Corus Staal Bv v. U.S., Slip Op. No. 05-85.

• Decision Date: 19 July 2005
• Docket Number: Slip Op. No. 05-85.,Court No. 04-00316.
• Citation: 387 F.Supp.2d 1291
• Parties: CORUS STAAL BV, Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corporation, Defendant-Intervenor.
• Court: U.S. Court of International Trade

387 F.Supp.2d 1291

CORUS STAAL BV, Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corporation, Defendant-Intervenor.

Slip Op. No. 05-85.

Court No. 04-00316.

United States Court of International Trade.

July 19, 2005.

Steptoe & Johnson LLP, Washington, DC, (Richard O. Cunningham, Joel D. Kaufman, Alice A. Kipel, and Troy H. Cribb) for plaintiff.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Claudia Burke), Amanda Blaurock, Office of Chief Counsel for Import Administration, United States Department of Commerce, for defendant, of counsel.

Skadden, Arps, Slate, Meagher & Flom LLP (John J. Mangan) for defendant-intervenor.

OPINION

RESTANI, Chief Judge.

This matter is before the court on the plaintiff Corus Staal BV's ("Corus") motion for judgment on the agency record pursuant to United States Court of International Trade Rule 56.2. At issue are the final results of the first administrative review of an antidumping duty order by the International Trade Administration of the United States Department of Commerce ("Commerce" or "Department") of hot-rolled steel from the Netherlands. See Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 69 Fed.Reg. 33,630 (Dep't Commerce June 16, 2004) (final admin. rev.), as amended by, 69 Fed.Reg. 43, 801 (Dep't Commerce July 22, 2004) (am. final admin. rev.) [hereinafter Final Results].

Corus claims (1) that the agency's use of a "zeroing" methodology is contrary to law, and (2) that its use of the date of entry (instead of the date of sale) for selection of certain export price ("EP") transactions is both contrary to law and unsupported by substantial evidence. Corus claims that zeroing, whereby "negative dumping margins," viz, where the U.S. price is higher than the normal value ("NV"), are set to zero in calculating Corus's weighted average dumping margin (and concomitant assessment rate) do not properly allow non-dumped sales to offset dumped sales, introducing an "improper statistical bias into the calculation." Pl.'s Br. at 2. Corus further claims that this court and the Court of Appeals for the Federal Circuit have held that zeroing is not required by statute, and, therefore, this court may only uphold Commerce's methodology if it is reasonable, which Corus asserts it no longer is, given the WTO Antidumping Agreement, see Pub.L. No. 103-465, 108 Stat. 4809 (1994), and recent WTO decisions.¹

In addition, Corus argues that Commerce erred legally and factually by using the date of entry to select certain EP transactions for review, which it asserts is inconsistent with its use of the date of sale for other EP transactions and all constructed export price ("CEP") sales. Because, allegedly, Commerce offered no reasonable explanation for basing its review in some instances on the date of sale and in others on the date of entry, and offered no explanation for deviating from its prior and exclusive use of the date of sale as a selection criterion in its preliminary results,² Corus asks the court to enter an order remanding this administrative review to Commerce. Corus also asks this court to instruct Commerce, on remand, (1) to re-calculate Corus's dumping margin, cash deposit rate, and assessment rate without resort to zeroing; (2) to use, exclusively, the date of sale to select the transactions to be reviewed during the period of review ("POR") (instead of date of sale for CEP transactions and a combination of date of sale and date of entry for EP transactions); and (3) to refund the amount of estimated antidumping duty deposits collected in excess of the lawful amount.

In response to plaintiff's motion, both the defendant ("Government" or "Commerce"), and the United States Steel Corporation ("U.S.Steel"), the defendant-intervenor, argue that Corus's motion, with respect to zeroing, should be denied because the final results are in accordance with law. Commerce, citing decisions by this court and the Federal Circuit, which have both repeatedly sustained Commerce's methodology, asserts: (1) zeroing is a "reasonable" interpretation of an ambiguous statutory provision regarding dumping margins and weighted average dumping margins, see 19 U.S.C. § 1677(35) (2000); and (2) the WTO reports cited by Corus are legally irrelevant, for numerous reasons. U.S. Steel agrees with Commerce that the Department's use of zeroing was proper, and that Corus's reliance on WTO decisions is misplaced, but also asserts that zeroing is not merely in accordance with law but that its use is actually required by law.

