Mittal Steel Galati S.A. v. U.S.

• Decision Date: 14 May 2007
• Docket Number: Court No. 06-00050.,Slip Op. 07-73.
• Citation: 491 F.Supp.2d 1273
• Parties: MITTAL STEEL GALATI S.A., Formerly Known as Ispat Sidex S.A., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

491 F.Supp.2d 1273

MITTAL STEEL GALATI S.A., Formerly Known as Ispat Sidex S.A., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 07-73.

Court No. 06-00050.

United States Court of International Trade.

May 14, 2007.

Arent Fox Kintner Plotkin & Kahn, PLLC (John M. Gurley, Diana Dimitriuc Quaia) for Plaintiff Mittal Steel Galati S.A., formerly known as Ispat Sidex S.A.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David F. D'Alessandris); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Arthur D. Sidney), of counsel, for Defendant United States. Wiley Rein & Fielding (Alan H. Price, Timothy C. Brightbill) for Defendant-Intervenor Nucor Corporation.

Schagrin Associates (Roger B. Schagrin, Michael J. Brown) for Defendant-Intervenor IPSCO Steel Inc.

OPINION

GORDON, Judge.

Plaintiff Mittal Steel Galati S.A. challenges two decisions of the U.S. Department of Commerce ("Commerce") during the 2003-2004 administrative review of the antidumping duty order covering certain cut-to-length carbon steel plate from Romania. See Certain Cut-to-Length Carbon Steel Plate from Romania, 71 Fed. Reg. 7,008 (Dep't of Commerce Feb. 10, 2006) (final results and partial rescission) ("Final Results"). First, Plaintiff contends that Commerce erred in assigning Plaintiff a total adverse facts available rate of 75.04 percent ad valorem. Second, Plaintiff contends that Commerce's policy of issuing liquidation instructions within 15 days of the publication of the final results of an administrative review is per se unlawful.

The court has jurisdiction to review Plaintiffs first issue pursuant to Section 516a(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000)¹ and 28 U.S.C. § 1581(c) (2000). The court has jurisdiction to review Plaintiffs second issue under the same jurisdictional provision, or alternatively, under 28 U.S.C. § 1581(i) (2000).

As discussed further below, Plaintiffs total adverse facts available rate of 75.04 percent is supported by substantial evidence and is in accordance with law. Also, Commerce's 15-day liquidation instruction policy is in accordance with law. The court therefore sustains Commerce's Final Results and denies Plaintiffs motion for judgment on the agency record.

II. Standard of Review

When reviewing Commerce's administrative review final results under 28 U.S.C. § 1581(c) (2000), the Court of International Trade sustains Commerce's determinations, findings, or conclusions unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing whether Commerce's actions are unsupported by substantial evidence, the Court assesses whether the agency action is "unreasonable" given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed.Cir.2006). When reviewing Commerce's actions under 28 U.S.C. § 1581(i), the Court holds unlawful an agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2000); 28 U.S.C. § 2640(e) (2000).

III. Discussion

A. Adverse Facts Available Rate

In the preliminary results of the administrative review, Commerce calculated an antidumping duty rate of 48.90 percent ad valorem for Plaintiff. Certain Cut-to-Length Carbon Steel Plate from Romania, 70 Fed.Reg. 53,333, 53,338 (Dep't of Commerce Sept. 8, 2005) (preliminary results) ("Preliminary Results"). After the Preliminary Results, Plaintiff informed Commerce that it discovered a significant quantity of subject merchandise that it failed to report in the administrative review, but Plaintiff did not disclose the quantity or value of the unreported subject merchandise. Shortly after this revelation, Plaintiff abruptly curtailed its participation in the proceeding by foregoing a scheduled cost verification and removing its business proprietary data from the record. Final Results, 71 Fed.Reg. at 7,010.

In the Final Results Commerce found that Plaintiff had both withheld information and significantly impeded the administrative review, requiring Commerce to use facts otherwise available to complete the review. Id. Commerce also found that Plaintiff had failed to cooperate by not acting to the best of its ability to comply with a request for information, justifying application of adverse facts available. Id. at 7,011. Plaintiff does not challenge these findings. See Pl.'s Mot. J. Agency R. at 10. Plaintiff instead challenges the 75.04 percent rate that Commerce selected and assigned as total adverse facts available. Id. at 11.

