Usinor Sacilor v. US

• Citation: 872 F. Supp. 1000,18 CIT 1155
• Decision Date: 19 December 1994
• Docket Number: Slip Op. 94-197,No. 93-09-00592-AD.,93-09-00592-AD.
• Parties: USINOR SACILOR, SOLLAC, and GTS, Plaintiffs, v. UNITED STATES, Defendant, Inland Steel Industries, Inc., AK Steel Corp., Bethlehem Steel Corporation, Geneva Steel, Gulf States Steel Inc. of Alabama, Laclede Steel Company, LTV Steel Co., Inc., National Steel Corporation, Sharon Steel Corporation, U.S. Steel Group a Unit of USX Corporation, and WCI Steel, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

872 F. Supp. 1000

18 CIT 1155

USINOR SACILOR, SOLLAC, and GTS, Plaintiffs, v. UNITED STATES, Defendant, Inland Steel Industries, Inc., AK Steel Corp., Bethlehem Steel Corporation, Geneva Steel, Gulf States Steel Inc. of Alabama, Laclede Steel Company, LTV Steel Co., Inc., National Steel Corporation, Sharon Steel Corporation, U.S. Steel Group a Unit of USX Corporation, and WCI Steel, Inc., Defendant-Intervenors.

Slip Op. 94-197, No. 93-09-00592-AD.

United States Court of International Trade.

December 19, 1994.

COPYRIGHT MATERIAL OMITTED

Weil, Gotshal & Manges, A. Paul Victor, Martin S. Applebaum, and Scott Maberry, New York City, for plaintiffs.

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

Dewey Ballantine, Alan Wm. Wolff and Michael H. Stein, Washington, DC, for defendant-intervenors.

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

MEMORANDUM OPINION AND ORDER

DiCARLO, Chief Judge:

Plaintiffs in this consolidated action, Usinor Sacilor and its subsidiaries, Sollac and GTS (collectively "Usinor"), move for Judgment Upon an Agency Record pursuant to USCIT R. 56.2, challenging certain aspects of the final determinations of sales at less than fair value by the Department of Commerce in 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 France, 58 Fed.Reg. 37,125 (Dep't Comm. 1993), amended by 58 Fed.Reg. 44,169 (Dep't Comm.1993). The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

BACKGROUND

On June 30, 1992, the United States steel industry filed antidumping duty petitions seeking over 40 investigations of various types of steel products from 20 countries, including France. For the French investigations, Commerce named Usinor Sacilor as a mandatory respondent. Usinor Sacilor is a French holding company owning virtually every steel company in France, and its subsidiaries, Sollac and GTS, produced virtually all of the merchandise investigated.

The investigations covered four separate classes of merchandise: hot-rolled carbon steel flat products (hot-rolled steel), cold-rolled carbon steel flat products (cold-rolled steel), corrosion-resistant carbon steel flat products (corrosion-resistant steel), and cut-to-length carbon steel plate (steel plate). The period of investigation (POI) was from January 1, 1992 through June 30, 1992.

In the final determinations, Commerce found dumping margins for all four classes of merchandise sold by Usinor, based on the differences between Foreign Market Value (FMV) and United States Price (USP). The amended final determinations resulted in the weighted-average dumping margins of 80.56% ad valorem for hot-rolled steel, 78.68% for cold-rolled steel, 39.40% for corrosion-resistant steel, and 52.76% for steel plate. Amended Determination, 58 Fed. Reg. at 44,169.

The issues presented in this action include: (1) whether Commerce properly used the arm's length test in determining if home market sales from Usinor to its related steel service centers should be included in the calculation of FMV; (2) whether it was proper for Commerce to reject Usinor's data for home market downstream sales from its related secondary steel centers to their unrelated customers, and if so, whether Commerce's choice of BIA was reasonable; (3) whether it was proper for Commerce to reject Usinor's revised B-2 product concordance; and (4) whether Commerce properly determined that Usinor miscoded hot-rolled steel product grade E-24.

