D & L SUPPLY CO. v. US, Court No. 92-06-00424. Slip Op. No. 93-245.
| Decision Date | 28 December 1993 |
| Docket Number | Court No. 92-06-00424. Slip Op. No. 93-245. |
| Citation | 17 CIT 1419,841 F. Supp. 1312 |
| Parties | D & L SUPPLY CO. and Guangdong Metals & Minerals Import & Export Corporation; U.V. International, Sigma Corporation, Southern Star, Inc., City Pipe and Foundry, Inc., Long Beach Iron Works, Inc.; and Overseas Trade Corporation, Plaintiffs, v. UNITED STATES, Defendant, Alhambra Foundry Inc., Allegheny Foundry Co., Bingham & Taylor Division, Virginia Industries, Inc., Charlotte Pipe & Foundry Co., East Jordan Iron Works, Inc., Lebaron Foundry Inc., Municipal Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Tyler Pipe Industries, Inc., U.S. Foundry & Manufacturing Co. and Vulcan Foundry, Inc., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Whitman & Ransom, Dennis James, Jr. and Kathleen F. Patterson, Washington, DC, for plaintiffs D & L Supply Co. and Guangdong Metals & Minerals Import & Export Corp.
Willkie Farr & Gallagher, Walter J. Spak, Christopher Dunn, Christopher S. Stokes and Theodore C. Whitehouse, Washington, DC, for plaintiffs U.V. Intern., Sigma Corp., Southern Star, Inc., City Pipe and Foundry, Inc. and Long Beach Iron Works, Inc.
Mudge Rose Guthrie Alexander & Ferdon, N. David Palmeter, Jeffrey S. Neeley and Richard G. King, Washington, DC, for plaintiff Overseas Trade Corp.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Marc E. Montalbine, Jeffery C. Lowe, Atty.-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.
Collier, Shannon, Rill & Scott, Paul C. Rosenthal, Mary T. Staley and Robin H. Gilbert, Washington, DC, for defendant-intervenors Alhambra Foundry Inc., Allegheny Foundry Co., Bingham & Taylor Div., Virginia Industries, Inc., Charlotte Pipe & Foundry Co., East Jordan Iron Works, Inc., Lebaron Foundry Inc., Mun. Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Tyler Pipe Industries, Inc., U.S. Foundry & Mfg. Co. and Vulcan Foundry, Inc.
Plaintiffs move for judgment on the agency record contesting the Department of Commerce, International Trade Administration's ("Commerce") determination in Certain Iron Construction Castings From the People's Republic of China; Final Results of Antidumping Duty Administrative Review ("Final Results"), 57 Fed.Reg. 24,245 (1992). Specifically, plaintiffs contest Commerce's (1) reliance on rates that were the subject of judiciary challenged prior reviews as best information available ("BIA"); (2) refusal to receive and consider plaintiffs' comments in this proceeding; (3) increase of the antidumping duties payable by D & L Supply Co. from 11.66% to 92.74%; and (4) failure to institute a review for China National Machinery Import and Export Corporation ("MACHIMPEX"), Liaoning and use of BIA for determining foreign market value for MACHIMPEX Liaoning as a non-responsive company.
On June 18, 1991, Commerce issued a notice of initiation of an administrative review for the period May 1, 1990 through April 30, 1991. Initiation of Antidumping and Countervailing Duty Administrative Reviews ("1990-91 Initiation"), 56 Fed.Reg. 27,943 (1991). Commerce subsequently issued its preliminary results of this review on February 27, 1992. Certain Iron Construction Castings From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Review ("Preliminary Results"), 57 Fed.Reg. 6,709 (1992). The Final Results were issued on June 8, 1992. Final Results, 57 Fed.Reg., at 24,245. Oral Argument was heard in this case on July 20, 1993.
In reviewing a final determination of Commerce, this Court must uphold that 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) (1988). Substantial evidence has been defined as being Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). It is "not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir. 1990).
