Empresa Nacional Siderurgica, SA v. US

• Decision Date: 06 March 1995
• Docket Number: No. 93-09-00630-AD. Slip Op. No. 95-33.,93-09-00630-AD. Slip Op. No. 95-33.
• Citation: 880 F. Supp. 876
• Parties: EMPRESA NACIONAL SIDERÚRGICA, S.A. and the Government of Spain, Plaintiff, v. UNITED STATES, Defendant, Bethlehem Steel Corp., Geneva Steel, Gulf States Steel Inc. of Alabama, Inland Steel Industries, Inc., Lukens Steel Co., Sharon Steel Corp., and U.S. Steel Group a Unit of USX Corp., Defendant-Intervenors.
• Court: U.S. Court of International Trade

880 F. Supp. 876

EMPRESA NACIONAL SIDERÚRGICA, S.A. and the Government of Spain, Plaintiff, v. UNITED STATES, Defendant Bethlehem Steel Corp., Geneva Steel, Gulf States Steel Inc. of Alabama, Inland Steel Industries, Inc., Lukens Steel Co., Sharon Steel Corp., and U.S. Steel Group a Unit of USX Corp., Defendant-Intervenors.

No. 93-09-00630-AD. Slip Op. No. 95-33.

United States Court of International Trade.

March 6, 1995.

George V. Egge, Jr., P.C., Washington, DC (George V. Egge, Jr.), for plaintiff.

Ackerson & Bishop Chartered, Washington, DC (Frederick P. Waite, M. Roy Goldberg, and Stewart A. Block) for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Velta A. Melnbrencis), Stephen J. Powell and Thomas H. Fine, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.

Dewey Ballantine, Washington, DC (Alan Wm. Wolff, Michael H. Stein, Scott L. Forseth, and Linda C. Menghaetti), for defendant-intervenors.

Skadden, Arps, Slate, Meagher & Flom, Washington, DC (Robert E. Lighthizer and John J. Mangan), for defendant-intervenors.

MEMORANDUM OPINION

DiCARLO, Chief Judge:

Plaintiff, Empresa Nacional Siderúrgica, S.A. (ENSIDESA), moves for judgment upon an agency record pursuant to USCIT R. 56.2, challenging the final determination of the United States Department of Commerce that imports of certain cut-to-length carbon steel plate from Spain are being sold in the United States at less than fair value. Final Determinations of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Spain, 58 Fed.Reg. 37,211 (Dep't Comm.1993). This court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

ENSIDESA concedes that Commerce was required to apply best information available (BIA) for data which ENSIDESA did not submit. See 19 U.S.C. § 1677e (1988); 19 C.F.R. § 353.37 (1994). However, ENSIDESA challenges Commerce's choice of BIA. According to plaintiff, Commerce erred by (1) refusing to grant a two-week extension to ENSIDESA to allow them additional time to complete the Cost of Production (COP) and Constructed Value (CV) section of the Antidumping Questionnaire (Part "D"); and, (2) designating ENSIDESA an "uncooperative respondent" when ENSIDESA was unable to submit a response in the time allotted, requiring the selection of the margin calculated in the preliminary determination as BIA.

BACKGROUND

In response to plaintiffs' petition, Commerce initiated an antidumping investigation of cold-rolled steel and cut-to-length steel plate imports from Spain. See Initiation of Antidumping Duty Investigations and Postponement of Preliminary Determinations: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products, and Certain Cut-to-Length Carbon Steel Plate From Various Countries, 57 Fed.Reg. 33,488 (Dep't Comm. 1992). ENSIDESA was the only Spanish company being investigated. The period of investigation was January 1, 1992 to June 30, 1992. The range of dumping margins alleged in the petition varied from 18.76 percent to 72.74 percent. (Pub.Doc. 2, Petition, at 14.)

Commerce initiated an investigation to determine whether ENSIDESA was selling its products in the home market below cost of production, as defined by 19 U.S.C. § 1677b(b) (1988). On January 7, 1993, Commerce transmitted Section D of the Antidumping Questionnaire to ENSIDESA, requesting COP and CV information. Responses were due no later than February 8, 1993.

On January 26, 1993, Commerce reached its preliminary determination. Notice of Preliminary Determinations of Sales at Less Than Fair Value and Postponement of Final Determinations: Certain Cold-Rolled Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Spain, 58 Fed.Reg. 7120 (Dep't Comm.1993). The preliminary margins were 41.81 percent ad valorem for cold-rolled steel and 105.61 percent ad valorem for cut-to-length steel plate. Id. at 7121-22.

