Sidenor Indus. Sl v. U.S.

• Decision Date: 30 October 2009
• Docket Number: Slip Op. 09-127. Court No. 07-00307.
• Citation: 664 F.Supp.2d 1349
• Parties: SIDENOR INDUSTRIAL SL, Plaintiff, v. UNITED STATES, Defendant, and Carpenter Technology Corp., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

Page 1349

664 F.Supp.2d 1349

SIDENOR INDUSTRIAL SL, Plaintiff, v. UNITED STATES, Defendant, and Carpenter Technology Corp., et al., Defendant-Intervenors.

Slip Op. 09-127. Court No. 07-00307.

United States Court of International Trade.

October 30, 2009.

COPYRIGHT MATERIAL OMITTED

Riggle & Craven (David J. Craven and David A. Riggle), Washington, DC, for Plaintiff Sidenor Industrial SL.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (L. Misha Preheim); and Deborah King, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for Defendant United States.

Kelley Drye & Warren LLP (Mary T. Staley and Grace W. Kim), Washington, DC, for Defendant-Intervenors Carpenter Technology Corporation, Electralloy Corporation, a Division of G.O. Carlson, Inc., and Valbruna Slater Stainless, Inc.

OPINION

WALLACH, Judge:

I

INTRODUCTION

This action arises out of the administrative review of an antidumping duty order conducted by the United States Department of Commerce ("Commerce"). Plaintiff Sidenor Industrial SL ("Sidenor") challenges Commerce's decision to apply adverse facts available ("AFA") to calculate Sidenor's dumping margin. Alternatively, Sidenor challenges the AFA dumping margin selected by Commerce. In addition, Sidenor argues that Commerce's denial of its request to report its cost data on a fiscal year basis, rather than for the period of review, was an abuse of discretion.

This court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Because Commerce's decisions are supported by substantial evidence and otherwise in accordance with law, Commerce's determination in Stainless Steel Bar from Spain: Final Results of Antidumping Duty Administrative Review, 72 Fed.Reg. 42,395 (August 2, 2007) ("Final Results") is affirmed.

II

BACKGROUND

Commerce imposed an antidumping duty order on stainless steel bar from Spain in 1995. Amended Final Determination and Antidumping Duty Order: Stainless Steel Bar from Spain, 60 Fed. Reg. 11,656 (March 2, 1995) ("AD Order"). In March 2006, Commerce published notice of the opportunity to request an administrative review of the AD Order for the period of review beginning March 1, 2005 and ending February 28, 2006. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 71 Fed.Reg. 10,642 (March 2, 2006). In response to this notice, Sidenor requested that Commerce conduct an administrative review of its U.S. sales of stainless steel bar. Letter from David J. Craven, Riggle & Craven, to Carlos M. Gutierrez, Secretary of Commerce (March 28, 2006), Public Record ("P.R.") 1. Commerce thereafter initiated an administrative review of Sidenor's sales of stainless steel bar for the period of review. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 71 Fed. Reg. 25,145 (April 28, 2006), P.R. 2.

Commerce sent Sections A, B, and C of its antidumping duty questionnaire to Sidenor on May 5, 2006.¹ Sidenor responded with a letter dated May 19, 2006; in the letter, Sidenor requested that Commerce clarify certain aspects of the questionnaire. Letter from David J. Craven, Riggle & Craven, to Carlos M. Gutierrez, Secretary of Commerce (May 19, 2006), P.R. 8. Sidenor also requested authorization from Commerce to report its cost of production and constructed value data for its 2005 fiscal year rather than for the period of review (March 1, 2005 through February 28, 2006). Id. In responding to Sidenor's requests, Commerce expressed its willingness to consider authorizing Sidenor to report its cost data on the basis of the 2005 fiscal year, provided that Sidenor demonstrate that such a shift in the cost reporting would not distort costs for the period of review. Letter from Laurie Parkhill, Office Director, Department of Commerce, to David J. Craven, Riggle & Craven (May 30, 2006), P.R. 12. Commerce requested that Sidenor answer four specific questions, the answers to which would assist Commerce in determining whether a shift in the cost reporting period would lead to distortion in the data. Id. Sidenor "did not provide the specific information" that Commerce requested. Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, Re: Issues and Decision Memorandum for the Antidumping Duty Administrative Review of Stainless Steel Bar from Spain for the Period of Review March 1, 2005, through February 28, 2006 (July 26, 2007), P.R. 84 ("Final Decision Memo"), 2.

