Slip Op. 08-8
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
AMES TRUE TEMPER, :
:
Plaintiff, : Before: Richard K. Eaton, Judge
:
v. : Court No. 05-00581
:
UNITED STATES, :
:
Defendant. :
______________________________:
OPINION
[United States Department of Commerce’s final results of
redetermination sustained]
Dated: January 18, 2008
Wiley Rein, LLP (Timothy C. Brightbill and Charles O. Verrill,
Jr.), for plaintiff.
Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice; Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Courtney E. Sheehan); Office
of Chief Counsel for Import Administration, United States
Department of Commerce (Nithya Nagarajan), of counsel, for
defendant.
Eaton, Judge: In Ames True Temper v. United States, 31 CIT
__, Slip Op. 07-133 (Aug. 31, 2007) (not reported in the Federal
Supplement) (“Ames”), this court sustained, in part, and remanded
in part the United States Department of Commerce’s (“Commerce”)
final results of the thirteenth administrative review of the four
antidumping duty orders covering imports into the United States
Court No. 05-0581 Page 2
of heavy forged hand tools (“HFHTs”) from the People’s Republic
of China (“PRC”) made between February 1, 2003, and January 30,
2004 (“POR”). See HFHTs, Finished or Unfinished, With or Without
Handles, from the PRC, 70 Fed. Reg. 54,897 (Dep’t of Commerce
Sept. 19, 2005). The lone issue remanded related to respondent
Shandong Huarong Machinery Co., Ltd.’s (“Huarong”) production of
metal pallets. Id. at __, Slip Op. 07-133 at 20-24.
Specifically, the court directed Commerce “to reopen the record
and obtain additional evidence regarding Huarong’s production of
metal pallets” in light of plaintiff’s showing that Commerce did
not consider any input used by Huarong to hold its pallets
together. See id. at __, Slip Op. 07-133 at 23-24.
On remand, Commerce determined that welding wire should have
been reported by Huarong as a factor of production and included
it as such. See Final Results of Redetermination Pursuant to
Ames True Temper v. United States, Consol. Court No. 05-00581,
Slip Op. 07-133 (August 31, 2007), Court No. 05-00581 (Dep’t of
Commerce Nov. 28, 2007) (“Remand Results”). Accordingly,
Commerce recalculated Huarong’s antidumping duty margin for its
sales of axes/adzes to be 175.04%, a slight increase from
174.58%. See Remand Results at 2, 5. Jurisdiction is had
pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C.
§ 1516a(a)(2)(B)(iii) (2000). For the following reasons,
Court No. 05-0581 Page 3
Commerce’s Remand Results are sustained.1
When reviewing a final antidumping determination from
Commerce, the court “shall hold unlawful any determination,
finding, or conclusion found . . . to be unsupported by
substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
“Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Huaiyin
Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374
(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). To determine whether substantial evidence
exists, the court must consider “the record as a whole, including
evidence that supports as well as evidence that ‘fairly detracts
from the substantiality of the evidence.’” Id. (quoting Atl.
Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir.
1984)).
On remand, Commerce was obligated to “adhere closely to the
court’s outstanding order[]. Failure to do so unnecessarily
absorbs the time of counsel and the court, does not promote
respect for the rule of law, and may result in sanctions in
unfortunate cases.” Vertex Int’l, Inc. v. United States, 30 CIT
__, Slip Op. 06-35 at 1 (Mar. 8, 2006) (not reported in the
1
For a review of the factual background of this matter,
see generally Ames, 31 CIT __, Slip Op. 07-133 (Aug. 31, 2007)
(not reported in the Federal Supplement).
Court No. 05-0581 Page 4
Federal Supplement). Here, Commerce’s actions on remand
comported with the court’s opinion in Ames.
Commerce re-opened the record and issued supplemental
questionnaires on September 19, 2007, and October 19, 2007. See
Remand Results at 2; see also 9/19/07 Letter from Commerce to
Counsel for Huarong, Administrative Record (“AR”) 1; 10/19/07
Letter from Commerce to Counsel for Huarong, AR 5 (each enclosing
a questionnaire). These questionnaires each sought detailed
information from Huarong about the factors of production used in
producing its steel pallets, and the supplemental questionnaire
specifically inquired about Huarong’s use of welding wire. See
Remand Results at 3-4. In response to Commerce’s inquiries
. . . Huarong reported that it used welding
wire in producing pallets, a previously
unreported FOP [factor of production].
Huarong reported the amount of welding wire
used per kilogram of subject merchandise.
Huarong explained that it did not report
welding wire as an FOP during the
administrative review because it treated
welding wire as an overhead expense because
it is mainly used for factory repairs and
only a small amount of the overall POR
[period of review] consumption of welding
wire is used for pallet making.
Remand Results at 3 (citations omitted).
With this information in its possession, Commerce noted that
it is its “normal practice to apply a weighted-average freight
distance, capped by the distance to the nearest port, for FOPs
used in the calculation of NV [normal value].” Id. at 3. Here,
Court No. 05-0581 Page 5
however, because Huarong reported the freight distance from its
factory as opposed to from its suppliers, Commerce “used a single
average of the suppliers’ distances to account for freight costs
associated with purchasing welding wire.”2 Id. at 4-5. In
accordance with this methodology, Commerce included welding wire
in recalculating Huarong’s normal value and concluded that
Huarong’s antidumping duty margin for its sale of axes/adzes
increased from 174.58% to 175.04%. See id. at 4-5 (noting also
that Commerce “valued welding wire using publicly available
Indian import statistics for February 2003 - January 2004 from
the World Trade Atlas”).
There is nothing to indicate that Commerce did not fully
comply with the court’s instructions in Ames. When reviewing the
Department’s treatment of various factors in calculating normal
value, “the proper role of this court, . . . is to determine
whether the methodology used by the [agency] is in accordance
with law . . . .” Shieldalloy Metallurgical Corp. v. United
States, 20 CIT 1362, 1368, 947 F. Supp. 525, 532 (1996) (internal
quotation marks & citations omitted; ellipses & alteration in
original). “As long as the agency’s methodology and procedures
are reasonable means of effectuating the statutory purpose, and
there is substantial evidence in the record supporting the
2
Huarong established to Commerce’s satisfaction that it
did not maintain records demonstrating a weighted average
supplier distance. Remand Results at 4.
agency’s conclusions, the court will not impose its own views as
to the sufficiency of the agency’s investigation or question the
agency’s methodology.” Id. at 1368, 947 F. Supp. at 532
(internal quotation marks & citations omitted). Here, the
methodology employed in calculating Huarong’s normal value was
reasonable in light of available information and the conclusion
reached was supported by substantial evidence in the record,
i.e., Huarong’s detailed questionnaire responses. It is worth
noting that no party commented on Commerce’s draft results and
that plaintiff chose not to submit comments concerning the Remand
Results to the court. See Remand Results at 2; 1/10/08 Letter
from Plaintiff’s Counsel to Court (confirming plaintiff’s
intention not to file comments).
Accordingly, for the reasons stated, Commerce’s Remand
Results are sustained.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: January 18, 2008
New York, New York