431 F.Supp.2d 1323 (CIT. 2006), 05-00060, Goldlink Industries Co., Ltd. v. United States
|Docket Nº:||Court No. 05-00060.|
|Citation:||431 F.Supp.2d 1323|
|Party Name:||GOLDLINK INDUSTRIES CO., LTD., Trust Chem Co., Ltd., Tianjin Hanchem International Trading Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Nation Ford Chemical Company and Sun Chemical Corporation, Defendant-Intervenors and Plaintiffs, and Clariant Corporation, Defendant-Intervenor and Plaintiff. Slip Op. 06-65.|
|Case Date:||May 04, 2006|
|Court:||Court of International Trade|
Garvey Schubert Barer, Washington, DC (William E. Perry, Lizbeth R. Levinson, and Ronald M. Wisla) for Goldlink Industries Co., Ltd., Trust Chem Co., Ltd., and Tianjin Hanchem International Trading Co., Ltd., Plaintiffs.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stephen C. Tosini); Dean A. Pinkert, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, Defendant, of counsel.
Pepper Hamilton LLP, Washington, DC (Gregory C. Dorris, Edward M. Andries and Fidelis I. Agbapuruonwu) for Nation Ford Chemical Company and Sun Chemical Corporation, Defendant-Intervenors and Plaintiffs.
Barnes, Richardson & Colburn, Washington, DC (Matthew T. McGrath and Stephen W. Brophy) for Clariant Corporation, Defendant-Intervenor and Plaintiff.
TSOUCALAS, Senior Judge.
This consolidated action concerns claims raised by Plaintiffs, Goldlink Industries Co., Ltd., Trust Chem Co., Ltd., and Tianjin Hanchem International Trading Co., Ltd. (collectively, "Goldlink"), and Defendant-Intervenors and Plaintiffs, Nation Ford Chemical Company and Sun Chemical Corporation (collectively, "Nation Ford"), and Clariant Corporation ("Clariant"), who move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the Department of Commerce, International Trade Administration's ("Commerce's") final determination, entitled Notice of Final Determination of Sales at Less Than Fair Value for Carbazole Violet Pigment 23 from the People's Republic of China ( "Final Determination" ), 69 Fed.Reg. 67,304 (Nov. 17, 2004).
Goldlink, Nation Ford and Clariant contend that various aspects of the Final Determination are not supported by substantial evidence or in accordance with law. Goldlink argues that substantial evidence on the record does not support Commerce's decision to apply total adverse facts available to Tianjin Hanchem International Trading Co., Ltd. ("Hanchem"). 1 Goldlink also argues that Commerce incorrectly chose one Indian company's financial data as opposed to other Indian companies for surrogate financial ratios in calculating normal value. Nation Ford and Clariant, (together, "Defendant-Intervenors"), separately contend that Commerce erred regarding the same seven aspects of the Final Determination: (1) Commerce incorrectly classified benzene sulfonyl chloride under the Indian Tariff Schedule; (2) Commerce incorrectly valued the chemical inputs carbazole, sodium sulfide and calcium chloride; (3) Commerce failed to account for steam as a factor of production; (4) Commerce did not apply financial ratios to toll-manufacturing within Goldlink's supply chain; and (5) Commerce failed to include values for terminal charges and brokerage fees in capturing all necessary movement costs.
