issues and Decision Memorandum (“PDM”), P.R. 455. Commerce preliminarily
determined that the SEZ and EOU facilities are within the customs territory of India and these
programs 	are 	countervailable 	because: 	(1) 	program 	eligibility is 	contingent 	upon 	export
performance; (2) the Government of India had not provided evidence that its record-keeping
measures for the program are sufficiently stringent; and (3) the same programs had been found
countervailable in previous determinations. PDM at 18–23. Commerce consequently considered
unpaid duty exemptions on capital goods and raw materials imported under the programs to be
interest-free loans -- and thus countervailable benefits -- made to ATC at the time of importation.
Id. at 23.
At verification, the Government of India explained that the SEZ and EOU facilities are
“considered to be bonded zones that are outside the domestic tariff area of India (DTA), and that
they are both monitored in essentially the same manner.” Verification of the Questionnaire Resps.
Submitted by the Gov’t of India (Oct. 5, 2017) at 2, P.R. 512, C.R. 707. The Government of India
described its program monitoring methods as follows. Companies “execute a security bond that
allows these companies to import goods without the payment of duties at the time of import” and
Indian customs officials monitor imports through a “closed system” initiated by a company
notifying “[Indian] Customs of its intent to import capital goods or raw materials.” Id. “The actual
physical goods” are “monitored based on the declaration forms regarding the goods” but “physical
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inspections [are] not normal.” Id. The Government of India explained that they did not consider
waste and consumption factors or provide for the monitoring of waste and scrap. Id. at 3. Customs
officials had not audited ATC’s manufacturing processes at ATC’s SEZ location. 	Id. 	Exports
from SEZs and EOUs are monitored in a similar fashion, and physical inspections are likewise
atypical for EOU manufacturing. Id. ATC’s explanation of the monitoring process was largely
the same as the Government of India’s description. 	Verification of the Questionnaire Resps.
Submitted by ATC Tires Private Limited (Oct. 6, 2016) at 5 (“ATC Verification Resp.”), P.R. 513,
C.R. 708.
ATC 	submitted 	a case 	brief 	on 	October 	17, 	2016, 	arguing that 	record 	evidence
demonstrated that the SEZ and EOU facilities were located outside the customs territory of India
and, therefore, any duties and taxes not paid to the Government of India could not be considered a
countervailable benefit provided by the Government of India. ATC Tires Private Limited’s Case
Brief at 19–28, P.R. 521–22, C.R. 711. 	The Government of India also argued that Indian law
entitles companies not to pay certain customs duties and taxes related to their SEZ and EOU
activities. Gov’t of India’s Case Br. (Oct. 13, 2016), P.R. 517.
In its Final Determination and accompanying IDM, Commerce continued to find that the
SEZ and EOUs were within the customs territory of India and that these programs constituted
countervailable subsidies under § 705 of the Tariff Act of 1930 and 19 CFR 351.519(a)(4). IDM
at 21–25. Specifically, Commerce found that: (1) the NFE requirement and penalty for failing to
meet it meant that companies were contingently liable for duties and taxes until the benchmark
was met; (2) the Government of India lacked sufficient mechanisms to confirm the use of inputs
in exported products, making normal allowance for waste, and that there were “systemic record
keeping problems”; and (3) this determination was consistent with prior Commerce rulings.
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ATC instigated this action challenging Commerce’s determination on April 5, 2017.
Summ., ECF No. 1. ATC filed its Motion for Judgment on the Agency Record on September 29,
2017, the United States filed its response on December 21, 2017, and ATC filed its reply on
January 26, 2018. Pl.’s Br., ECF Nos. 35–36; Def.’s Br., ECF No. 39; Pl.’s Reply, ECF No. 40.
This court heard oral argument on June 5, 2018.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C.
§ 1516a(a)(2)(A)(i)(I) and (a)(2)(B)(ii). 	The standard of review in this action is set forth in 19
U.S.C. § 1516a(b)(l)(B)(i): “[t]he court shall hold unlawful any determination, finding or
conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in
accordance with law.”
DISCUSSION
Of relevance to the instant case, Commerce determined that the SEZ and EOU units are
countervailable because there was a financial contribution and a benefit was conferred. 6 See 19
U.S.C. §1677(5)(B), (D)(i)–(ii) (discussed at supra, p. 2). 	Alliance contends that Commerce’s
determination that ATC received a benefit was not supported by substantial evidence or in
accordance with law because it applied the wrong standard in determining whether ATC’s facilities
operate outside India’s customs territory. Alliance argues that, because ATC’s facilities operated
in SEZ/EOU locations outside of the customs territory of India and were exempt from duties and
6 Commerce also determined that the special economic zones are specific: “because eligibility for
all [SEZ] benefits is contingent upon export performance, we find that the assistance provided
under the program is specific with the meaning of sections [1677(5A)(A) and (B)]”. See PDM at
23; IDM at 23. Alliance does not dispute that determination in its briefing to this court and this
issue of specificity is thus not before the court. See Novosteel SA v. United States, 284 F.3d 1261,
1274 (Fed. Cir. 2002).
