Union Steel v. U.S.

• Decision Date: 19 May 2009
• Docket Number: Slip Op. 09-47. Court No. 09-00130.
• Citation: 617 F.Supp.2d 1373
• Parties: UNION STEEL, Plaintiff, and Whirlpool Corporation, Plaintiff-Intervenor, v. UNITED STATES, Defendant, and United States Steel Corporation and Nucor Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

617 F.Supp.2d 1373

UNION STEEL, Plaintiff, and Whirlpool Corporation, Plaintiff-Intervenor, v. UNITED STATES, Defendant, and United States Steel Corporation and Nucor Corporation, Defendant-Intervenors.

Slip Op. 09-47. Court No. 09-00130.

United States Court of International Trade.

May 19, 2009.

Troutman Sanders LLP (Donald B. Cameron, Julie C. Mendoza, Jeffrey S. Grimson, R. Will Planert, Brady W. Mills, and Mary S. Hodgins) for plaintiff.

Drinker Biddle & Reath, LLP (William R. Rucker and Michelle L. Welsh) for plaintiff-intervenor.

Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (Claudia Burke and L. Misha Preheim); Daniel J. Calhoun, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Skadden Arps Slate Meagher & Flom, LLP (Jeffrey D. Gerrish, M. Allison Guagliardo, and Robert E. Lighthizer) for defendant-intervenor United States Steel Corporation.

Wiley Rein, LLP (Timothy C. Brightbill, Robert E. DeFrancesco, III, and Alan H. Price) for defendant-intervenor Nucor Corporation.

Before: Timothy C. Stanceu, Judge.

OPINION

STANCEU, Judge:

Plaintiff Union Steel brought this action under 19 U.S.C. § 1516a (2006) to contest a determination (the "Final Results") that the International Trade Administration, United States Department of Commerce ("Commerce" or the "Department") issued in an administrative review of an anti-dumping duty order on imports of certain corrosion-resistant carbon steel flat products ("subject merchandise") from the Republic of Korea. The Final Results pertain to imports of the subject merchandise made during the period of August 1, 2006 through July 31, 2007 (the "period of review"). Whirlpool Corporation ("Whirlpool"), a U.S. importer of the subject merchandise, moved to intervene as a matter of right and sought a temporary restraining order ("TRO") and a preliminary injunction against liquidation of its entries subject to the review. Defendant United States opposed Whirlpool's motion to intervene, arguing that Whirlpool lacks standing under the relevant statutory provision because it was not a party to the underlying administrative review proceeding. On May 6, 2009, the court accorded Whirlpool conditional status as plaintiff-intervenor in order to conduct expedited proceedings preparatory to ruling on Whirlpool's motions and granted the TRO application. On May 13, 2009, the court granted, with an opinion to follow, the motions of Whirlpool to intervene as of right, to obtain a preliminary injunction, and to file replies to defendant's oppositions to its motions. In this Opinion, the court sets forth its reasoning for concluding that Whirlpool is entitled to intervene as of right and that Whirlpool qualifies for a preliminary injunction enjoining liquidation of its entries of subject merchandise that are subject to the review.

I. BACKGROUND

On August 2, 2007, Commerce notified interested parties of the opportunity to request a review of the antidumping duty order on the subject merchandise. Anti-dumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Admin. Review, 72 Fed.Reg. 42,383, 42,383 (Aug. 2, 2007) (Admin.R.Doc. No. 2). Whirlpool timely filed a submission requesting an administrative review of Pohang Iron and Steel Co., Ltd. ("POSCO"), Union Steel, and LG Chem America, Inc. Letter from Drinker Biddle Gardner Carton to Sec'y of Commerce 1-2 (Aug. 30, 2007) (Admin.R.Doc. No. 4) ("Whirlpool's Letter Requesting Review"). In response to various requests, Commerce initiated the review, which is the fourteenth administrative review of the antidumping duty order. Initiation of Antidumping and Countervailing Duty Admin. Reviews and Requests for Revocation in Part, 72 Fed.Reg. 54,428 (Sept. 25, 2007) (Admin.R.Doc. No. 12); see Certain Corrosion-Resistant Carbon Steel Flat Prods. from the Republic of Korea: Notice of Final Results of the Fourteenth Admin. Review and Partial Rescission, 74 Fed.Reg. 11,082 (Mar. 16, 2009) (Admin.R.Doc. No. 192) ("Final Results").