On February 5, 1993, ENSIDESA requested a four-week extension in which to respond to the COP/CV Questionnaire. (Pub.Doc. 104, Letter from Counsel for ENSIDESA to Commerce, Feb. 5, 1993, at 1.) Commerce granted an extension, but only until February 16, 1993. (Pub.Doc. 105, Letter from Commerce to Counsel for ENSIDESA, Feb. 5, 1993.) ENSIDESA then requested an additional two week extension. Commerce denied the request, and informed ENSIDESA that if they failed to provide the information by February 16, 1993, Commerce "may have to" resort to BIA. (Pub.Doc. 111, Letter from Commerce to Counsel for ENSIDESA, Feb. 11, 1993.)

On the day the responses were due, ENSIDESA informed Commerce that it would not respond to Section D. (Pub.Doc. 114, Letter from Counsel for ENSIDESA to Commerce, Feb. 16, 1993, at 1.) Commerce consequently designated ENSIDESA uncooperative. Final Determinations at 37,212. Commerce rejected ENSIDESA's responses to Sections A, B, and C, contending the information was rendered useless by the absence of the COP/CV responses in Section D. Id. Commerce applied, as BIA, the margin calculated in the Preliminary Determination — 105.61 percent ad valorem — for cut-to-length steel plate, and used the highest margin alleged in the petition — 43.12 percent ad valorem — for cold-rolled steel. Final Determinations, 58 Fed.Reg. at 37,212-13.

On August 9, 1993, the United States International Trade Commission determined, pursuant to 19 U.S.C. § 1673d(b) (1988), that imports of carbon steel plate from Spain were causing or threatened to cause material injury, but that cold-rolled carbon steel flat products were not. Certain Flat-Rolled Carbon Steel Products From Argentina, Australia, Austria, Belgium, Brazil, Canada, Finland, France, Germany, Italy, Japan, Korea, Mexico, the Netherlands, New Zealand, Poland, Romania, Spain, Sweden, and the United Kingdom, 58 Fed.Reg. 43,905, 43,905 (Dep't Comm.1993). The resulting antidumping duty order therefore only covered cut-to-length steel plate. Antidumping Duty Order: Certain Cut-to-Length Carbon Steel Plate from Spain, 58 Fed.Reg. 44,167, 44,167 (Dep't Comm.1993).

DISCUSSION

This court shall uphold Commerce's final determination in an antidumping duty investigation unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). It "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (citations omitted).

1. Denial of ENSIDESA'S Request for an Extension of Time

ENSIDESA argues Commerce erred in denying ENSIDESA's request for a second extension of two weeks. According to ENSIDESA, it had justifiable and compelling reasons for requesting the extension. First, ENSIDESA argues, the steel industry in Spain was undergoing major restructuring and the resulting attrition of personnel impaired ENSIDESA's ability to respond to the COP/CV Questionnaire. Second, ENSIDESA claims it had substantial resources already committed to the concurrent countervailing duty investigation. During the two-week period immediately prior to the deadline for submission of the COP/CV Questionnaire, ENSIDESA's key personnel were preparing for Commerce's verification visit in the concurrent investigation. (Pls.' Mem.Supp.J.Agency.R. at 7-9.)

ENSIDESA further asserts Commerce would not have suffered substantial hardship if the requested extension had been granted. Commerce still would have had 113 days to complete the investigation. The remaining tasks for Commerce were to conduct verification, hold a public hearing, and reach a final determination.

In support of its argument, ENSIDESA cites a number of cases wherein courts held an agency's refusal to grant a requested delay to be an abuse of the agency's discretion. See New York Shipping Ass'n v. Federal Maritime Comm'n, 628 F.2d 253, 260 (D.C.Cir.1980) (reversing Commission's determination after finding that Commission failed to grant plaintiff extensions already granted to similarly situated companies); Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir.1975) (holding failure to grant extension to enable party to obtain counsel violates procedural due process); Texas v. EPA, 499 F.2d 289, 317-18 (5th Cir.1974), cert. denied, 427 U.S. 905, 96 S.Ct. 3191, 49 L.Ed.2d 1199 (1976) (holding it arbitrary and capricious for agency to fail to grant a region an extension of time to meet federal standards). Unlike in an antidumping investigation context, however, none of the cited cases involve a situation where the agency was bound by statutory time constraints.

Congress has imposed strict statutory deadlines upon Commerce in antidumping investigations. See 19 U.S.C. § 1673d(a) (1988). The statute mandates that Commerce issue its final determination within 75 days of the preliminary determination. 19 U.S.C. 1673d(a)(1). This deadline may not be extended beyond 135 days from the date of the preliminary determination. 19 U.S.C. § 1673d(a)(2). In this investigation, Commerce had 135 days in which to issue its final determination. See Preliminary Determinations, 58 Fed.Reg. at 7120.

To enable Commerce to meet its statutory deadline, Section 353.31(b)(2), title 19,...