Chia Far Indus. Factory Co., Ltd. v. U.S.

• Decision Date: 02 August 2004
• Docket Number: SLIP OP. 04-94.,Court No. 02-00243.
• Citation: 343 F.Supp.2d 1344
• Parties: CHIA FAR INDUSTRIAL FACTORY CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and Allegheny Ludlum Corp., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

343 F.Supp.2d 1344

CHIA FAR INDUSTRIAL FACTORY CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and Allegheny Ludlum Corp., et al., Defendant-Intervenors.

SLIP OP. 04-94.

Court No. 02-00243.

United States Court of International Trade.

August 2, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

DeKieffer & Horgan, (A. David Lafer, J. Kevin Horgan, and John J. Kenkel) for Plaintiff Chia Far Industrial Factory Co., Ltd.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Michael S. Dufault, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; and Jonathan J. Engler, Attorney, Office of Chief Counsel, U.S. Department of Commerce, for Defendant United States, of counsel.

Collier, Shannon & Scott, PLLC, Washington, DC, (David A. Hartquist, Jeffrey S. Beckington, and Adam H. Gordon) for Plaintiffs and Defendant-Intervenors Allegheny Ludlum Corp., et al.

White & Case, LLP (William J. Clinton and Adams C. Lee) for Defendant-Intervenors Yieh United Steel Corp.

OPINION

WALLACH, Judge.

I Introduction

In this action, Plaintiff Chia Far industrial Factory Co., Ltd. ("Chia Far") and Plaintiffs and Defendant-Intervenors Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, J & L Specialty Steel, Inc., United Steel Workers of America, AFL-CIO/CLC, and Zanesville Armco Independent Organization (collectively "Allegheny") challenge the final results of an administrative review issued by the United States Department of Commerce ("Commerce") with respect to Stainless Steel Sheet and Strip From Taiwan: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 67 Fed.Reg. 6,682 (Feb. 13, 2002) ("Final Results"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1999). For the following reasons, this court finds Commerce's determination is in accordance with the law.

II Background

On July 20, 2000, Commerce published a notice in the Federal Register of opportunity to request an administrative review of merchandise subject to the antidumping order on stainless steel sheet and strip coils from Taiwan. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 65 Fed.Reg. 45,035 (July 20, 2000). Chia Far and Yieh United Steel Co. ("YUSCO"), Taiwanese producers and exporters of the subject merchandise during the period of review ("POR"),¹ June 8, 1999, through June 30, 2000, requested an administrative review for their merchandise entering the United States during the period. See Defendant's Public Version Appendix at 3 ("DPVA"). Allegheny also requested a review of YUSCO, Tung Mung and Ta Chen Stainless Pipe Co., Ltd. ("Ta Chen") and their affiliates,² pursuant to 19 U.S.C. § 1677(33) (2000). DPVA at 4. Accordingly, on September 6, 2000, Commerce initiated an administrative review as to Chia Far, Tung Mung and YUSCO. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 65 Fed.Reg. 53,980 (Sept. 6, 2000).

On September 7, 2000, Commerce issued its initial antidumping questionnaires for its administrative review. See DPVA at 8. On October 12 and November 6, 2000, Chia Far responded to Commerce's Section A and C questionnaires. Defendant's Response to the Motions for Judgment Upon the Administrative record filed Chia Far Industrial Factory Co., Ltd. and Allegheny et. al. ("Defendant's Response") at 5. YUSCO responded to the questionnaires on September 28, 2000, and October 30, 2000, and November 6, 2000. Id. On November 30, 2000, the administrative review was amended to include the name of Chia Far. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 65 Fed.Reg. 71,299 (Nov. 30, 2000).

On April 20, 2001, the domestic industry's representatives met with Commerce to express concerns that Chia Far's previously reported U.S. sales through Lucky Medsup ("LM") had been improperly classified as export price³ transactions. Response by Allegheny Ludlum Corp., et al., in Opposition to Motion for Judgment on the Agency Record by Chia Far Industrial Factory Co., Ltd. at 2 ("Allegheny's Response"). In a letter dated May 4, 2001, Commerce memorialized this meeting and reopened the record for two days under 19 C.F.R. § 351.301(c)(2)(I) to receive factual information pertaining to those transaction. See Letter from Edward Tang, Office Director, AD/CVD Enforcement, Office 9, to Jeffery [sic] Beckington, Esq Collier Shannon Scott (May 4, 2001) ("May 4th letter"); DPVA at 10. In its May 4th letter, Commerce also noted that the regulations at 19 C.F.R. § 351.301(c)(1) permit any interested party ten days to submit factual information to rebut, clarify, or correct factual information submitted by any other interested party.