This case concerns an antidumping duty order for carbazole violet pigment 23 ("CVP-23") from the People's Republic of China for the period of investigation ("POI") covering April 1, 2003, through September 30, 2003. See Final Determination, 69 Fed.Reg. at 67,304. Commerce initiated the investigation on December 19, 2003. See Notice of Initiation of Antidumping Duty Investigations for Carbazole Violet Pigment 23 from India and the People's Republic of China, 68 Fed.Reg. 70,761 (Dec. 19, 2003). On June 24, 2004, Commerce published its preliminary determination, finding that CVP-23 was being sold at less than fair value. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination for Carbazole Violet Pigment 23 From the People's Republic of China ( "Preliminary Results" ), 69 Fed.Reg. 35,287, 35,288 (June 24, 2004). In its Preliminary Results, Commerce selected India as the surrogate country, see Preliminary Results, 69 Fed.Reg. at 35,291, which it confirmed in its Final Determination. See Final Determination, 69 Fed.Reg. at 67,305. Commerce published its Final Determination on November 17, 2004. See Final Determination, 69 Fed.Reg. at 67,304. By reference in its Final Determination, Commerce incorporated its Issues and Decision Memorandum for the Final Determination of Carbazole Violet Pigment 23 from the People's Republic of China ( "I & D Mem." ), Admin. R. Doc. 172 (Nov. 8, 2004). See Final Determination, 69 Fed.Reg. at 67,304.
STANDARD OF REVIEW
In reviewing a challenge to Commerce's final determination in an antidumping administrative review, the Court will uphold 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)(i) (2000). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ( quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted). Moreover, "the court may not substitute its judgment for that of the [agency] when the choice is 'between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' " Am. Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) ( quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983) ( quoting, in turn, Universal Camera, 340 U.S. at 487-88, 71 S.Ct. 456)).
The antidumping review at issue involves CVP-23 from the People's Republic of China ("PRC"). See Final Determination, 69 Fed.Reg. at 67,304. In conducting an administrative review, Commerce determines the antidumping duty margin by taking the difference between the normal value ("NV"), typically the home market price of the merchandise in the exporting country, and the United States price (also called export price) of the merchandise. See 19 U.S.C. § 1677b (2000). When the merchandise is produced in a non-market economy country ("NME"), as the PRC is here, there is a presumption that factors of production ("FOPs") are under the control of the state and home market sales are usually not reliable indicators of NV. See 19 U.S.C. § 1677(18)(A) & (C) (2000). As such, Commerce is to calculate NV by isolating each FOP in the production process in the NME country and assign it a value from a surrogate market economy country using the "best available information." 19 U.S.C. § 1677b(c)(1). An estimated amount for general expenses and profit are added to the total FOPs to ultimately derive the merchandise's price as it would be if the NME country was a market economy. See 19 U.S.C. § 1677b(c); Nation Ford Chem. Co. v. United States, 21 CIT 1371, 1372, 985 F.Supp. 133, 134 (1997) (citations omitted), aff'd 166 F.3d 1373 (Fed.Cir.1999).
The antidumping statute does not define the phrase "best available information," rather, it only provides that in valuing FOPs, Commerce shall use surrogate values that are "(A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of comparable merchandise." 19 U.S.C. § 1677b(c)(4). As such, Commerce is given broad discretion "to determine margins as accurately as possible, and to use the best information available to it in doing so." Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442, 1443 (Fed.Cir.1994). Here, Commerce chose India as the surrogate country for China, see Preliminary Results, 69 Fed.Reg. at 35,291, which is uncontested by the parties. Furthermore, all companies in a NME country are presumed to be subject to governmental control and assigned a single antidumping duty rate unless the company can demonstrate an absence of governmental control. See e.g., Decca Hospitality Furnishings, LLC v. United States, 29 CIT ----, ----, 391 F.Supp.2d 1298, 1300 (2005). Here, Commerce determined that Goldlink, Hanchem, Trust Chem Co., Ltd. and Nantong Haidi Chemical Co., Ltd. ("Haidi") were entitled to
separate rates. See Preliminary Results, 69 Fed.Reg. at 35,289.
The Court's role in the case at bar is not to evaluate whether the information Commerce used was the best available, but rather whether a reasonable mind could conclude that Commerce chose the best available information. See 19 U.S.C. §§ 1677b & 1516a. The statute's silence regarding the definition of "best available information" provides Commerce with "broad discretion to determine the 'best available information' in a reasonable manner on a case-by-case basis." Timken Co. v. United States, 25 CIT 939, 944, 166 F.Supp.2d 608, 616 (2001). 2 Commerce's discretion in choosing its information is limited by the statute's...
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