D & L SUPPLY CO. v. US, Slip Op. 95-92. Court No. 92-06-00424.

• Decision Date: 15 May 1995
• Docket Number: Slip Op. 95-92. Court No. 92-06-00424.
• Citation: 888 F. Supp. 1191
• 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

888 F. Supp. 1191

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.

Slip Op. 95-92. Court No. 92-06-00424.

United States Court of International Trade.

May 15, 1995.

Cameron & Hornbostel, Washington, DC (Dennis James, Jr.), for plaintiffs D & L Supply Co. and Guangdong Metals & Minerals Import & Export Corp.

White & Case, Washington, DC (Walter J. Spak and Vincent Bowen), for plaintiffs U.V. Intern., Sigma Corp., Southern Star, Inc., City Pipe and Foundry, Inc. and Long Beach Iron Works, Inc.

Ross & Hardies, Washington, DC (Jeffrey S. Neeley), 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, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.

Collier, Shannon, Rill & Scott, Washington, DC (Paul C. Rosenthal, Mary T. Staley and Robin H. Gilbert), 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., Municipal Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Tyler Pipe Industries, Inc., U.S. Foundry & Mfg. Co. and Vulcan Foundry, Inc.

OPINION

TSOUCALAS, Judge:

Plaintiff D & L Supply Company ("D & L") challenges the Department of Commerce, International Trade Administration's ("Commerce") redetermination on remand filed in this case, Iron Construction Castings From the People's Republic of China, Final Results of Redetermination Pursuant to Court Remand, Slip Op. 93-245 ("Remand Results"). Specifically, D & L contests as unreasonable and an abuse of discretion Commerce's use in this case of the rate from the preceding review of iron construction castings from the People's Republic of China as best information available ("BIA"), notwithstanding that Commerce recalculated the margins in the preceding case.

Background

In D & L Supply Co. et al. v. United States, 17 CIT ____, 841 F.Supp. 1312 (1993), the Court remanded this case for, inter alia, Commerce to determine whether the original rate from the preceding review of iron construction castings is still appropriate for use as BIA after Commerce had recalculated the dumping margin in the preceding case.

Commerce filed the Remand Results on June 6, 1994. Oral argument was held on August 12, 1994.

Discussion

Commerce's final results filed pursuant to a remand will be sustained unless that determination 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 is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).

Pursuant to this Court's remand, Commerce determined that the BIA provision of the antidumping statute, 19 U.S.C. § 1677e (1988), does not require Commerce to revise the BIA rate used in a review where that rate is subsequently recalculated upon Court order. Remand Results at 4. Thus, Commerce found that, although the 92.74 percent rate of the preceding review was subsequently changed on remand, it was not relevant to whether it remains the appropriate rate to rely upon as BIA for this review. Remand Results at 17. Accordingly, Commerce continues to rely upon the 92.74 percent rate from the 1989-90 review as BIA in this case. Remand Results at 21.

D & L argues that Commerce erred by failing to adjust the rate in the instant case after the rate upon which it was based was changed on remand. D & L contends that Commerce's position that 19 U.S.C. § 1677e(c) does not require revision of the BIA rate used in a review where that rate is subsequently modified as a result of ongoing proceedings effectively ousts this Court of jurisdiction in reviews where BIA is an issue. Moreover, D & L argues that Commerce's refusal to revise its BIA rate alters the purpose of the BIA provision from an investigative tool to a punishment. Plaintiff D & L Supply Company's Comments on the Commerce Department's Redetermination in Iron Construction Castings From the People's Republic of China/1990-91 ("Plaintiff's Comments") at 12-14.

D & L interprets the Court's remand instructions in D & L Supply Co., 17 CIT ____, 841 F.Supp. 1312, as requiring Commerce to revise the rate from the prior review and then reevaluate the use of the rate from the preceding review. Accordingly, D & L argues Commerce has not followed the Court's remand order. Plaintiff's Comments at 5-8.

