Helmerich & Payne, Inc. v. U.S.

• Decision Date: 17 September 1998
• Docket Number: Court No. 97-10-01732.,Slip Op. 98-134.
• Citation: 24 F.Supp.2d 304
• Parties: HELMERICH & PAYNE, INC., Plaintiff, v. UNITED STATES, Defendant, and U.S. Steel Group, A Unit of USX Corp., Defendant-Intervenor.
• Court: U.S. Court of International Trade

24 F.Supp.2d 304

HELMERICH & PAYNE, INC., Plaintiff, v. UNITED STATES, Defendant and U.S. Steel Group, A Unit of USX Corp., Defendant-Intervenor.

Slip Op. 98-134.

Court No. 97-10-01732.

United States Court of International Trade.

September 17, 1998.

COPYRIGHT MATERIAL OMITTED

Barnes, Richardson & Colburn (Brian F. Walsh), for Plaintiff.

Frank W. Hunger, Assistant Attorney General of the United States, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Randi Rimerman Serota, Attorney; of counsel, Myles S. Getlan, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for Defendant.

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

OPINION

POGUE, Judge.

This matter is before the Court on the motion of Plaintiff, Helmerich & Payne ("Plaintiff"), for judgment upon the agency record pursuant to USCIT R. 56.2. Plaintiff challenges certain aspects of the U.S. Department of Commerce's ("Commerce" or the "Department") final results of the administrative review in Oil Country Tubular Goods From Japan, 62 Fed.Reg. 48,594 (Dep't Commerce 1997) (final results admin. review) ("Final Results"). Defendant-Intervenor, U.S. Steel Group, A Unit of USX Corp. ("U.S. Steel"), opposes Plaintiff's motion for judgment upon the agency record.

This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994) and 19 U.S.C. § 1516a(b)(1)(B)(1994).

Background

NKK Corporation ("NKK"), an unaffiliated Japanese manufacturer, sold certain oil country tubular goods ("OCTG") to Mitsubishi Corporation, a Japanese trading company. P.R. Doc. No. 26, at 1. Mitsubishi Corporation sold the subject merchandise to MC Tubular Products, Inc., which, in turn, sold the merchandise to Plaintiff. Id. Plaintiff entered the subject merchandise into a foreign trade zone ("FTZ"). Id. Subsequently, on February 2, 1995, Commerce made a preliminary determination that OCTG from Japan were being, or likely to be, sold in the United States at less than fair value. Oil Country Tubular Goods From Japan, 60 Fed.Reg. 6,506 (Dep't Commerce 1995)(prelim.det.). On August 11, 1995, after all the sales occurred, Commerce published an antidumping duty order on OCTG from Japan.¹ Oil Country Tubular Goods From Japan, 60 Fed.Reg. 41,058 (Dep't Commerce 1995) (antidumping duty order) ("Order"). Following the issuance of the Order, Plaintiff withdrew the subject merchandise from the foreign trade zone and entered it into the United States. P.R. Doc. No. 51, at 1-2. Pursuant to the Order, Customs required Plaintiff to deposit antidumping duties on the merchandise upon entry.

On August 12, 1996, Commerce published a notice of "Opportunity to Request an Administrative Review" of the Order for the 1995-96 review period. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 61 Fed.Reg. 41,768, (Dep't Commerce 1996) (opp. request admin. review). The notice indicated that if the Department did not receive "a request for a review of entries covered by [the] order," Commerce would instruct the Customs Service to assess duties on those entries "at a rate equal to the cash deposit of ... estimated antidumping ... duties required on those entries at the time of entry...." Id. at 41,771.

Plaintiff requested that Commerce conduct an administrative review of "sales of merchandise imported by or withdrawn from a foreign trade zone by Helmerich & Payne during the reference period [August 11, 1995 through July 31, 1996] produced by NKK Corporation of Japan." P.R. Doc. No. 2. On September 4, 1996, Plaintiff confirmed that the company understood "a full review of sales made during the relevant period by NKK" would result from Plaintiff's request for an administrative review. P.R. Doc. No. 4.

On September 19, 1996, Commerce sent an antidumping questionnaire to NKK stating the Department was "examining sales, entries or shipments, as specified in the enclosed questionnaire, during the period August 1, 1995, through July 31, 1996." P.R. Doc. No. 8, at 1. Commerce requested that the company submit information allowing the Department to determine whether the subject merchandise is being, or likely to be, sold in the United States at less than its fair value. Specifically, the questionnaire instructed NKK to "[r]eport each U.S. sale of merchandise entered for consumption during the [period of review], except: (1) for EP sales, if you do not know the entry dates, report each transaction involving merchandise shipped during the [review period]. ..."² Id. at 58. Commerce warned NKK that if the company did not submit the relevant information, the Department may resort to facts available. Id. at 1.