Consistent with the Department's May 4th letter, Allegheny placed on the record factual information concerning Chia Far's affiliation with LM. Included in this submission was certain material for which Allegheny requested double-bracketed treatment under 19 C.F.R. §§ 351.304(a)(2)(ii) and 351.304(b)(2). By letter dated May 17, 2001, Chia Far responded stating as to LM inter alia, "Chia Far and this customer do not have, did not have in the POR, and did not have prior to the POR a principal/agent relationship, either in fact (via an agency contract) or in theory." Letter from John J. Kenkel, DeKieffer & Horgan, to the Hon. Don Evans, Secretary, U.S. Department of Commerce (May 17, 2001) ("Chia Far's May 17 Letter to Commerce"); DPVA at 7.

On May 21 and 22, 2001, the Department apprised Allegheny that Allegheny's May 4th letter was being returned and not accepted for the record due to the Department's conclusion that no clear and compelling need for double-bracketed treatment had been shown by Allegheny. Letter from Rick Johnson, Program Manager, Enforcement Group III, Office 9, to Jeff Beckington, Esq., Collier Shannon Scott (May 21, 2001); Letter from Rick Johnson, Program Manager, Enforcement Group III, Office IX, to Jeff Beckington, Esq., Collier Shannon Scott (May 21, 2001); Allegheny's Response at 3. On May 24, 2001 Allegheny filed an amended version of their May 4th letter, having deleted all of the double bracketed information. They explained in their cover letter that the information was removed in light of its sensitivity and Allegheny's fear that irreparable financial injury might occur if the double bracketed information was compromised. Letter from Jeffrey S. Beckington, Collier Shannon Scott, to Secretary of Commerce, U.S. Department of Commerce (May 24, 2001); Allegheny's Response at 3. On May 25, 2001, Commerce issued a Supplemental Questionnaire to Chia Far, to which the company responded on June 4, 2001. DPVA at 6.

On June 11, 2001, Allegheny responded to Chia Far's June 4, 2001, supplemental questionnaire response. As with the May 4th letter, Commerce concluded there was no clear and compelling need for the double-bracketed treatment for certain information. Thus, Allegheny submitted the redacted version of the June 11th letter to Commerce on June 18, 2001, following a meeting between Allegheny's' counsel and Commerce officials on June 14, 2001. The June 18 letter contained, among other documents, a "Certificate of Sole Agency," dated January 18, 1994, between Chia Far and LM, which was signed by the presidents of each company, certifying that "Lucky Medsup Inc. is working as a sole agent for Chia Far Industrial Factory Co., Ltd. in the West Coast District of The United States of America". Letter from Jeffrey S. Beckington, Collier Shannon Scott, to Secretary of Commerce, U.S. Department of Commerce (June 18, 2001) at Enclosure 1. Chia Far did not respond in writing to Allegheny's June 18 letter.

Commerce issued its Verification Report as to Chia Far on July 11, 2001, and Chia Far submitted preliminary comments on the Verification Report to Commerce on July 26, 2001. On August 8, 2001, Commerce issued its preliminary determination Stainless Steel Sheet and Strip in Coils from Taiwan: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 66 Fed.Reg. 41,509 (Aug. 8, 2001) ("Preliminary Results"). In that notice, Commerce preliminarily rescinded the administrative review with respect to Ta Chen based upon the party's claim that it made no shipments of the subject merchandise during the period of review. Commerce received comments from the parties in September 2001.

After considering comments by the parties, Commerce issued its final determination on February 13, 2002. See Final Results, 67 Fed.Reg. at 6,682. In the Final Results, Commerce rescinded the review with respect to Ta Chen, found zero antidumping margins with respect to YUSCO and Tung Mung, and found a 21.10% margin with respect to Chia Far. Id.

III Arguments

Plaintiff Chia Far claims that the administrative record shows that (1) Chia Far and its customer, LM, were not affiliated; (2) Commerce did not allow Chia Far to meaningfully participate in the administrative review; and (3) Commerce's decision to impute an affiliation was not based on substantial evidence on the record. Chia Far further argues that the application of adverse facts available was unwarranted because it was truthful in all of its responses to Commerce's requests for information and cooperated to the best of its ability. Lastly, Chia Far claims that the 21.10% adverse facts available rate that Commerce applied to it is punitive and erroneous. Thus, it says, Commerce's decision was arbitrary and capricious, not in accordance with the law, and not supported by substantial evidence on the administrative record.

Defendant, the U.S. Government, argues that Chia Far and its largest U.S. customer, LM, are affiliated. Defendant asserts that its application of adverse facts available, its decision to apply adverse inference to all of Chia Far's U.S. sales during the period of review,...