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taxes under Indian law, no revenue was foregone by the Government of India as a result of these
exemptions and thus no countervailable subsidies were provided. Further, Alliance argues that the
Government of India has sufficient monitoring mechanisms in place at SEZ and EOU facilities to
ensure that these facilities operate outside the customs territory of India, and that Commerce should
not have relied on 19 C.F.R. § 351.519(a)(4) to determine the adequacy of the Government of
India’s monitoring system. These arguments are not persuasive.
Commerce’s determination that revenue was foregone, and a countervailable benefit thus
conferred, is supported by substantial evidence. 	Substantial evidence is “more than a mere
scintilla” and amounts to what a “reasonable mind might accept as adequate to support a
conclusion.” 	Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 1374 (Fed. Cir.
2015) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). Here, SEZ and
EOU activities were exempt from duties and taxes as long as they met the NFE requirement. If
the NFE requirement was not met, companies had to pay a penalty to the Government of India.
On this basis, Commerce reasonably determined that taxes and duties were applied to goods
entering the SEZ and EOUs and that Companies were contingently liable for taxes and duties until
the NFE requirement was met. 	Therefore, when the Government of India did not require
companies to pay these taxes and duties which were otherwise owed after meeting the NFE
requirement, a benefit was conferred in the form of tax and duty revenue foregone consistent with
19 U.S.C. § 1677(5). IDM at 22; see 19 U.S.C. § 1677(5)(B), (D)(i)–(ii). 	DM at 22.
Alliance argues that, because the penalty is not explicitly tied to the amount of taxes or
duties owed, and is instead potentially tied to the amount a company falls below its NFE
requirement, Commerce’s determination that revenue is foregone is not supported by substantial
evidence. 	Pl.’s Br. at 22–23. 	However, Alliance provides no authority for why this distinction
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matters, let alone why it renders Commerce’s conclusion unsupported by substantial evidence.
Citing other matters, Alliance also contends that Commerce’s determination here is inconsistent
with findings that other countries’ duty free zones are not countervailable, and is thus arbitrary and
capricious. 7 	To the contrary, the court concludes that this determination is consistent with
Commerce’s previous treatment of India’s SEZ and EOU programs. See Indian PET PDM 2015
at 	13; 	Polyethylene 	Terephthalate 	Firm, 	Sheet, 	and 	Strip 	from 	India: 	Final 	Results 	of
Countervailing New Shipper Review, 76 FR 30,910 (Dep’t Commerce May 27, 2011) (“Indian
PET Film NSR”), and accompanying Issues and Decision Memorandum at 15. Furthermore, the
duty free programs in the determinations cited by Alliance involved no contingent liability or other
evidence of foregone revenue, and are thus distinguishable from the SEZ and EOU programs at
issue here. As noted in Circular Welded Carbon-Quality Steel Pipe from Vietnam:
There is no indication that the SEZs we analyzed there were outside the customs
territory of India. Rather, we observed in that case that “until an SEZ demonstrates
that it has fully met its export requirement, the company remains contingently liable
for the import duties,” which implies that a duty obligation is incurred when goods
enter the SEZ. 	This is not the situation present in the investigated program in
Vietnam.
Circular Welded Carbon-Quality Steel Pipe from Vietnam: Final Negative Countervailing Duty
Determination, 77 FR 64,471, and accompanying Issues and Decision Memorandum (Dep’t
7 	See, 	e.g., 	Circular 	Welded 	Carbon-Quality 	Steel 	Pipe 	from 	Vietnam: 	Final 	Negative
Countervailing Duty Determination, 77 FR 64,471, and accompanying Issues and Decision
Memorandum (Dep’t of Commerce Oct. 22, 2012) at 14; Final Results of Countervailing Duty
(CVD) Administrative Review: Circular Welded Carbon Steel Pipes and Tubes from Turkey, 78
FR 64,916, and accompanying Issues and Decision Memorandum (Dep’t of Commerce Oct. 30,
2013) at 21; 	Certain Polyethylene Terephthalate Resin from the Sultanate of Oman: Final
Negative Countervailing Duty Determination, 81 FR 13,321, and accompanying Issues and
Decision Memorandum (Dep’t of Commerce March 4, 2016) at 9–10; Certain Uncoated Paper
From Indonesia: Final Affirmative Countervailing Duty Determination, 81 FR 3,104, and
accompanying Issues and Decision Memorandum (Dep’t of Commerce Jan. 7, 2016) at 20–21.
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Commerce Oct. 22, 2012) (“Vietnam IDM”) at 14 (quoting PET Film from India NSR and
accompanying IDM at 15).
