Carpenter Tech. Corp. v. United States
| Decision Date | 02 June 2021 |
| Docket Number | Slip Op. 21-68,Court No. 19-00200 |
| Citation | 519 F.Supp.3d 1340 |
| Court | U.S. Court of International Trade |
| Parties | CARPENTER TECHNOLOGY CORPORATION, et al., Plaintiffs, v. UNITED STATES, Defendant, and Venus Wire Industries Pvt. Ltd., et al., Defendant-Intervenors. |
Grace W. Kim and Laurence J. Lasoff, Kelley Drye & Warren LLP, of Washington, DC, for Plaintiffs.
Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel on the brief was Elio Gonzalez, Senior Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Eric C. Emerson and St. Lutheran M. Tillman, Steptoe & Johnson LLP, of Washington, DC, for Defendant-Intervenors.
This matter is before the court following the U.S. Department of Commerce's ("Commerce" or "the agency") redetermination upon court-ordered remand. See Results of Redetermination Pursuant to Court Remand ("Remand Results"), ECF No. 34-1; see generally Carpenter Tech. Corp. v. United States ("Carpenter Tech. I "), 44 CIT ––––, 477 F. Supp. 3d 1356 (2020) ; Stainless Steel Bar From India , 84 Fed. Reg. 56,179 (Dep't Commerce Oct. 21, 2019) (final results of admin. review of the antidumping duty order; 2017–2018) (" Final Results "), ECF No. 20-4, and accompanying Issues and Decision Mem., A-533-810 (Oct. 15, 2019), ECF No. 20-5.1
Plaintiffs2 commenced this action alleging, inter alia , that Commerce failed to adequately explain its selection of partial adverse facts available (or "partial AFA")3 used to determine Defendant-Intervenors’ ("Venus")4 antidumping duty margin. See Compl. ¶¶ 20–21. In Carpenter Technology I , the court granted Defendant United States’ ("the Government") request to remand the Final Results to Commerce to permit the agency to explain further its selection of partial AFA and "modify its determination accordingly." 477 F. Supp. 3d at 1362.
In the remand redetermination, Commerce further explained its partial AFA methodology used in the Final Results . See Remand Results at 6–9. Additionally, Commerce made three corrections to Venus's margin calculation program, which increased its rate from 5.35 percent to 24.60 percent. See id. at 9–11.
Following Commerce's issuance of the Remand Results, Laxcon Steels Limited ("Laxcon"), "a producer/exporter of the subject merchandise ... who contested" the rate assigned to non-individually examined respondents in the Final Results , filed a motion for permissive intervention as a defendant-intervenor. See Mot. to Intervene ("Laxcon's Mot.") at 2, ECF No. 36. Plaintiffs and the Government opposed Laxcon's motion. See Pls.’ Opp'n to Mot. to Intervene, ECF No. 42; Def.’s Resp. to [Laxcon's] Mot. to Intervene, ECF No. 43. Venus took no position on the motion. See [Venus's] Resp. to [Laxcon's] Mot. to Intervene, ECF No. 44.
Venus submitted comments on the Remand Results contending that the three adjustments to its margin program are not in accordance with the law and exceed the scope of the court's remand order. See [Venus's] Cmts. on the Remand Redetermination ("Venus's Cmts."), ECF No. 40. The Government and Plaintiffs urge the court to sustain the Remand Results in their entirety. See Def.’s Resp. to Cmts. on the Remand Redetermination ("Gov't’s Cmts."), ECF No. 46; Pls.’ Cmts. in Supp. of the Remand Redetermination ( ), ECF No. 47.
For the following reasons, the court denies Laxcon's motion and sustains Commerce's Remand Results.
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018),5 and 28 U.S.C. § 1581(c). The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law.
19 U.S.C. § 1516a(b)(1)(B)(i). "The results of a redetermination pursuant to court remand are also reviewed for compliance with the court's remand order." SolarWorld Ams., Inc. v. United States , 41 CIT ––––, ––––, 273 F. Supp. 3d 1314, 1317 (2017) (citation omitted).