Subsequently, Commerce published the preliminary results of this administrative review. Stainless Steel Bar from Spain: Preliminary Results of Antidumping Duty Administrative Review, 72 Fed.Reg. 14,522 (March 28, 2007) ("Preliminary Results"). In the Preliminary Results, Commerce found that the statutory criteria for application of an AFA rate to Sidenor were met. Id. at 14,522-24. Commerce selected an AFA rate of 62.85%, the highest rate established by Commerce in the initial less-than-fair-value ("LTFV") investigation. Commerce determined that this rate remained both reliable and relevant. Id. at 14,524.

Sidenor filed a case brief challenging Commerce's conclusions with respect to its questionnaire responses and Commerce's application of total adverse facts available. Commerce rejected Sidenor's arguments. See Final Decision Memo. Sidenor was assigned a final AFA rate of 62.85%. Final Results at 42,395.

III

STANDARD OF REVIEW

The court will hold unlawful a determination by Commerce resulting from an administrative review of an antidumping duty order if 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)(i); see 19 U.S.C. § 1516a(a)(2)(B)(iii).

A determination is supported by substantial evidence if the record contains "evidence that a reasonable mind might accept as adequate to support a conclusion." Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed.Cir.2007) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). While the court must consider contradictory evidence, "the substantial evidence test does not require that there be an absence of evidence detracting from the agency's conclusion, nor is there an absence of substantial evidence simply because the reviewing court would have reached a different conclusion based on the same record." Id. (citing Universal Camera Corp., 340 U.S. at 487-88, 71 S.Ct. 456); see also Am. Silicon Techs. v. United States, 261 F.3d 1371, 1375-76 (Fed.Cir.2001); U.S. Steel Group v. United States, 96 F.3d 1352, 1356-57 (Fed.Cir.1996).

To determine whether Commerce's interpretation and application of the antidumping statute at issue is otherwise "in accordance with law," the court must conduct the two-step analysis articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step of the Chevron analysis, the court must ascertain "`whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'" Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 (Fed. Cir.2007) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778).

The court reaches the second step of the Chevron analysis only "`if the statute is silent or ambiguous with respect to the specific issue.'" Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Under this second step, the court must evaluate whether Commerce's interpretation "is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The agency's construction need not be the only reasonable interpretation or even the most reasonable interpretation. See Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978) (citations omitted). The court must defer to Commerce's reasonable interpretation of a statute even if it might have adopted another interpretation had the question first arisen in a judicial proceeding. Id. (citations omitted).

IV

DISCUSSION

Sidenor challenges three decisions made by Commerce during the course of the administrative review. First, Sidenor argues that Commerce's denial of its request to report its cost data on a fiscal year basis, rather than for the period of review, was an abuse of discretion. Second, Sidenor contests Commerce's decision to apply adverse facts available to calculate its dumping margin. Third, Sidenor argues that even if Commerce's decision to calculate its dumping margin on the basis of adverse facts available is affirmed, the margin selected by Commerce should be lower. Each of Commerce's determinations survives these challenges. Commerce reasonably exercised its discretion to deny Sidenor's request to submit information in a form different than that originally requested. Commerce's decision to calculate Sidenor's dumping margin on the basis of adverse facts available is supported by substantial evidence and in accordance with law. The AFA rate selected by Commerce is supported by substantial evidence and in accordance with law.

A Commerce Reasonably Exercised Its Discretion To Deny Sidenor's Request To Submit Information In A Form Different Than That Originally Requested

Sidenor argues that Commerce's denial of its request to report its cost data on a fiscal year basis, rather than for the period of review, was an abuse of discretion. See Motion for Judgment on the Agency Record Submitted Pursuant to Rule 56.2 of the Rules of the U.S. Court of International Trade ("Plaintiff's Motion") at 13...