As for the second issue, regarding Commerce's classification of certain U.S. sales as EP sales, Commerce and U.S. Steel disagree. Commerce asks the court to remand the issue to Commerce to re-classify certain EP transactions; U.S. Steel requests that the plaintiff's motion, in all respects, be denied. U.S. Steel asserts that Corus mischaracterized certain sales (those made to its just-in-time ("JIT") customers) as EP sales, and argues that any sales made after importation must, according to the statutory terms, see 19 U.S.C. § 1677a(a) — (b) (2000), be CEP sales. U.S. Steel further argues that the Department properly utilized its standard methodology of using the date of sale during the POR for CEP sales (and for EP-classified sales made after importation, such as CEP sales normally are), and of using the date of entry for ordinary EP sales. As explained below, the court concludes that remand is not appropriate and the final results of the administrative review are sustained.

PROCEDURAL HISTORY

This appeal arises out of the first administrative review of an antidumping duty order regarding hot-rolled steel from the Netherlands. U.S. Steel, a domestic producer of hot-rolled steel, and a defendant-intervenor in these proceedings, was both a petitioner in the investigation that resulted in Commerce's antidumping duty order and an active participant in the administrative proceedings below. Corus, the plaintiff, is a producer of hot-rolled steel in the Netherlands and brought this appeal to challenge two aspects of the final results that pertain to the calculation methodology Commerce used to determine the 4.80% weighted average dumping margin applicable to Corus: (1) zeroing; and (2) the change in selection criterion from date of sale, to date of sale for all CEP transactions and certain EP transactions and date of entry for the remaining post-importation EP sales. See Final Results, 69 Fed.Reg. at 33, 631 and accompanying Issues & Decision Mem. [hereinafter "Issues Mem. to Steel from the Netherlands"], at cmts. 4, 10, as amended by, 69 Fed.Reg. at 43,802.

On November 29, 2001, Commerce published the antidumping duty order on certain hot-rolled carbon steel flat products from the Netherlands. See Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 66 Fed.Reg. 59, 565 (Dep't Commerce Nov. 29, 2001) (antidumping duty order). On November 1, 2002, Commerce published notice of the opportunity to request an administrative review of certain hot-rolled carbon steel flat products from the Netherlands, covering the period from May 3, 2001, to October 31, 2002. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 67 Fed.Reg. 66,612 (Dep't Commerce Nov. 1, 2002) (opportunity to req. admin. rev.).

On November 26 and 27, 2002,³ a group of U.S. steel companies, including U.S. Steel, pursuant to 19 C.F.R. 351.213(b)(1) (2004),⁴ requested that Commerce, in accordance with 19 U.S.C. § 1675 (2000),⁵ conduct an administrative review of Corus's sales of the subject merchandise. On December 26, 2002, Commerce published a notice of initiation of this antidumping duty administrative review, covering the period from May 3, 2001, through October 31, 2002. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 67 Fed.Reg. 78,772 (Dep't Commerce Dec. 26, 2002). On January 9, 2003, Commerce issued its antidumping duty questionnaire to Corus — an ongoing question and response process that lasted from then until May 19, 2003, when Corus responded to Commerce's third supplemental questionnaire. See Prelim. Results, 68 Fed.Reg. at 68,342. Commerce then verified Corus's submitted data and requested Corus to report entered value data. See id. Also, as a result of the court's decision in Corus Staal BV v. United States, 283 F.Supp.2d 1357, 1358 (CIT 2003), the Department will not assess duties on subject merchandise that entered between October, 30, 2001, and November 28, 2001, inclusive. See also Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 68 Fed.Reg. 60,912, 60,912 (Dep't Commerce Oct. 24, 2003) (final ct. decision & suspension of liquidation).

On December 8, 2003, Commerce published its preliminary results from the administrative review of the antidumping duty order on hot-rolled steel from the Netherlands. See Prelim. Results, 68 Fed.Reg. at 68,341. After issuance of these preliminary results, the Department invited comments; and in response, Corus, U.S. Steel, and Nucor filed case briefs on January 14, 2004, and submitted rebuttal briefs on January 23, 2004. See Final Results, 69 Fed.Reg. at 33,630. After Corus timely-filed a ministerial error allegation, in accordance with 19 C.F.R. 351.224(c)(2) (2004),⁶ the Department revised its antidumping duty margin for Corus, decreasing it from the original 4.94% assessment to the currently contested 4.80% ad valorem. See Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 69 Fed.Reg. 43,801, 43,801 — 02 (Dep't Commerce July 22, 2004) (am. final admin. rev.). Corus timely commenced this action under 19 U.S.C. § 1516a(a)(2)(A)(i),⁷ (B)(iii)⁸ (2000), and 28 U.S.C. § 1581(c) (2000).

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2) and 28 ...