Carpenter Tech. Corp.. v. United States

• Decision Date: 26 May 2011
• Docket Number: Slip Op. 11–61.Court No. 07–00366.
• Citation: 774 F.Supp.2d 1343
• Parties: CARPENTER TECHNOLOGY CORPORATION; Valbruna Slater Stainless, Inc.; and Electralloy Corporation, a Division of G.O. Carlson, Inc., Plaintiffs,v.UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

774 F.Supp.2d 1343

CARPENTER TECHNOLOGY CORPORATION; Valbruna Slater Stainless, Inc.; and Electralloy Corporation, a Division of G.O. Carlson, Inc., Plaintiffs,

v.UNITED STATES, Defendant.

Slip Op. 11–61.Court No. 07–00366.

United States Court of International Trade.

May 26, 2011.

Kelley Drye & Warren, LLP (Laurence J. Lasoff, Grace W. Kim, and Mary T. Staley), Washington, DC, for plaintiffs.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, Washington, DC, United States Department of Justice (L. Misha Preheim); Sapna Sharma, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

OPINION AND ORDER

STANCEU, Judge:

Plaintiffs Carpenter Technology Corporation, Valbruna Slater Stainless, Inc., and Electralloy Corporation, a Division of G.O. Carlson, Inc. (collectively, “plaintiffs”) are domestic producers of stainless steel bar who brought this action to contest the final determination (“Final Results”) in an administrative review of an antidumping duty order on imports of stainless steel bar from India (the “subject merchandise”). Notice of Final Results & Final Partial Rescission of Antidumping Duty Admin. Review: Stainless Steel Bar from India, 72 Fed.Reg. 51,595 (Sept. 10, 2007) (“ Final Results ”). Before the court is the response of the International Trade Administration, United States Department of Commerce (“Commerce” or the “Department”) to the court's order in Carpenter Tech. Corp. v. United States, 33 CIT ––––, 662 F.Supp.2d 1337 (2009) (“ Carpenter ”). Interim Remand Determination in Carpenter Tech. Corp. et al. v. United States, Court No. 07–00366 (“ Interim Remand Determination ”). In Carpenter, the court held contrary to law the Department's decision to examine individually only two respondents, Bhansali Bright Bars Pvt., Ltd. (“Bhansali”) and Venus Wire Industries Pvt., Ltd. (“Venus”), of eight respondents in the administrative review. Carpenter, 33 CIT at ––––, 662 F.Supp.2d at 1347. The court concluded that this decision “was based on a statutory construction at odds with the clearly expressed intent of Congress” because “Commerce implicitly construed [19 U.S.C.] § 1677f–1(c)(2) such that any number of exporters/producers larger than two was a ‘large number of exporters or producers' within the meaning of that term as used in the statutory provision.” Id. at ––––, 662 F.Supp.2d at 1342–43 (citing Tariff Act of 1930 (“Tariff Act” or the “Act”), § 777A(c)(2), 19 U.S.C. § 1677f–1(c)(2) (2006)).

The court ordered in Carpenter that Commerce report to the court in an interim decision “whether it will conduct individual examinations of, and calculate individual weighted-average dumping margins for, Isibars Limited, Grand Foundry, Ltd., Sindia Steels Limited, Snowdrop Trading Pvt. Ltd., Facor Steels, Ltd., and/or Mukand Ltd.,” the respondents the Department declined to examine individually in the review. Id. at ––––, 662 F.Supp.2d at 1347. The court further ordered that Commerce, if it decides to proceed with individual examinations, “also shall inform the court of the time period that Commerce will require to complete such examinations and issue an amended final determination of the results of the administrative review....” Id. at ––––, 662 F.Supp.2d at 1347–48.

The response to the court's order, titled “Interim Remand Determination,” announces that Commerce will examine individually on remand two additional respondents, Sindia Steels Limited (“Sindia”) and Snowdrop Trading Pvt. Ltd. (“Snowdrop”), which Commerce chose because these two respondents, of the six respondents who remain unexamined, account for the two largest volumes of exports of subject merchandise to the United States. Interim Remand Determination 26. Commerce further informed the court that it will require a minimum of 365 days to complete a review of Sindia and Snowdrop and issue amended final results. Id. at 2.

Commenting to the court on the Interim Remand Determination, plaintiffs raise two objections. They argue, first, that Commerce improperly refused to rescind the review as to Grand Foundry, Ltd. (“Grand Foundry”), Sindia, and Snowdrop despite plaintiffs' having notified the Department, in comments on a draft version of the Interim Remand Determination (the “Draft Results of Redetermination”) that plaintiffs were withdrawing their request for review of these three respondents. Pls.' Comments on Commerce's Interim Remand Determination Pursuant to Ct. Remand (Slip Op. 09–134) 1–3 (“Pls.' Comments”). Second, they argue that the Department's proposal to examine on remand only Sindia and Snowdrop, rather than all unexamined respondents, is inconsistent with the court's ruling in Carpenter, not supported by substantial evidence, and otherwise not in accordance with law. Id. at 4–7.