Relevant to the question of whether Whirlpool was a party to the administrative review proceeding is Whirlpool's filing of two additional submissions with Commerce. In one of the submissions (the "APO Application"), Whirlpool requested access to business proprietary information according to Commerce's procedures for administering an administrative protective order ("APO"). Letter from Drinker Biddle Gardner Carton to Sec'y of Commerce 1 (Oct. 31, 2007) (Admin.R.Doc. No. 26) ("Whirlpool's APO Application"). The other submission, dated November 9, 2007, responded to the Department's November 7, 2007 memorandum requesting that interested parties comment on data that Commerce would use to select respondents for review. See Letter from Drinker Biddle Gardner Carton to Sec'y of Commerce 1 (Nov. 9, 2007) (Admin.R.Doc. No. 28) ("Whirlpool's Submission on Resp't Selection"); see Mem. on Customs and Border Patrol Data for Selection of Resp'ts for Individual Review 1-2 (Nov. 7, 2007) (Admin.R.Doc. No. 27) ("Dep't's Request for Comments on Resp't Selection"). With its response to the Department's memorandum, Whirlpool included an entry summary form (Customs Form 7501) listing Whirlpool as an importer of record for subject merchandise. Whirlpool's Submission on Resp't Selection 1-3. Commerce later issued a memorandum announcing its selection of respondents for the review, in which it stated that Commerce had not selected Whirlpool as a respondent and cited, in a footnote, Whirlpool's November 9, 2007 submission. Mem. on Selection of Resp'ts for Individual Review 5 & n. 5 (Dec. 6, 2007) (Admin.R.Doc. No. 45) ("Dep't's Resp't Selection Mem.") (citing, in a footnote, Whirlpool's Submission on Resp't Selection). Upon completing the review of the respondents it had selected, Commerce issued the Final Results on March 16, 2009. See Final Results, 74 Fed. Reg. 11,082.

Plaintiff Union Steel brings three claims in its complaint contesting the Final Results. It claims, first, that Commerce violated the antidumping statute when, in calculating a weighted-average dumping margin, Commerce regarded the sales that plaintiff made in the United States at prices above normal value to have dumping margins of "zero." See Compl. ¶¶ 5, 8-15. Plaintiff argues, in support of this claim, that Commerce erred in continuing to apply its "zeroing" practice in antidumping administrative reviews after having abandoned the practice in antidumping investigations. See id. ¶ 15. Second, plaintiff claims that Commerce erred in its use of certain model match criteria, arguing that "Commerce used model match criteria that failed to account for the significant differences in cost, price, physical characteristics, end use applications, and production processes between painted products and laminated products." Id. ¶ 17. Finally, Union Steel "contests Commerce's change of practice regarding the calculation of the general and administrative (`G & A') and interest expense ratios and Commerce's use of Plaintiff's 2007 financial statements to calculate these ratios." Id. ¶ 7. With respect to all three claims, Union Steel maintains that the Department's errors caused a significant overstatement of the weighted-average dumping margin (and the resulting assessment rate) determined by Commerce for plaintiff's sales and entries during the period of review. Id. ¶¶ 5-7.

On April 15, 2009, Whirlpool filed its motion to intervene as of right on the side of plaintiff Union Steel. Mot. to Intervene as of Right 1 ("Whirlpool's Intervention Mot."). Whirlpool argues that it has a stake in this judicial review proceeding because its supplier of the subject merchandise, LG Chem America, Inc., received a weighted-average antidumping duty margin that was based, in part, on the margin Commerce assigned to Union Steel, which Union Steel is challenging before the court. Id. at 2. On the same date, April 15, 2009, Whirlpool moved for a TRO and a preliminary injunction to prevent liquidation of its entries of subject merchandise imported during the period of review. Mot. for TRO and Prelim. Inj. 1 ("Whirlpool's TRO and Prelim. Inj. Mot."). On May 4, 2009, defendant filed its opposition to each of Whirlpool's motions. See Def.'s Opp'n to Whirlpool Corporation's Mot. to Intervene ("Def.'s Opp'n to Intervention Mot."); Def.'s Opp'n to Whirlpool Corporation's Mot. for TRO and Prelim. Inj. ("Def.'s Opp'n to TRO and Prelim. Inj. Mot.").

The court, on May 6, 2009, issued an order granting a TRO, having concluded that "Whirlpool Corporation has made a showing of irreparable harm and a showing of the likelihood of its succeeding on the merits such as is appropriate to the grant of a temporary restraining order in this action" and that "the balance of hardships and public interest weigh in favor of the grant of such temporary restraining order." Order 1, May 6, 2009. The TRO enjoined the liquidation of Whirlpool's entries of subject merchandise that were exported by LG Chem., Ltd. and imported by Whirlpool during the period of review, for a period of twenty days following service of the order. Id. at 2.

In the TRO, the court "conditionally granted" Whirlpool "status as a plaintiff-intervenor for the sole purpose of allowing the court to conduct proceedings on an expedited basis preparatory to the court's ruling on Whirlpool Corporation's Motion to Intervene as of Right and on Whirlpool Corporation's motion for preliminary injunctive relief." Id. at 1. The order announced that the parties had until May 11, 2009 to request a hearing on the issue of whether Whirlpool should be granted a preliminary injunction and that the court, absent a request for a hearing, would rule...