149 F.Supp.2d 921 (CIT. 2001), 00-03-00099, Steel Authority of India, Ltd. v. United States
|Citation:||149 F.Supp.2d 921|
|Party Name:||STEEL AUTHORITY OF INDIA, LTD., Plaintiff, v. UNITED STATES, Defendant, and Bethlehem Steel Corporation; U.S. Steel Group, a Unit of USX Corporation; IPSCO Steel Inc., Defendant-Intervenors. Slip Op. 01-60.|
|Case Date:||May 22, 2001|
|Court:||Court of International Trade|
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Wilmer, Cutler & Pickering (John D. Greenwald, Robert C. Cassidy, Jr., Juan A. Millan), Washingto, DC, for Plaintiff.
David W. Ogden, Assistant Attorney General, David M. Cohen, Director, Erin Powell, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC; Scott D. McBride, Attorney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, Arlington, VA, for Defendant.
Schagrin Associates (Roger B. Schagrin), Washington, DC, for Defendant-Intervenor IPSCO Steel Inc.
Skadden, Arps, Slate, Meagher & Flom LLP (Robert E. Lighthizer, John J. Mangan), Washington, DC, for Defendant-Intervenors Bethlehem Steel Corporation and U.S. Steel Group, a unit of USX Corp.
This action is before the court on Plaintiff's motion for judgment on the agency record pursuant to USCIT Rule 56.2. Plaintiff, Steel Authority of India, Ltd. ("SAIL"), contests the final determination of sales at less than fair value ("LTFV") by the International Trade Administration of the U.S. Department of Commerce (the "Department") in the investigation of certain cut-to-length ("CTL") carbon-quality steel plate from India. See Certain Cut-to-Length Carbon-Quality Steel Plate Products from India, 64 Fed.Reg. 73,126 (Dep't Commerce Dec. 29, 1999), as amended, 65 Fed.Reg. 6,585 (Dep't Commerce Feb. 10, 2000) (final determ.) ("Final Determination"). Specifically, Plaintiff challenges the Department's use of facts available in lieu of Plaintiff's reported U.S. sales data and the application of adverse inferences in the selection of available data used to make the Department's determination. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c)(1994).
Bethlehem Steel Corporation, Gulf States Steel, Inc., IPSCO Steel Inc., Tuscaloosa Steel Corp., the United Steelworkers of America, and the U.S. Steel Group (collectively the "Petitioners"), initiated this investigation with the Department on February 16, 1999. 1 Petitioners alleged that imports of CTL steel plate from the Czech Republic, France, India, Indonesia, Italy, Japan, the Republic of Korea, and the Former Yugoslav Republic of Macedonia were being or are likely to be sold at LTFV. On March 16, 1999, the Department initiated an investigation to determine whether certain CTL steel plate was being sold at LTFV. See Initiation of Antidumping Duty Investigations: Certain Cut-to-Length Carbon Quality Steel Plate, 64 Fed.Reg. 12,959 (Dep't Commerce March 16, 1999) (initiation notice).
Upon initiation of the investigation, the Department issued the first of its many questionnaires. Throughout the proceeding, SAIL experienced difficulties in compiling the requested data. See Pl.'s Mem. Supp. Mot. J. Agency R. at 11-14. From the onset of the investigation, however, SAIL advised the Department of these difficulties. See Case Brief on Behalf of Steel Authority of India, Ltd., P.R. Doc. No. 114 at 5, Pl.'s App. at Ex. 2 (Nov. 15, 1999).
As a result of SAIL's difficulties in responding to the information requests, the
Department, on several occasions, used supplemental questionnaires to further clarify SAIL's responses. See Final Determination, 64 Fed.Reg. at 73,127. Despite the problems in SAIL's responses, the Department attempted to verify the information. After conducting a 21-day verification, the Department observed that SAIL "failed to report a significant number of home market sales; was unable to verify the total quantity and value of home market sales; and failed to provide reliable cost or constructed value data for the products." Id. The Department concluded that SAIL's information was untimely, incomplete and incorrect. As a result, "SAIL's questionnaire responses could not be verified." Id. On December 29, 1999, the Department published its final determination, holding that the application of total adverse facts available was required to determine the appropriate dumping margin. Id.
A. Plaintiff's Arguments
SAIL disputes the Department's application of total adverse facts available. Although SAIL agrees that the use of facts available was appropriate for some of the information requested by the Department, primarily home market sales and cost data, SAIL argues that this method should not have been used for its U.S. sales information. See Pl.'s Mem. Supp. Mot. J. Agency R. at 16. Instead of total facts available, the Department, according to SAIL, should have used facts available only in part, i.e., with regard to all information other than the U.S. sales data. See id. at 23.
In making this argument, SAIL relies on a plain language interpretation of 19 U.S.C. § 1677m(e). 2 See id. at 18. SAIL argues that any "information" that satisfies 1677m(e) must be used by the Department in making its final determination. See id. at 16-18. In this case, SAIL believes that the U.S. sales data satisfies the requirements of 1677m(e). See id. at 24-27. As such, it considers the U.S. sales data to be any "information" within the meaning of the statute. Therefore, SAIL claims, the Department is required by 1677m(e) to use the U.S. sales data in computing SAIL's dumping margin. By using total facts available, SAIL argues, the Department is ignoring the plain meaning of the statute.
SAIL also argues that the Department erred in applying adverse inferences in violation of 19 U.S.C. § 1677e(b). 3 See id.
at 30. Although SAIL was unable to fully comply with the Department's questionnaires, SAIL claims that its inability was due to difficulties in gathering and compiling data. See id. These difficulties made it impossible for SAIL to timely and reliably respond to the Department. SAIL argues that, as demonstrated by the numerous documents and supplemental questionnaires submitted to the Department, it acted to the best of its ability, even though the best of its ability still resulted in incomplete submissions. See id. at 33.
B. Department's Arguments
The Department, on the other hand, argues that there is a "long standing practice" of using total facts available when there are "essential components of the response" that are inaccurate and unreliable. Final Determination, 64 Fed.Reg. at 73,130. Partial facts available, in the Department's view, is only used to fill minor gaps in the record. Id. Regardless, the Department argues that the five criteria of 1677m(e) were not met, even for Plaintiff's U.S. sales. See Def.'s Mem. Opp'n to Mot. J. Agency R. at 15-16. "[T]he U.S. sales database," according to the Department, "contained errors that ... in isolation were susceptible to correction [but] when combined with the other pervasive flaws in SAIL's data lead [the Department] to conclude that SAIL's data on the whole is unreliable." Final Determination, 64 Fed.Reg. at 73,127. Due to the deficiencies in SAIL's questionnaire responses, the Department argues that it had the option of disregarding all or part of the original and subsequent responses. See Def.'s Mem. Opp'n to Mot. J. Agency R. at 18. In this situation, the Department...
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