Also before the court is defendant's motion for entry of judgment. Def.'s Mot. for Entry of Final J. (“Def.'s Mot.”). Defendant argues that it is appropriate that the court enter a judgment to conclude this litigation rather than issue another remand order, regardless of how the court rules on the Interim Remand Determination.

With respect to plaintiffs' objection that the Department unlawfully refused to allow plaintiffs' withdrawal of the request for review of Grand Foundry, Sindia, and Snowdrop, the court concludes that plaintiffs are not entitled to relief. Second, the court decides that plaintiffs have waived any challenge to the Department's decision to examine individually on remand only Sindia and Snowdrop. Plaintiffs did not exhaust their administrative remedies as to any such challenge, having failed to object to the subject decision in response to the Department's request for comment on the Draft Results of Redetermination, and the futility exception to the exhaustion requirement is unavailable in the circumstances of this case. As a consequence of the unexcused failure to exhaust administrative remedies, plaintiffs are entitled only to a judicial remedy by which Commerce will conduct individual examinations of Sindia and Snowdrop and redetermine the weighted-average dumping margins for all respondents other than Bhansali and Venus. Finally, ruling on defendant's motion, the court declines to order judgment at this time. The court orders Commerce to complete the administrative review on remand and submit amended final results for the court's review prior to publication.

I. Background

Background information is presented in Carpenter. 33 CIT at ––––, 662 F.Supp.2d at 1339–40. Additional background is included below as a summary and to address events that have occurred since Carpenter was decided.

During the review, Commerce examined individually only the two highest-volume exporters/producers, Bhansali and Venus. Id. at ––––, 662 F.Supp.2d at 1339. Because it determined a de minimis margin for Venus in the Final Results, Commerce, pursuant to its practice, assigned the margin it determined for Bhansali, 2.01 %, to the six respondents that were not selected for individual examination, which were Facor Steels, Ltd. (“Facor”), Grand Foundry, Isibars Limited (“Isibars”), Mukand Ltd. (“Mukand”), Sindia, and Snowdrop. Id. at ––––, 662 F.Supp.2d at 1339 n. 1, 1339–40.

On March 30, 2010, Commerce released to plaintiffs the Draft Results of Redetermination and invited comment. Interim Remand Determination 26. In their written response, plaintiffs expressly declined to comment on the Draft Results of Redetermination at that time, stating that “[w]hile reserving petitioners' right to comment to the Court on the Department's conclusion of what constitutes a large number of respondents, petitioners hereby withdraw their request for review of Grand Foundry, Ltd. (‘Grand Foundry’), Sindia, and Snowdrop....” Letter from Pls. to Sec'y of Commerce 2 (Apr. 6, 2010) (Admin. R. Doc. No. 4020) (“ Pls.' Withdrawal ”). The request for review that plaintiffs sought to withdraw was the only remaining request for review of any of those three respondents. Notice of Prelim. Results of Antidumping Duty Admin. Review, Intent to Rescind & Partial Rescission of Antidumping Duty Admin. Review: Stainless Steel Bar from India, 72 Fed.Reg. 10,151, 10,152 (Mar. 7, 2007). In the Interim Remand Determination, Commerce refused to recognize the withdrawal of plaintiffs' review request, reasoning that “because the Department is not conducting an administrative review at this time, this request is inappropriate.” Interim Remand Determination 27.

On April 22, 2010, defendant filed the Interim Remand Determination with the court. Interim Remand Determination. On the same date, defendant filed its motion that the court enter a judgment either affirming or rejecting the Interim Remand Determination. Def.'s Mot. On May 12, 2010, plaintiffs filed comments objecting to the Interim Remand Determination and requesting another remand. Pls.' Comments. On June 11, 2010, defendant responded to those comments. Def.'s Resp. to Pls.' Comments on Commerce's Interim Remand Determination (“Def.'s Resp.”). After obtaining leave from the court, plaintiffs replied to the defendant's response on June 28, 2010. Pls.' Reply to Def.'s Resp. Comments on Commerce's Interim Remand Determination (“Pls.' Reply”).

After a telephone conference with the parties on February 7, 2011, the court ordered the parties to file a joint status report with the court within forty-five days “on the results of discussions between the parties concerning the possible settlement of the case.” Order (Feb. 7, 2011), ECF No. 71. In the joint response to the order, which defendant filed on March 25, 2011, the parties informed the court that despite considerable discussion they have been unable to reach a settlement and requested “that the Court issue a decision regarding the remand determination filed by the Department of Commerce, and an order...