DISCUSSION

This court must uphold Commerce's final determination in an antidumping 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 has been defined as "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. The Arm's Length Test

In calculating FMV, Commerce normally uses prices for home market sales, as defined in 19 U.S.C. § 1677b(a) (1988), but excludes sales to related parties — because such sales are subject to manipulation — unless the sales were made at arm's length, i.e., that the prices are "comparable" to the prices of sales made to unrelated parties. See 19 C.F.R. § 353.45(a) (1994). The arm's length test Commerce used in all the flat-rolled steel investigations is set out in Appendix II. A., Issues Common to All Antidumping Investigations of Flat-Rolled Steel Products, to Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products From Argentina, 58 Fed.Reg. 7066, 7069 (Dep't Comm.1993), and Appendix II. A., Issues Common to All Antidumping Investigations of Flat-Rolled Steel Products, to Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products From Argentina, 58 Fed. Reg. 37,062, 37,077 (Dep't Comm.1993). Pursuant to this test, for each related customer, Commerce compared, on a product-by-product basis, the weighted average price of total sales from the respondent to the related customer with the weighted average price of total sales from the respondent directly to unrelated customers. If the customer-specific price ratio of related-party versus unrelated-party sales was greater than or equal to 99.5%, all sales to that related customer were determined to be at arm's length. Certain Cold-Rolled Carbon Steel Flat Products From Argentina, 58 Fed.Reg. at 7069. Conversely, if the price ratio of related-party versus unrelated-party sales was less than 99.5%, all sales to that related customer were considered not at arm's length because, "on average, that customer was paying less than unrelated customers for the same merchandise." Id. Commerce excluded from its calculation of foreign market value "all sales to any related customer" that were determined not to be at arm's length. Id.

Responding to the comments from the parties, Commerce modified the arm's length test to take into account the effect on prices that different levels of trade may have, as prices to end-users are generally higher than prices to distributors. 58 Fed.Reg. at 37,077. Commerce, however, did not adopt Usinor's proposal that the arm's length test should incorporate the quantity of sales in its calculation. Usinor contended that price differences may result when related party sales made in certain quantities are compared to unrelated party sales made in different quantities. Commerce explained:

We agree that Usinor has highlighted a method for fine-tuning our arm's-length test.... Adopting Usinor's proposal, however, would require us to identify quantity ranges within which quantities are "comparable." Given the failure of Usinor or other parties to provide factual information on this subject, this would be a highly subjective task that neither petitioners nor respondents could comment on at this point in our investigations. Moreover, ... we believe that consideration of level of trade could address Usinor's concern to the extent that different quantities are associated with different levels of trade.

Id.

Usinor's home market sales to its related secondary steel centers ranged from percent to percent of its total home market sales during the POI for the different classes or kinds of merchandise. (Conf. Doc. 11, Letter from Counsel for Usinor to Commerce, Sept. 1, 1992, at 4.) Applying the arm's length test, Commerce found that many of these sales were not at arm's length.

Usinor contends that Commerce's arm's length test is flawed because it did not take into account differences in quantities of sales and a statistical variance. To demonstrate the methodological flaws of Commerce's test, Usinor engages in a statistical analysis of hypothetical situations. According to Usinor, Commerce should have used Usinor's methodology, prepared by a statistician in a study of related and unrelated sales in the home market.

Under the applicable statute and regulations, Commerce has considerable discretion in deciding whether to include related party sales for the calculation of foreign market value. The statute merely states that the prices of sales to a related party "may be used in determining foreign market value." 19 U.S.C. § 1677b(a)(3). According to Commerce's implementing regulation:

If a producer or reseller sold such or similar merchandise to a person related as described in 19 U.S.C. § 1677(13) , the Secretary ordinarily will calculate foreign market value based on that sale only if satisfied that the price is comparable to the price at which the producer or reseller sold such or similar merchandise to a person not related to the seller.

19 C.F.R. § 353.45(a) (emphasis added).

The court "must accord substantial weight to an agency's interpretation of a statute it administers. Though a court may reject an agency interpretation that contravenes clearly discernible legislative intent, its role when that intent is not contravened is to...