Allegheny Ludlum Corp. v. U.S., SLIP OP. 03-89.

• Decision Date: 24 July 2003
• Docket Number: SLIP OP. 03-89.,Court No. 02-00502.
• Citation: 276 F.Supp.2d 1344
• Parties: ALLEGHENY LUDLUM CORP., AK Steel Corp., Butler Armco Independent Union, J & L Specialty Steel, Inc., United Steelworkers of America, AFL-CIO/CLC, and Zanesville Armco Independent Organization, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. Court of International Trade

276 F.Supp.2d 1344

ALLEGHENY LUDLUM CORP., AK Steel Corp., Butler Armco Independent Union, J & L Specialty Steel, Inc., United Steelworkers of America, AFL-CIO/CLC, and Zanesville Armco Independent Organization, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

SLIP OP. 03-89.

Court No. 02-00502.

United States Court of International Trade.

July 24, 2003.

COPYRIGHT MATERIAL OMITTED

Collier Shannon Scott, PLLC (David A. Hartquist, Jeffrey S. Beckington, Adam H. Gordon), Washington, D.C., for Plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigations Branch, Civil Division, United States Department of Justice; Lucius B. Lau, Assistant Director, Commercial Litigations Branch, Civil Division, United States Department of Justice; Ada Bosque, Trial Attorney, Commercial Litigations Branch, Civil Division, United States Department of Justice; Scott D. McBride, Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, for Defendant, of counsel.

OPINION

CARMAN, Chief Judge.

This matter comes before the Court on a motion for judgment on the administrative record filed by Plaintiffs, Allegheny Ludlum Corporation, AK Steel Corporation, Butler Armco Independent Union, J & L Specialty Steel, Inc., United Steelworkers of America, AFL-CIO/CLC, and Zanesville Armco Independent Organization ("Plaintiffs"), domestic producers of stainless steel plate coils or unions representing workers who produce stainless steel plate coils. Plaintiffs challenge the final results by the United States Department of Commerce ("Commerce") in Stainless Steel Plate in Coils From Taiwan: Final Results and Rescission in Part of Antidumping Duty Administrative Review, 67 Fed. Reg. 40,914, 40,916-17 (June 14, 2002) ("Final Results"). Plaintiffs seek remand of the antidumping duty proceedings for Commerce to conduct a "meaningful review" of alleged "middleman" dumping by Ta Chen Stainless Steel Pipe Co., Ltd. ("Ta Chen Taiwan") and its U.S. affiliate, Ta Chen International (CA) Corp. ("TCI") (hereinafter referred to as "Ta Chen" collectively) and to determine a new cash deposit rate; and for Commerce to assign a dumping margin of 10.20% ad valorem, the highest margin calculated in a segment of the proceeding, to Yieh United Steel Corp. ("YUSCO"), the Taiwanese producer of the subject merchandise, based on total adverse facts available. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c) (2000).

BACKGROUND

This is the Second Administrative Review of the antidumping duty order against stainless steel plate in coils from Taiwan published by Commerce in 1999. Antidumping Duty Orders; Certain Stainless Steel Plate in Coils From Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999) ("Taiwanese Order").¹ In the underlying investigation that resulted in the antidumping duty order, Commerce determined Ta Chen was engaged in "middleman" dumping of subject merchandise it purchased from YUSCO. Notice of Final Determination of Sales at Less than Fair Market Value: Stainless Steel Plate in Coils From Taiwan, 64 Fed.Reg. at 15,494. Specifically, Commerce found that YUSCO sold the subject merchandise to Ta Chen at less than fair value, and Ta Chen sold this merchandise below its acquisition cost. Id. Using a combination rate, Commerce calculated the two cash deposit rates for subject merchandise produced by YUSCO: (1) 8.02% ad valorem rate for Ta Chen's direct U.S. sales; (2) 10.20% ad valorem rate for YUSCO's U.S. sales through middleman Ta Chen, with the additional 2.18% attributable to Ta Chen's dumping of the subject merchandise. See id. at 15,507.²

In the first administrative review, covering November 4, 1998, to April 30, 2000, Commerce concluded that the subject merchandise Ta Chen sold during the review period was entered prior to the preliminary determination. Stainless Steel Plate in Coils From Taiwan: Final Rescission of Antidumping Duty Administrative Review, 66 Fed.Reg. 18,610, 18,612 (Apr. 10, 2001) ("First Admin. Review, Final Results"). As a result, Commerce rescinded its review of Ta Chen. Id. The rescission was affirmed by this Court. Allegheny Ludlum v. United States, 240 F.Supp.2d 1262, 1267 (CIT 2002), appeal docketed, No. 03-1096 (Fed.Cir. Nov. 22, 2002) ("Allegheny I").