In addition, D & L claims that the rationale for not responding to a questionnaire because the responses would yield a dumping rate equal to or higher than BIA is not applicable here. D & L contends that the exporter in the instant case did not respond to the questionnaire because it had abandoned the United States market place and had no reason to comply. D & L claims that exporters do not know what margin will be applied because they do not know what methodology will be used for the calculations. D & L argues that, by determining that the BIA rate of 92.74 percent should not be adjusted in this case even though that rate was subsequently reduced to 31.05 percent in the prior review, Commerce adversely affects the U.S. importer, who had no control over the responses to the questionnaire, and not the Chinese exporter who did not respond to the questionnaire. Finally, D & L argues that it is inequitable to assign an 11.66 percent duty to MACHIMPEX Liaoning's imports while assigning a 92.74 percent duty to Guangdong Metals & Minerals Import & Export Corporation ("Guangdong Minmetals"). Alternatively, D & L argues the appropriate rate under Commerce's reasoning would be 45.92 percent, the only final rate at the time the exporters chose not to respond. Plaintiff's Comments at 2-4, 10-12.

Commerce urges that its adherence to the 92.74 percent rate originally applied is appropriate as BIA because it upholds the purposes for the BIA rule and overcomes administrative difficulties by barring changes in one period from affecting subsequent review periods. Defendant's Rebuttal Comments in Support of Remand Results ("Commerce's Rebuttal") at 4-5.

Commerce defends its redetermination decision by arguing that the exporter was aware that the BIA rate from the final results of the 1989-90 review would be used in this case if those final results were issued before the final results in the instant case. Commerce adds that the exporter decided it preferred to refuse to answer the questionnaire and be assigned the highest prior margin as BIA. Moreover, Commerce argues there is no evidence that the amended rate for the 1989-90 review period more accurately reflects the exporter's pricing practices than the original BIA rate from that review. Commerce asserts that the rate determined in the instant case is not incorrect but, as the name suggests, based upon the best information available at the time the determination was made. Commerce's Rebuttal at 5-8.

Commerce refutes D & L's claim that Commerce's position in this case ousts this Court of jurisdiction where BIA is an issue and argues that the Court's role in a BIA case is to determine whether the exporter failed to respond to an information request and if so, whether the rate determined by Commerce is supported by the administrative record. Furthermore, Commerce contends it used standard methodology to determine the dumping margin, it could not have considered rates that were determined subsequently, and it need not have considered the rates assessed to MACHIMPEX, an exporter that did not receive adequate notice of review. Commerce argues that D & L's argument that the rate is suspect because it and not the non-responding exporter will have to pay the import duties is without merit. Commerce's Rebuttal at 7-9.

Finally, Commerce argues that it has adhered to the decision of this Court to "deem whether the rate from the preceding review is still appropriate for use as BIA," D & L Supply, 17 CIT at ___, 841 F.Supp. at 1315, and deemed that the original rate from the preceding review is indeed still appropriate. Commerce's Rebuttal at 9-10.

Defendant-intervenors, domestic industry, support Commerce's decision to retain the BIA rate of 92.74 percent and assert that, as the BIA rate was appropriate at the time of the final determination, it therefore remains appropriate. Domestic industry, citing Allied-Signal Aerospace Co. v. United States, 16 CIT 811, 814, 802 F.Supp. 463, 465 (1992), rev'd, remanded, 996 F.2d 1185 (Fed.Cir. 1993), aff'd, 28 F.3d 1188 (Fed.Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 722, 130 L.Ed.2d 628 (1995), claims that the BIA rate does not have to be the most accurate rate, but merely a "usable" one when an exporter fails to respond. Domestic Industry's Comments on the Commerce Department's Remand Results ("Domestic Industry's Comments") at 1-3.

Domestic industry contends that the only issue that should be before this Court and the only one over which it has jurisdiction is whether Commerce's selection of a BIA rate at the time of its final results was lawful and supported...