Alloy Piping Products, Inc. v. U.S.
| Decision Date | 11 March 2002 |
| Docket Number | Court No. 01-00099.,Slip Op. 02-27. |
| Citation | 201 F.Supp.2d 1267 |
| Parties | ALLOY PIPING PRODUCTS, INC., Flowline Division., Markovitz Enterprises, Inc., Gerlin, Inc., and Taylor Gorge Stainless, Inc. Plaintiffs, v. UNITED STATES of America, Defendant, and Kanzen Tetsu Sdn. Bhd., Schulz (Mfg) Sdn. Bhd., and Schulz U.S.A., Inc., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Collier Shannon Scott, PLLC (Jeffrey S. Beckington and Mary T. Staley), Washington, D.C., for Plaintiffs.
Robert D. McCallum, Jr., Assistant Attorney General of the United States; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Robert E. Nielsen, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for Defendant.
White & Case, LLP (Walter J. Spak, Robert G. Gosselink, and Frank H. Morgan), Washington, D.C., for Defendant-Intervenors.
This consolidated action comes before the Court on Plaintiffs' and Defendant-Intervenors' respective motions for judgment upon the agency record pursuant to USCIT R. 56.2. At issue are several elements of the Department of Commerce's ("Commerce") final affirmative antidumping duty ("AD") determination in Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Butt-Weld Pipe Fittings From Malaysia, 65 Fed.Reg. 81,825 (Dec. 27, 2000) ("Final Determination").
Plaintiffs Alloy Piping Products, Inc., Flowline Division., Markovitz Enterprises, Inc., Gerlin, Inc., and Taylor Gorge Stainless, Inc. ("Alloy" or "Domestic Industry") contest Commerce's use of third country sales as the basis for normal value ("NV"). Defendant-Intervenors Kanzen Tetsu Sdn. Bhd., Schulz (Mfg) Sdn. Bhd., and Schulz U.S.A., Inc. ("Kanzen") claim the Final Determination is subject to a ministerial error that Commerce has failed to correct. Kanzen also renews its motion, pursuant to USCIT Rules 7(f) and 71(a), for an order requiring Commerce to supplement the administrative record. Defendant, United States, opposes all three motions. On the basis of the papers submitted, the relevant statutes and regulations, and for the reasons set forth herein, the Court denies Alloy's motion for judgment upon the agency record. The Court also denies Kanzen's motion to supplement the administrative record and its motion for judgment upon the agency record. Commerce's Final Determination is sustained. Kanzen's application for oral argument is denied. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (1994).
On January 18, 2000, Commerce initiated an AD investigation into whether stainless steel butt-weld pipe fittings from Malaysia were being sold, or were likely to be sold in the United States at less than fair value.1 See Initiation of Antidumping Duty Investigation: Stainless Steel Butt-Weld Pipe Fittings from Germany, Italy, Malaysia and the Philippines, 65 Fed.Reg. 4,595 (Jan. 31, 2000). On February 10, 2000, Kanzen submitted a questionnaire response, alleging that its Malaysian home market sales were not "viable" for purposes of calculating normal value because their volume was less than five percent of the volume of Kanzen's U.S. sales. (Alloy Confidential Appendix (Alloy Conf. App.) Tab 3.) Kanzen, therefore, submitted third country market information to serve as the basis for NV. (Id.) On February 24, 2000, the ITC published its preliminary determination that there was a reasonable indication that an industry in the United States was being materially injured by reason of imports of the subject merchandise from Malaysia. See Certain Stainless Steel Butt-Weld Pipe Fittings From Germany, Italy, Malaysia, and the Philippines, Investigations Nos. 731-TA-864-867 (Preliminary), 65 Fed.Reg. 9,298 (Feb. 24, 2000).