Plaintiffs D & L Supply Co. ("D & L") and Guangdong Metals & Minerals Import & Export Corporation ("Guangdong Minmetals") claim that Commerce erred in using as BIA a rate that was currently subject to judicial review. Plaintiffs D & L Supply Co. and Guangdong Minmetals Memorandum of Points and Authorities in Support of Their Rule 56.1 Motion for Judgment on the Agency Record ("D & L Memorandum") at 8. Plaintiffs U.V. International, Sigma Corporation, Southern Star, Inc., City Pipe and Foundry, Inc. and Long Beach Iron Works, Inc. ("U.V.") concur and claim that Commerce's use of BIA in this instance was arbitrary, political, capricious and an abuse of discretion. Brief in Support of Motion of Plaintiffs U.V. International, Sigma Corp., Southern Star, Inc., City Pipe and Foundry, Inc., and Long Beach Iron Works, Inc., for Judgment Upon the Agency Record ("U.V. Brief") at 2.
In the Final Results of this review, Commerce applied a margin of 92.74% as BIA. That margin had been calculated in the 1989-90 annual review, which was for the period preceding the review in this case. See Final Results of Antidumping Duty Administrative Review: Certain Iron Construction Castings From the People's Republic of China, 57 Fed.Reg. 10,644 (1992). Guangdong Minmetals also contested the Final Results for the 1989-90 review and recently the Court decided that case in Sigma Corp. v. United States ("Sigma II"), 17 CIT ___, 841 F.Supp. 1275 (1993).
In Sigma II, the Court remanded the case to Commerce to reconsider its use of Indian pig iron and scrap iron prices to calculate Sigma's and Guangdong Minmetals' foreign market value, and to recalculate freight costs using the information on the record which was submitted by respondents, among other calculations.
Plaintiffs now claim that since the rate from the prior review was being contested, it would have been more appropriate for Commerce to apply a rate as BIA that was not being contested in court. D & L Memorandum at 9; U.V. Brief at 12.
Commerce, however, deems its selection of BIA as proper stating that the mere filing of a summons and complaint initiating an action to challenge a prior Commerce decision does not negate Commerce's current decision. Defendant's Memorandum in Opposition to Plaintiffs' Motions For Judgment on the Agency Record ("Defendant's Memorandum") at 13-15. The Court agrees. If the filing of a summons and complaint precluded Commerce from using a prior margin as BIA, then a party could willfully eliminate certain rates for use as BIA simply by filing a summons and complaint challenging those earlier administrative reviews, whether or not the action was ultimately found to have merit.
Nevertheless, the fact remains that Sigma II, 17 CIT ___, 841 F.Supp. 1275, was remanded to Commerce for various calculations that will presumably change the margins used by Commerce in that review. Therefore, the issue in this case is remanded to Commerce, and once Commerce has recalculated the margins in the preceding case it should reevaluate the situation in this case and deem whether the rate from the preceding review is still appropriate for use as BIA.
Plaintiffs D & L, Guangdong Minmetals and U.V. also contest Commerce's refusal to accept plaintiffs' comments on the preliminary determination and state that to do so was a denial of plaintiffs' procedural due process rights. D & L Memorandum at 11; U.V. Brief at 3-4. Plaintiffs claim that their rejected comments merely requested that Commerce either use as BIA the rate from the original investigation which was the only rate not subject to judicial review or to hold the determination in abeyance until a correct BIA rate could be set following judicial review. Nevertheless, this issue was rectified in the preceding section of this opinion as the Court stated that Commerce's BIA selection pends the outcome of Commerce's remand on the case in the preceding review.
In this case, Commerce returned comments filed by plaintiffs following the preliminary determination and stated that "although comments were also submitted by two other importers, because they were untimely we did not consider them, and we returned them in accordance with 19 C.F.R. 353.38(a)." Final Results, 57 Fed.Reg. at 24,246.
Plaintiffs, however, do not contest that these comments were submitted untimely. Commerce's regulations state in pertinent part: "The Secretary will consider in making the final determination ... or in the final results ... only written arguments in case or rebuttal briefs filed within the time limits in this section." 19 C.F.R. § 353.38(a) (1992). Thus, Commerce acted properly in rejecting plaintiffs' untimely submissions and, therefore, its determination as to this issue was in accordance with law.
Plaintiffs D & L and Guangdong Minmetals also claim that Commerce erred by retroactively increasing the antidumping duties payable by D & L from 11.66% to 92.74%. D & L Memorandum at 14. Plaintiffs claim that this was unduly harsh and a denial of plaintiffs' substantive due process rights. Id. Plaintiffs state that the deposit rate on most of the merchandise that entered in 1990-91 was 11.66%. This amount was deposited by D & L on each entry. The merchandise was then sold to third parties. D & L claims that its...
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