For the Preliminary Results , Commerce explained that Venus reported consuming certain stainless steel rounds ("SS rounds"), which it purchased from an unaffiliated producer, to produce subject merchandise. See Decision Mem. for Prelim. Results of Antidumping Duty Admin. Review, A-533-810 (Apr. 9, 2019) ( ) at 5–6, available at https://enforcement.trade.gov/frn/summary/india/2019-07560-1.pdf (last visited May 24, 2021). Commerce determined that the SS rounds in question were subject merchandise, id. at 8; the stainless steel bar produced from the purchased SS rounds were produced by Venus's suppliers, id. at 5–6, 8; and, thus, Venus was required to provide the unaffiliated suppliers’ cost of production for the SS rounds, id. at 9. Venus failed to provide this information and Commerce preliminarily relied on partial AFA to determine the cost of production for the SS rounds at issue. See id. at 10. For the Final Results , Commerce continued to rely on partial AFA to determine the cost of production for the SS rounds but revised its AFA methodology without providing interested parties an opportunity to comment on that methodology. See Carpenter Tech. I , 477 F. Supp. 3d at 1361–62.
Plaintiffs filed a motion for judgment on the agency record contending that: "(1) Commerce did not adequately explain or provide notice of its decision to revise its methodology for determining partial AFA for the Final Results ; and (2) Commerce's application of the revised methodology [was] not supported by substantial evidence or in accordance with the law." Id. at 1359 (citations omitted). The Government requested that the court remand the matter in its entirety to allow the agency to further explain or reconsider the partial AFA methodology "and if appropriate, the rates assigned to the respondents." Id. (citation omitted). Venus contended that the Government's remand request was "overly broad and vague," id. at 1362 n.8, but otherwise took no position on the remand request, id. at 1359.
The court found that substantial and legitimate concerns supported the Government's remand request and granted it. See id. at 1361–63. In so doing, the court rejected Venus's contention that the scope of the remand request was overly broad and vague. See id. at 1362 n.8. The court found that "the scope of the requested remand [was] appropriate," and that "it [was] appropriate that the court remand this matter to allow Commerce to consider Plaintiffs’ arguments and further explain or modify its determination accordingly." Id. at 1362.
In the remand redetermination, Commerce continued to rely on the revised partial AFA methodology from the Final Results and provided further explanation for doing so. See Remand Results at 6–9. Commerce also made three changes to Venus's margin program in conjunction with its application of partial AFA.
First, Commerce explained that it had not included some of Venus's U.S. sales in the Final Results margin calculation. See id. at 9. Thus, for the Remand Results, Commerce included all of Venus's U.S. sales in its margin program. See id. at 10, 17.
Second, Commerce also explained that the partial AFA methodology used in the Final Results "did not match sales and costs by manufacturer as required by the statute and Commerce's normal practice." Id. at 10 (). On remand, Commerce "considered manufacturer codes when comparing [the] U.S., home market and cost databases in [the] analysis." Id. at 10–11 (citation omitted); see also id. at 17–18.
Third, Commerce determined that it was appropriate to make its AFA adjustment not only to Venus's cost of production, but also to the other components of cost, including variable cost of manufacture and fixed and variable overhead. See id. at 11, 18. These adjustments were appropriate to reflect more accurately Commerce's use of AFA in the calculation of difference-in-merchandise adjustments when comparing U.S. sales to home market sales. Id. at 11.
Venus contended that the three changes to its margin calculation program were "fundamentally unfair." Id. at 15; see also Venus's Draft Remand Cmts. at 2–3. Venus did not, however, challenge the evidentiary basis underlying the corrections. See Venus's Draft Remand Cmts. at 2–3. Commerce rejected Venus's contentions, Remand Results at 16–19, and as a result of the foregoing changes, Venus's rate changed from 5.35 percent to 24.60 percent, id. at 9.
U.S. Court of International Trade ("USCIT") Rule 24 provides for two types of intervention: intervention of right and permissive intervention. See also 28 U.S.C. § 2631(j)(1), (2). A party must seek intervention as a matter of right "no later than 30 days after the date of service of the complaint" unless the party can show good cause for the delay. USCIT Rule 24(a)(3). Alternatively, a party may move for permissive intervention, in which case "the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights." USCIT Rule 24(b)(3) ; see also 28 U.S.C. § 2631(j)(2). In a case arising under 19 U.S.C. § 1516a, such as this, "only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right." 28 U.S.C. § 2631(j)(1)(B) ; see also Dofasco Inc. v. United States , 31 C.I.T. 1592, 1594–95, 519 F. Supp. 2d 1284, 1286 (2007) (...
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