On August 2, 2000, after reviewing the questionnaire responses submitted by Kanzen, Commerce published its preliminary determination. See Notice of Preliminary Determination of Sales at Not Less Than Fair Value and Postponement of Final Determination: Stainless Steel Butt-Weld Pipe Fittings from Malaysia, 65 Fed.Reg. 47,398 (Aug. 2, 2000) ("Preliminary Determination"). Commerce estimated a de minimis weighted-average dumping margin of 0.59 percent and thus preliminarily determined that stainless steel butt-weld pipe fittings from Malaysia were not being sold, nor were they likely to be sold, in the United States at less than fair value. Id. Important to the instant review, Commerce determined that Kanzen's "aggregate volume of home market sales of the foreign like product was less than five percent of its aggregate volume of U.S. sales for the subject merchandise, ... [and thus] not viable." Id. at 47,399. Therefore, Commerce based NV on Kanzen's sales to the United Kingdom because Kanzen's aggregate volume of sales of the foreign like product in the U.K. was more than five percent of its aggregate volume of U.S. sales of the subject merchandise and therefore viable. See id.
Commerce then conducted a sales verification of Kanzen between September 25 and September 29, 2000. See Sales Verification Report for the Anti-Dumping Duty Investigation Covering Stainless Steel Butt-Weld Pipe Fittings from Malaysia for the period October 1, 1998 through September 30, 1999 (Oct. 11, 2000) ("Sales Verification Report"), reproduced at Kanzen's Conf.App. Tab 3. During its verification, Commerce conducted full quantity and value reconciliation of Kanzen's U.K., U.S., and home market sales. See December 15, 2000 Issues and Decision Memorandum ("Decision Memo") from Joseph A. Spetrini, Deputy Assistant Secretary, Import Administration, to Troy H. Cribb, Assistant Secretary for Import Administration at Comment 2, reproduced at U.S.App. at 7. Commerce found nothing to contradict Kanzen's assertion that its Malaysian home market was not viable for purposes of determining NV but that its third country sales to the United Kingdom did constitute a viable market for such purposes. Id.
In its comments on the Preliminary Determination Alloy objected to Commerce's reliance on Kanzen's third country sales to the United Kingdom as the basis for NV. (Petitioners' Case Brief at 3, reproduced at Alloy Conf.App. Tab 6.) Kanzen countered that the U.K. market was a proper, viable market for calculating NV. Decision Memo at Comment 2. After Commerce held a public hearing on November 22, 2000, it addressed all issues raised by the parties in its Decision Memo. See Final Determination, 65 Fed.Reg. at 81,826. There, Commerce agreed with Kanzen that the U.K. market was viable and proper to use as the comparison market. Id.
Commerce expressly adopted its resolution of the issues raised in its Decision Memo when it published its affirmative final determination of sales at less than fair value on December 27, 2000. See Final Determination, 65 Fed.Reg. at 81,826. Commerce calculated a final weighted-average dumping margin of 7.51 percent for all Malaysian producers/exporters. See id. at 81,827.
On December 28, 2000 Kanzen filed its first request with Commerce for correction of certain alleged ministerial errors that Commerce denied because it claimed the alleged errors did not fall within the definition of ministerial errors as provided for in the applicable statute and regulation.2 Kanzen filed a second request for correction of alleged ministerial errors on February 1, 2001, which Commerce again rejected, this time because it was untimely filed factual information.
On July 6, 2001 Kanzen made a motion before the Court to supplement the administrative record. Kanzen sought to include the submissions made by all parties related to its request for correction of ministerial errors. Both the United States and Alloy opposed this motion on July 20, 2001. On August 15, 2001 the Court denied Kanzen's motion with leave to renew at the time of filing its motion for judgment upon the agency record.
This Court will sustain a final determination by Commerce 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) (1994). The substantial evidence standard applies to Commerce's factual findings. This standard requires more than a "mere scintilla" of evidence, Primary Steel, Inc. v. United States, 834 F.Supp. 1374, 1380 (Ct. Int'l Trade 1993), and consists of "such 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, 83 L.Ed. 126 (1938); Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). Under this standard, the Court will not disturb an agency determination if its factual findings are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the agency's conclusion. See Heveafil Sdn. Bhd. & Filati Lastex Sdn. Bhd. v. United States, No. 98-04-00908, 2001 WL 194986, at *2 (Ct. Int'l Trade Feb. 27, 2001) (citing Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1563 (Fed. Cir.1984)).
"Otherwise in accordance with law" governs Commerce's legal interpretations of the statutes it administers. To determine whether Commerce's legal interpretation and application of the antidumping statutes are in accordance with law, the Court applies the two-step...
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