NKK responded to the questionnaire with a letter stating that the company did not sell or ship merchandise to the United States during the period of review ("POR"). P.R. Doc. No. 26, at 1. NKK attached documents demonstrating that the company's sales of the subject merchandise to Mitsubishi Corporation occurred prior to the issuance of the Order. Id. at 2. The letter indicated, however, that NKK was aware of the fact that Helmerich & Payne had entered OCTG manufactured by NKK during the POR. Id. at 1.

On November 4, 1996, Plaintiff submitted documentation demonstrating that each entry of its merchandise could be traced to the NKK sales. P.R. Doc. No. 28, at 2. Plaintiff offered two alternative dates as the "date of sale": the date of NKK's invoice to Mitsubishi Corporation or the date of the purchase agreement between Helmerich & Payne and MC Tubular. Id. at 2-3. Both of these dates occurred prior to the date of the Order. Id. at 3. Plaintiff maintained that because the date of sale on the subject merchandise took place prior to the effective date of the Order, the merchandise was not subject to the assessment of antidumping duties. Id.

On December 5, 1996, Commerce sent a letter to NKK stating that the company's letter "did not respond to most of the Department's questionnaire." P.R. Doc. No. 39. The Department noted that "entries of subject merchandise produced by NKK are subject to the first administrative review of this order." Id. Commerce requested that NKK "respond in full" by December 19, 1996 or the Department would use facts available. Id.

On December 16, 1996, Plaintiff reiterated its position that the date of sale was the only determination that Commerce needed to make as the subject sales occurred prior to the effective date of the Order. P.R. Doc. No. 40. Plaintiff maintained that NKK's response of October 30, 1996 and its submission of November 4, 1996 "provide sufficient information to establish the date of sale for the subject merchandise as prior to the effective date of the order." Id.

On May 12, 1997, Commerce issued its preliminary results for the first administrative review of the present proceeding. Oil Country Tubular Goods From Japan, 62 Fed.Reg. 25,889 (Dep't Commerce 1997)(notice partial rescission antidumping duty admin. review and prelim. results antidumping admin. review). Commerce applied facts available because NKK did not submit a complete response to the Department's questionnaire. Commerce explained, "[i]nformation on the record ... indicates that there were entries during the POR of subject merchandise produced by NKK ... [T]hese entries are subject to review, regardless of NKK's assertions regarding sale and shipment dates." Id. at 25,890. Commerce found a 44.20 percent margin for NKK.³

On September 16, 1997, Commerce reiterated its preliminary finding in the Final Results. 62 Fed.Reg. at 48,594.

Discussion

I. Use of Facts Available

The antidumping duty statute mandates that Commerce use facts otherwise available where, among other reasons, an interested party "withholds information that has been requested by [Commerce]." 19 U.S.C. 1677e(a)(2)(A)(1994). Once Commerce has determined to use facts available, section 1677e(b) permits an adverse inference if the Department can find that the "party has failed to cooperate by not acting to the best of its ability to comply with a request for information." 19 U.S.C. § 1677e(b). Such an adverse inference may permit reliance on information derived from the petition, the final determination, a previous review, or any other information placed on the record. Id.

The relevant case law requires that Commerce must "fairly request" the data prior to resorting to any secondary information.⁴ See Koyo Seiko Co. v. United States, 92 F.3d 1162, 1165 (Fed.Cir.1996). Once Commerce has done so, it possesses the "discretion to determine whether a respondent has complied with an information request." Daido Corp. v. United States, 19 CIT 853, 861, 893 F.Supp. 43, 49-50 (1995) (citing S.Rep. No. 249, 96th Cong., 1st Sess. at 98 (1979); H.R.Rep. No. 317, 96th Cong., 1st Sess. 77 (1979)).

In the questionnaire sent to NKK on September 19, 1996, Commerce requested that the company submit information allowing the Department to determine whether the subject merchandise is being, or likely to be, sold in the United States at less than its fair value. Commerce requested that NKK respond to

sections A (General Information), B (Sales in the Home Market or to a Third Country), and C (Sales to the United States). If after examining sections A and C of the questionnaire you conclude that your company and its affiliates did not have any U.S. sales or shipments during the [POR], please submit a statement to that effect, following the data submission requirements specified in the general instructions.

P.R. Doc. No. 8, at 1. Commerce warned NKK that if the company did not submit the relevant information the Department "may proceed on the basis of facts available." Id. Furthermore, on December 5, 1996, Commerce sent a second request for information to NKK, indicating that the documents submitted by the company regarding sales...