On May 1, 2001, Commerce published a notice of opportunity to request an administrative review of the antidumping duty order for the period of May 1, 2000, to April 30, 2001. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 66 Fed. Reg. 21,740 (May 1, 2001). Plaintiffs requested an administrative review of sales of the subject merchandise by YUSCO and Ta Chen. Final Results, 67 Fed.Reg. at 40,915. Pursuant to that request, Commerce initiated this administrative review in accordance with 19 U.S.C. § 1675(a) on June 19, 2001. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 66 Fed.Reg. 32,934 (June 19, 2001).

In the course of its investigation, Commerce issued an antidumping duty questionnaire to YUSCO and Ta Chen on July 10, 2001. Final Results, 67 Fed.Reg. at 40,915; (Letter from Rick Johnson, Program Manager, Enforcement Group III, Office 9 to Peter J. Koenig, Miller & Chevalier of 07/10/01; Letter from Rick Johnson, Program Manager, Enforcement Group III, Office 9 to William Clinton, White & Case of 07/10/01³ (Def.'s App. Ex 1)). The letters accompanying the questionnaires stated:

All parties are requested to respond to Sections A (Organization, Accounting Practices, Markets and Merchandise), B (Sales in the Home Market or to a Third Country), and C (Sales to the United States). If, after examining Sections A and C of the questionnaire, you conclude that YUSCO [or Ta Chen] and its affiliates did not have any U.S. sales or shipments during the review period identified above, please submit a statement to that effect, following the data submission requirements specified in the general instructions. If you do not submit such a statement for the administrative record in this case, we may conclude that YUSCO [or Ta Chen] has not been responsive to this questionnaire and may proceed on the basis of facts otherwise available.

(Def.'s App. Ex. 1 at 1-4.) The letters note that the respondents could request an extension of time in writing before the due date. (Id. at 2, 4.)

Ta Chen responded on August 2, 2001, asking Commerce that it not be required to complete the antidumping duty questionnaire because Ta Chen had no sales, entries, or shipments to the U.S. of the subject merchandise during the period of review. Final Results, 67 Fed.Reg. at 40,915; (Letter from Peter Koenig, Miller & Chevalier to U.S. Secretary of Commerce of 08/02/01 (Pls.' App. Ex. 4)). If Ta Chen would not be exempted, Ta Chen requested an extension of time to respond to Commerce's questionnaire. (Pls.' App. Ex. 4.) Commerce responded to Ta Chen by a letter dated August 2, 2001, in which Commerce extended the time for Ta Chen to respond to August 14, 2001, and notified Ta Chen that the information submitted will be subject to verification. (Letter from Rick Johnson, Program Manager, Enforcement Group III, Office 9 to Peter J. Koenig, Miller & Chevalier of 08/02/01 (Def.'s App. Ex. 2 at 5-6).) Commerce informed Ta Chen that Commerce was "unable to evaluate [the] request for exemption for filing a response to the questionnaire" at that time. (Id. at 5.) Commerce requested additional information concerning sales, entries, or shipments from Ta Chen's affiliates during the period of review and information regarding sales during the period of review by Ta Chen's subsidiaries that "resulted from sales and or shipments from Ta Chen to the United States during the 1^st administrative review period (November 4, 1998 through April 30, 2000)." (Id.)

On August 14, 2001, Ta Chen responded to the request for specific information by reiterating that it had "no sales, import entries or exports to the United States" of the subject merchandise during the current period of review, May 1, 2000, to April 30, 2001. (Letter from Peter Koenig, Miller & Chevalier to U.S. Secretary of Commerce of 08/14/01 (Pls.' App. Ex. 5).) Ta Chen informed Commerce that none of its affiliates or subsidiaries had U.S. sales or shipments of the subject merchandise in the current period of review or during the first administrative review period. (Id.) Ta Chen requested another extension of time to respond to Section A and other portions of the questionnaire, but again asked that it be exempt from responding to the questionnaire because it "[had] no entries subject to dumping duties . . . and [did] not anticipate or plan on having future such entries — i.e., the dumping order fully stopped the imports of concern." (Id.) Commerce granted Ta Chen's request for the extension, allowing Ta Chen to respond to Section A by August 20, 2001, and the remaining portions of the questionnaire by August 24, 2001. (Letter from Rick Johnson, Program Manager, Enforcement Group III, Office 9 to Peter J. Koenig, Miller & Chevalier of 08/16/01 (Pls.' App. Ex. 6).)

On August 20, 2001, Ta Chen once again requested to be exempt from answering the questionnaire because of the nonexistence of sales, entries, or shipments of the subject merchandise, with one exception. (Letter from Peter Koenig, Miller & Chevalier to U.S. Secretary of Commerce of 08/20/01 (Pls.' App. Ex. 7).) Ta Chen informed Commerce that one of its affiliates, TCI "had some sales of [the subject merchandise] from its U.S. warehouses during the [current review] period May 1, 2000 to April 30, 2001 (as well as [the first administrative review period] November 4, 1998 to April 30, 2000) which [were] imported before November 4, 1998 and thus [are] not subject to dumping liability." (Id.) Ta Chen...