162 F.Supp.2d 656 (CIT. 2001), 00-06-00291, Viraj Group, Ltd. v. United States.
|Citation:||162 F.Supp.2d 656|
|Party Name:||VIRAJ GROUP, LTD. Plaintiff, v. UNITED STATES of America, Defendant, and Carpenter Technology, Corp., et al., Defendant-Intervenors. SLIP OP. 01-104.|
|Case Date:||August 15, 2001|
|Court:||Court of International Trade|
Ablondi, Foster, Sobin & Davidow (Peter Koenig), Washington, D.C., for Plaintiff.
Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Lucius B. Lau, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for Defendant.
Collier Shannon Scott, PLLC (Robin H. Gilbert, Laurence J. Lasoff), Washington, D.C., for Defendant-Intervenors.
CARMAN, Chief Judge.
This action challenges the United States Department of Commerce's (Commerce) determination in Stainless Steel Wire Rod from India; Final Results of Antidumping Duty Administrative Review, 65 Fed.Reg. 31,302 (May 17, 2000) ( Final Results ). Plaintiff has filed a motion for judgment on the agency record asserting that Commerce's determination resulted in an inaccurate dumping margin. The United States and Defendant-Intervenors (collectively Defendants) oppose Plaintiff's motion.
On December 1, 1993, Commerce published antidumping duty orders on certain stainless steel wire rod (SSWR) imported from India. See Antidumping Duty Order: Certain Stainless Steel Wire Rod from India, 58 Fed.Reg. 63,335 (December 1, 1993). On December 8, 1998, the agency published a notice of opportunity to request an administrative review of this antidumping duty order for subject merchandise imported between December 1, 1997 and November 30, 1998. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 63 Fed.Reg. 67,646 (December 8, 1998). In response to this notice, Viraj Group 1 (Viraj or Plaintiff) and two other Indian manufacturers 2 requested an administrative review. See Certain Stainless Steel Wire Rod From India; Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 65 Fed.Reg. 1,597, 1,597 (January 11, 2000) ( Preliminary Results ).
On February 22, 1999, Commerce initiated its review. During its investigation, Commerce determined that Plaintiff had no sales of subject merchandise in the home market within the period of review. Therefore Commerce was required to establish normal value through some other means. See id. at 1,599. After rejecting the use of Plaintiff's third-country sales for normal value because of a lack of contemporaneous sales of foreign like product in the comparison market, Commerce constructed a value in accordance with its statutory and regulatory guidelines. See id. Ultimately, Commerce published its Final Results on May 17, 2000, concluding that an antidumping duty rate of 11.88% should be applied to Plaintiff's imports of subject merchandise. See Final Results, 65 Fed.Reg. 31,302.
Plaintiff timely filed suit with the Court challenging three aspects of Commerce's Final Results. Specifically, Plaintiff asserts: (1) the exchange rate used by Commerce to convert Indian rupees into United States dollars created an inaccurate dumping margin; (2) to account for import duties paid on raw materials, Plaintiff was
entitled to an adjustment of either (i) its export price, or (ii) its cost of production or constructed value; and (3) Commerce should have used Plaintiff's actual production cost of steel billets rather than its inter-company transfer price to calculate constructed value.
For the reasons stated below, the Court remands the first issue to Commerce for further explanation as to whether Commerce's currency conversion methodology resulted in an accurate dumping margin. The Court sustains Commerce's determination with respect to the second and third issues.
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994) and will sustain Commerce's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1994). Commerce's determinations are to be afforded considerable deference. See, e.g., Zenith Elecs. Corp. v. United States, 77 F.3d 426, 430 (Fed.Cir.1996); Daewoo Elec. Co., Ltd. v. International Union, 6 F.3d 1511, 1516 (Fed.Cir.1993). Commerce may not, however, act arbitrarily, violate the antidumping laws, or apply the law in a manner contrary to congressional intent. See Allied Tube & Conduit Corp. v. United States, 127 F.Supp.2d 207, 219 (CIT 2000), citing, Smith-Corona Group v. United States, 713 F.2d 1568, 1571 (Fed.Cir.1983); Hussey Copper Ltd. v. United States, 895 F.Supp. 311, 314 (CIT 1995).
