Allied Tube & Conduit Corp. v. U.S.

• Decision Date: 12 May 2005
• Docket Number: No. SLIP OP. 05-56.,No. SLIP OP. 04-00439.,SLIP OP. 05-56.,SLIP OP. 04-00439.
• Citation: 374 F.Supp.2d 1257
• Parties: ALLIED TUBE & CONDUIT CORP. and Wheatland Tube Company, Plaintiffs, v. UNITED STATES, Defendant, and Borusan Birlesik Boru Fabrikalari A.S., Defendant-Intervenor.
• Court: U.S. Court of International Trade

Page 1257

374 F.Supp.2d 1257

ALLIED TUBE & CONDUIT CORP. and Wheatland Tube Company, Plaintiffs, v. UNITED STATES, Defendant, and Borusan Birlesik Boru Fabrikalari A.S., Defendant-Intervenor.

No. SLIP OP. 05-56.

No. SLIP OP. 04-00439.

United States Court of International Trade.

May 12, 2005.

Schagrin Associates (Roger B. Schagrin) for Allied Tube & Conduit Conduit Corp. and Wheatland Tube Company, plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Kelly B. Blank); James K. Lockett, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, defendant, of counsel.

Lafave & Sailer LLP (Arthur J. Lafave III) for Borusan Birlesik Boru Fabrikalari A.S., defendant-intervenor.

TSOUCALAS, Senior Judge.

This action concerns the claims raised by Allied Tube & Conduit Corp. and Wheatland Tube Company (collectively "Allied Tube"), who move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Notice of Final Results of Antidumping Administrative Review for Certain Welded Carbon Steel Pipe and Tube from Turkey ("Final Results"), 69 Fed. Reg. 48,843 (Aug. 11, 2004). Allied Tube complains that Commerce violated the statute, legislative history and its own policy by failing to require proof of import duties paid on inputs used in producing the merchandise subject to this action, which was sold in the home market. Moreover, Allied Tube claims that the record does not contain substantial evidence to support Commerce's conclusion that import duties were paid on inputs used in production for home market sales.

Commerce maintains that it properly applied its standard two-prong test for granting a duty drawback adjustment and properly determined that Borusan Birlesik Boru Fabrikalari A.S. ("Borusan") satisfied the requirements of such test. Commerce maintains that it verified that Borusan paid duties upon inputs used in the production of merchandise sold domestically. Borusan adds that there is no additional requirement that a respondent show that it paid duties on other imported raw materials or that its home market price was based on a duty-inclusive cost.

Held: Allied Tube's 56.2 motion is denied. Case dismissed.

OPINION

This action concerns the claims raised by Allied Tube & Conduit Corp. and Wheatland Tube Company (collectively "Allied Tube"), who move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Notice of Final Results of Antidumping Administrative Review for Certain Welded Carbon Steel Pipe and Tube from Turkey ("Final Results"), 69 Fed. Reg. 48,843 (Aug. 11, 2004). Allied Tube complains that Commerce violated the statute, legislative history and its own policy by failing to require proof of import duties paid on inputs used in producing the merchandise subject to this action, which was sold in the home market. Moreover, Allied Tube claims that the record does not contain substantial evidence to support Commerce's conclusion that import duties were paid on inputs used in production for home market sales.

Commerce maintains that it properly applied its standard two-prong test for granting a duty drawback adjustment and properly determined that Borusan Birlesik Boru Fabrikalari A.S. ("Borusan") satisfied the requirements of such test. Commerce maintains that it verified that Borusan paid duties upon inputs used in the production of merchandise sold domestically. Borusan adds that there is no additional requirement that a respondent show that it paid duties on other imported raw materials or that its home market price was based on a duty-inclusive cost.

BACKGROUND

This matter concerns an administrative review of an antidumping duty order on certain welded carbon steel pipe and tube from Turkey, covering the period of review May 1, 2002 through April 30, 2003. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 68 Fed. Reg. 39,055 (July 1, 2003). On April 6, 2004, Commerce published its preliminary results. See Notice of Preliminary Results of Antidumping Duty Administrative Review for Certain Welded Carbon Steel Pipe and Tube From Turkey ("Preliminary Results"), 69 Fed. Reg. 18,049 (Apr. 6, 2004). For the Preliminary Results, Commerce compared the export price ("EP") to the normal value. See id. at 18,050. Commerce calculated EP by using the packed delivered price to unaffiliated purchasers in the United States as the starting price. See id. Commerce then made deductions from the starting price for: foreign inland freight, foreign brokerage and handling, international freight, marine insurance, and other related charges. See id. In addition, Commerce added duty drawback to the starting price. See id. In its comments to Commerce on the Preliminary Results, Allied Tube argued that Borusan was not entitled to a duty drawback adjustment. Borusan failed to provide evidence that it paid duties upon inputs used to produce the foreign like product sold in the home market. See Pls.' App. Tab 8 at 3. On August 11, 2004, Commerce published its Final Results. See Final Results, 69 Fed. Reg. at 48,843. Commerce found that Borusan had paid import duties upon inputs used to produce subject merchandise for sales in Turkey. See Issues & Decision Mem.¹ at 5-6. Allied Tube now challenges Commerce's decision to grant Borusan a drawback adjustment. Oral arguments were heard by the Court on April 27, 2005.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (2000) and 28 U.S.C. § 1581(c) (2000).

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).

I. Substantial Evidence Test

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 488, 71 S.Ct. 456)).

II. Chevron Two-Step Analysis

To determine whether Commerce's interpretation and application of the antidumping statute is "in accordance with law," the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step, the Court reviews Commerce's construction of a statutory provision to determine whether "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ [s] the `traditional tools of statutory construction.'" Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed.Cir.1998) (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). "The first and foremost `tool' to be used is the statute's text, giving it its plain meaning. Because a statute's text is Congress' final expression of its intent, if the text answers the question, that is the end of the matter." Id. (citations omitted). Beyond the statute's text, the tools of statutory construction "include the statute's structure, canons of statutory construction, and legislative history." Id. (citations omitted); but see Floral Trade Council v. United States, 23 CIT 20, 22 n. 6, 41 F.Supp.2d 319, 323 n. 6 (1999) (noting that "not all rules of statutory construction rise to the level of a canon") (citation omitted).

If, after employing the first prong of Chevron, the Court determines that the statute is silent or ambiguous with respect to the specific issue, the question for the Court becomes whether Commerce's construction of the statute is permissible. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Essentially, this is an inquiry into the reasonableness of Commerce's interpretation. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996). Provided Commerce has acted rationally, the Court may not substitute its judgment for the agency's interpretation. See Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994) (holding that "a court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another"); see also IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed.Cir.1992). The "Court will sustain the determination if it is reasonable and supported by the record as a whole, including whatever fairly detracts from the substantiality of the evidence." Negev Phosphates, Ltd. v. United States, 12 CIT...