In a total adverse facts available scenario, Commerce may not be able to calculate an antidumping rate for the uncooperative respondent because the information required for such a calculation (the respondent's sales and cost information for the subject merchandise during the period of review) typically is not available or has not been provided. As a substitute, Commerce relies on the petition, the final determination from the investigation, prior administrative reviews, or other information placed on the record, 19 U.S.C. § 1677e(b), to select a proxy that should be a "reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to noncompliance." F.LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000) ("de Cecco").

Among the rates available to Commerce in the administrative proceeding were the 48.90 percent rate calculated for Plaintiff in the Preliminary Results and the 75.04 percent all others rate that was derived from the petition when Romania was a non-market economy.² In the Final Results Commerce reasoned that any adverse facts available rate for Plaintiff needed to be higher than 48.90 percent. Issues and Decision Memorandum for Administrative Review of Certain Cut-to-Length Carbon Steel Plate from Romania, at 15-16, A-485-803, ADR: 08/01/2003-07/31/2004 (Feb. 6, 2006), available at http://ia.ita.doc. gov/frn/summary/romania/E6-1880-1.pdf, ("Decision Memorandum"). That rate was a cooperative rate — Plaintiff's noncompliance occurred after it was calculated, and Commerce inferred that Plaintiffs actual rate was therefore higher than 48.90 percent. See Decision Memorandum at 10-11 ("an adverse inference is warranted"). Commerce also believed that a rate higher than 48.90 percent would serve as a deterrent to Plaintiffs future non-compliance. See Final Results, 71 Fed.Reg. at 7011. These conclusions are both reasonable and consistent with the adverse facts available provision of the antidumping statute and the Federal Circuit's guidance in De Cecco. The only rate higher than 48.90 percent was the all-others rate of 75.04 percent, which Commerce first corroborated and then assigned to Plaintiff. Id.

Plaintiff first contends that the statutory provisions governing non-market economy calculations prohibit the assignment of a non-market economy rate within a subsequent market economy proceeding. See Pl.'s Mot. J. Agency R. at 11-16; Pl.'s Reply Br. at 3-4 (citing 19 U.S.C. § 1677b(c)(1)). The court reviews disputed interpretations of the antidumping statute under the framework provided in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court first considers whether Congressional intent on the issue is clear, and if not, whether Commerce's interpretation is reasonable. Id.; Dupont Teijin Films USA, LP v. United States, 407 F.3d 1211, 1215 (Fed.Cir.2005).

Here, Congressional intent is clear. The express language of the adverse facts available provision authorizes Commerce to rely on information from the petition irrespective of whether that information is from a market or non-market economy proceeding. See 19 U.S.C. § 1677e(b). When operating in an adverse facts available situation, Commerce needs access to additional sources of information to complete the administrative review. Plaintiffs proposed interpretation would limit the available pool of information on which Commerce may rely, contrary to the purpose of the adverse facts available provision. Therefore, Commerce may, in a market economy proceeding, assign to a respondent a total adverse facts available rate derived from a prior, non-market economy proceeding. Whether Commerce should commingle a non-market economy rate with a market economy proceeding does not go to the question of whether Commerce acted in accordance with law, but to whether that action is reasonable given the facts and circumstances presented by the administrative record — that is — whether it is supported by substantial evidence.

Plaintiff next argues that Commerce, in practice, eschews adverse facts available rates derived solely from the petition in favor of rates that have been calculated with respondent information, and that Commerce's administrative precedents preclude it as a matter of law from relying solely on petition information for an adverse facts available rate. Pl.'s Reply Br. at 7-8; Pl.'s Mot. J. Agency R. at 16-17.³ This is an odd assertion because the statute explicitly authorizes Commerce to rely on petition information in adverse facts available situations. See 19 U.S.C. § 1677e(b); De Cecco, 216 F.3d at 1032 ("the statute explicitly allows for use of the petition' to determine relevant facts when a respondent does not cooperate"). Plaintiff nevertheless suggests that Commerce no longer has that authority, purportedly abandoning it through administrative practice. Pl.'s Reply Br. at 7-8. In actuality, Commerce has not so limited itself. See, e.g., Stainless Steel Bar from India, 69 Fed.Reg. 55,409, 55,410 (Dep't of Commerce Sept. 14, 2004) (final...