Commerce's factual determinations must be supported by substantial evidence on the record. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Under this standard, the Court will not disturb an agency determination if its factual findings are reasonable and supported by the record as a whole, even if some evidence detracts from the agency's conclusion. See Heveafil Sdn. Bhd. & Filati Lastex Sdn. Bhd. V. United States, 2001 WL 194986, *2 (Ct. Int'l Trade), citing, Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1563 (Fed.Cir.1984).
In determining whether Commerce's interpretation of the antidumping statute is "in accordance with law," this Court must consider whether the statute unambiguously addresses the question at issue and, if not, whether the agency's interpretation of the statute is reasonable in light of the overall statutory scheme. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This Court accords considerable weight to Commerce's construction of the antidumping laws, see E.I. Du Pont de Nemours & Co. v. United States, 8 F.Supp.2d 854, 857 (CIT 1998), but does not fulfill its duty to say what the law is by perfunctorily agreeing with Commerce's interpretation of the relevant statutory provision. See Timex V.I., Inc. v. United States, 157 F.3d 879, 881 (Fed.Cir.1998). Rather, through the application of traditional tools of statutory construction, this Court must examine whether Congress expressed its intent on the matter at issue. Only if Congress was silent or ambiguous with respect to the question at issue can the Court assess whether Commerce's construction thereof is reasonable or merely a post hoc rationalization. See id. at 882. To survive judicial scrutiny, however, "an agency's construction need not be the only reasonable interpretation or even the most reasonable interpretation
.... [A] court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another." U.S. Steel Group v. United States, 225 F.3d 1284, 1287 (Fed.Cir.2000); NSK Ltd. v. United States, 115 F.3d 965, 973 (Fed.Cir.1997); Koyo Seiko Co., Ltd. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994) (internal citation omitted) (emphasis in original).
I. Commerce's currency conversion methodology appears to disregard a devaluation in the Indian rupee, resulting in a dumping margin that is unsupported by substantial evidence and contrary to law.
To determine whether a company is selling goods in the United States at less than fair value, Commerce compares the normal value of the subject merchandise to the price at which that merchandise is being sold in the United States. See 19 U.S.C. § 1677b(a) (1994). Such comparison, however, frequently requires that Commerce calculate values denominated in different currencies. To correct for the differences in value associated with different currencies, the antidumping law requires that "the administering authority [ ] convert foreign currencies into United States dollars using the exchange rate in effect on the date of sale of the subject merchandise." 19 U.S.C. § 1677b-1(a) (1994). The only statutory exception to this requirement is when a "currency transaction on [the] forward markets is directly linked to an export sale under consideration." Id. Under these circumstances, "the exchange rate specified with respect to such currency in the forward sale agreement shall be used to convert the foreign currency." Id. The statutory exception is not applicable in this case.
Commerce selected the November 3, 1997 purchase order date as the date of sale. The agency acknowledged that "[w]hile the Department normally will use the date of invoice as the date of sale, we have determined in this case that the purchase order date better reflects the date on which Viraj established the material terms of sale". In this case, Viraj stated in its April 19, 1999 questionnaire response that the material terms of sale are set at order date. Preliminary Results, 65 Fed.Reg. at 1,598. Commerce further acknowledged that its chosen date of sale fell outside the period of review. It justified its selection on the grounds that it possesses discretion to consider sales which fall outside the period of review and that, according to its practice, it had reviewed sales of merchandise shipped to the U.S. during the period of review. See id.
Based on its date of sale determination and pursuant to the requirements of 19 U.S.C. § 1677b-1(a) and 19 C.F.R. § 351.415, 3 Commerce used the November 3, 1997 exchange rate to convert Indian rupees into United States dollars. The exchange rate on this date was 36.40...
To continue readingFREE SIGN UP