Commerce’s determination that the Government of India lacked sufficient monitoring
systems to ensure that the SEZs and EOUs operated outside its customs territory is also supported
by substantial evidence and in accordance with law. 	When import charges are exempted upon
export, “a benefit exists to the extent that the exemption extends to inputs that are not consumed
in the production of the exported product, making normal allowances for waste, or if the exemption
covers 	charges 	other 	than 	import 	charges 	that 	are 	imposed 	on 	the 	input.” 	19 	CFR 	§
351.519(a)(1)(ii). Furthermore,
[T]he Secretary [of Commerce] will consider the entire amount of an exemption,
deferral, remission or drawback to confer a benefit, unless the Secretary determines
that:
(i) The government in question has in place and applies a system or procedure to
confirm which inputs are consumed in the production of the exported products and
in what amounts, and the system or procedure is reasonable, effective for the
purposes intended, and is based on generally accepted commercial practices in the
country of export; or
(ii) If the government in question does not have a system or procedure in place, if
the system or procedure is not reasonable, or if the system or procedure is instituted
and considered reasonable, but is found not to be applied or not to be applied
effectively, the government in question has carried out an examination of actual
inputs involved to confirm which inputs are consumed in the production of the
exported product, and in what amounts.
19 CFR § 351.519(a)(4).
Here, 	substantial 	record 	evidence 	supports 	Commerce’s 	determination 	that 	the
Government of India lacks an adequate system in place to confirm which inputs, and in what
amounts, are consumed in the production of exported products, making normal allowance for
waste. 	IDM at 23; Gov’t of India Verification Report at 3. 	In its questionnaire responses, the
Government of India stated that its monitoring system for the SEZ and EOU programs does not
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consider waste and consumption production factors or monitor waste and scrap and physical
inspections are atypical. 	Verification Report at 3. 	This determination is also consistent with
Commerce’s prior findings that the Government of India’s monitoring system has systemic record-
keeping problems. See Indian PET Film NSR IDM at 14–15; Indian PET Film PDM 2015 at 13–
18.
Alliance does not dispute that the Government of India’s monitoring system does not
account for production inputs, nor that 19 CFR § 351.519(a)(4) applies to situations where duties
exemption programs are conducted within a country’s customs territory. 	Pl.’s Reply at 7–8.
Rather, Alliance contends Commerce applied the wrong standard and that its decision is therefore
not in accordance with law. 	According to Alliance, 19 CFR § 351.519(a)(4) does not apply to
duty free zones and Commerce should instead consider whether there are “enforcement measures
that ensure goods entering the free trade area are accounted for through exportation or entry into
the country’s customs territory and, in the latter case, appropriate duties are collected.” Pl.’s Br.
at 12 (quoting Certain Uncoated Paper From Indonesia: Final Affirmative Countervailing Duty
Determination, 81 FR 3,104, and accompanying Issues and Decision Memorandum (Dep’t
Commerce Jan. 7, 2016) (“Indonesia IDM”) at 22).
This argument is not persuasive. 	As previously discussed, the Indian SEZ and EOU
programs impose contingent duty liability on companies, while the programs in the determinations
Alliance cites do not impose such duties. 	See, e.g., Vietnam IDM at 13–14 (distinguishing the
Indian SEZ program from Vietnam’s on the basis of contingent duty liability). As such, the SEZ
and EOU programs are within the Indian customs territory, and 19 CFR § 351.519(a)(4) applies.
See id. at 13 (“19 CFR 351.519 addresses situations where duties are otherwise due, i.e., situations
in which goods enter the country’s customs territory.”). Further, Commerce has applied this same
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standard to evaluating the Indian SEZ and EOU programs before, so it is hardly inconsistent with
precedent to do so again.
Moreover, the monitoring methods found sufficient in determinations applying Alliance’s
proposed standard were more extensive than those employed by the Government of India here.
See, e.g., Vietnam IDM at 14–15 (detailing a rigorous monitoring process that involves physical
inspections, evaluation of scrap use, and fraud detection software); Final Results of Countervailing
Duty (CVD) Administrative Review: Circular Welded Carbon Steel Pipes and Tubes from Turkey,
78 FR 64,916, and accompanying Issues and Decision Memorandum (Dep’t Commerce Oct. 30,
2013) at 21 (“[W]e note that the Department has previously examined Turkey’s duty drawback
system and determined that the [Government of Turkey] has in place and applies a drawback
system that ensures that duty exemptions are provided only to products that are consumed in the
production of the exported product.”); Indonesia IDM at 22–23 (describing a rigorous monitoring
process that involved routine record keeping, physical inspections, and periodic audits); Certain
Polyethylene Terephthalate Resin from the Sultanate of Oman: Final Negative Countervailing
Duty Determination, 81 FR 13,321, and accompanying Issues and Decision Memorandum (Dep’t
Commerce Mar. 4, 2016) at 12 (noting that goods “entering and leaving the zone must be
administered by Oman customs in the same manner as merchandise entering and leaving the Port
of Salalah itself, as such merchandise is imported into or exported from Oman”).
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CONCLUSION
For the reasons stated above, Commerce’s determination is supported by substantial
evidence and in accordance with law. 	The court thus denies Alliance’s motion and sustains
Commerce’s Final Determination.
SO ORDERED.
/s/ 	Gary S. Katzmann
Gary S. Katzmann , Judge
Dated:	-XQH
New York, New York
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