Carpenter Technology Corp. v. United States

Slip Op. 09-134

UNITED STATES COURT OF INTERNATIONAL TRADE

CARPENTER TECHNOLOGY
CORPORATION, VALBRUNA SLATER
STAINLESS, INC., and ELECTRALLOY
CORPORATION, a DIVISION of G.O.
CARLSON, INC.,
Before: Timothy C. Stanceu, Judge
Plaintiffs,
Court No. 07-00366
v.

UNITED STATES,

Defendant.

OPINION AND ORDER

[Granting in part plaintiffs’ motion for judgment upon the agency record and remanding the
matter to the United States Department of Commerce to remedy an unlawful decision limiting
individual examinations to only two respondents in an administrative review of an antidumping
duty order]

Dated: November 23, 2009

Kelley Drye & Warren LLP (Laurence J. Lasoff, Grace W. Kim, and Mary T. Staley) for
plaintiffs.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (L. Misha Preheim); Sapna Sharma, Office of the Chief Counsel for
Import Administration, United States Department of Commerce, of counsel, for defendant.

Stanceu, Judge: Plaintiffs Carpenter Technology Corporation, Valbruna Slater Stainless,

Inc., and Electralloy Corporation, a Division of G.O. Carlson, Inc. (collectively, “plaintiffs”)

contest the final determination (“Final Results”) issued by the International Trade

Administration, United States Department of Commerce (“Commerce” or the “Department”), in
Court No. 07-00366 Page 2

an administrative review of an antidumping duty order on imports of stainless steel bar from

India (the “subject merchandise”). Notice of Final Results & Final Partial Rescission of

Antidumping Duty Admin. Review: Stainless Steel Bar from India, 72 Fed. Reg. 51,595 (Sept. 10,

2007) (“Final Results”). Plaintiffs, petitioners in the underlying antidumping duty investigation

and participants in the administrative review proceeding that gave rise to this action, raise various

challenges to the Department’s selection of two, out of a total of eight, respondents

(“exporters/producers”) for individual examination during the review. Commerce chose for

individual examination the two respondents with the highest volume of exports of the subject

merchandise to the United States during the period of review of February 1, 2005 through

January 31, 2006 (“period of review” or “POR”). Mem. from Int’l Trade Compliance Analyst,

AD/CVD Operations, Office 1, to Senior Office Dir., AD/CVD Enforcement, Office 1, at 4

(June 7, 2006) (Admin. R. Doc. No. 49) (“Resp’t Selection Mem.”). Because Commerce

determined a de minimis dumping margin for one of those two respondents, Commerce assigned

to the six non-selected respondents the weighted-average antidumping duty margin it determined

for the other examined respondent, which was 2.01%. Final Results, 72 Fed. Reg. at 51,596-97.

Before the court is the plaintiffs’ motion for judgment upon the agency record. Pl’s.

Rule 56.2 Mot. for J. upon the Agency R. 1 (“Pls.’ Mot.”). Because the Department’s decision

limiting the number of examined respondents was contrary to law, the court, upon plaintiffs’

motion, sets this decision aside and remands the Final Results to Commerce so that Commerce

may make a new respondent selection decision and begin the process of resuming the

administrative review with respect to the six non-selected respondents. The court denies relief
Court No. 07-00366 Page 3

on plaintiffs’ other claim, which is that Commerce acted contrary to law in performing only a

partial verification of one of the examined respondents.

I. BACKGROUND

Commerce initiated the administrative review in April 2006, after three Indian

exporters/producers of the subject merchandise requested a review of their respective sales and

petitioners requested a review of the sales of nine other Indian exporters/producers. See

Initiation of Antidumping & Countervailing Duty Admin. Reviews & Deferral of Admin. Reviews,

71 Fed. Reg. 17,077 (Apr. 5, 2006) (“Initiation Notice”). Of the twelve Indian

exporters/producers for which a request for review had been made, and of which Commerce

initiated a review, Commerce rescinded the review as to three exporters/producers that it

determined to have had no sales of the subject merchandise during the POR. See Notice of

Prelim. Results of Antidumping Duty Admin. Review, Intent to Rescind & Partial Rescission of

Antidumping Duty Admin. Review: Stainless Steel Bar from India, 72 Fed. Reg. 10,151, 10,154

(Mar. 7, 2007) (“Prelim. Results”). Commerce subsequently rescinded the review of another

exporter/producer for which Commerce determined that there were no suspended entries of

subject merchandise. See Stainless Steel Bar From India: Notice of Intent To Partially Rescind

Antidumping Duty Admin. Review, 71 Fed. Reg. 29,916, 29,918 (May 24, 2006). As a result of

these determinations, eight respondent exporters/producers remained subject to the review.

On June 7, 2006, Commerce issued a memorandum (“Respondent Selection

Memorandum”) announcing that, due to its limited resources, Commerce had determined that it

would be impracticable for it to make individual dumping margin determinations for all of the

eight remaining respondents and that, based on the allegations and workload required of the
Court No. 07-00366 Page 4

review, Commerce could “examine a maximum of two exporters/producers of stainless steel bar

from India.” Resp’t Selection Mem. 3; see Prelim. Results, 72 Fed. Reg. at 10,152-53.

Commerce cited in the memorandum information it had obtained from the twelve

exporters/producers listed in the notice initiating the review in response to Commerce’s request

for quantity and value information on sales of subject merchandise to the United States during

the POR. Resp’t Selection Mem. 2. Commerce selected only two of the eight companies

remaining under review, Bhansali Bright Bars Pvt., Ltd. (“Bhansali”) and Venus Wire Industries

Pvt., Ltd. (“Venus”), for individual examination, explaining that these two companies were the

two largest exporters/producers based on quantity of subject merchandise shipped to the United

States during the POR. Resp’t Selection Mem. 4; Prelim. Results, 72 Fed. Reg. at 10,152.

Commerce issued the preliminary results of the review (“Preliminary Results”) in March

2007. Prelim. Results, 72 Fed. Reg. 10,151. Commerce announced a preliminary dumping

margin of 2.10% for Bhansali and a preliminary de minimis rate of 0.03% for Venus. Id.

at 10,157. Commerce conducted a verification of the sales and cost information submitted by

Bhansali but conducted a verification of only the sales information submitted by Venus. Final

Results, 72 Fed. Reg. at 51,596. In the Final Results, Commerce determined a weighted-average

dumping margin of 2.01% for Bhansali and a de minimis rate of 0.03% for Venus, which it

excluded from the calculation of the rate to be applied to the non-selected respondents.1 Id.

1
The non-selected respondents are Isibars Limited, Grand Foundry, Ltd., Sindia Steels
Limited, Snowdrop Trading Pvt. Ltd., Facor Steels, Ltd., and Mukand Ltd. Notice of Final
Results & Final Partial Rescission of Antidumping Duty Admin. Review: Stainless Steel Bar from
India, 72 Fed. Reg. 51,595, 59,597 (Sept. 10, 2007) (“Final Results”).
Court No. 07-00366 Page 5

Accordingly, Commerce assigned to the non-selected respondents the 2.01% rate it had

determined for Bhansali. Final Results, 72 Fed. Reg. at 51,597 & n.2.

Plaintiffs initiated this action on October 4, 2007. See Summons. Plaintiffs moved for

judgment upon the agency record on May 19, 2008. Pls.’ Mot. 2. At the court’s request, the

parties submitted additional briefing on certain issues raised by the Department’s decision not to

perform an individual examination of, and not to assign an individual dumping margin to, each

of the eight respondents in the review. Pls.’ Br. Regarding Commerce’s Decision Not to

Conduct an Individual Review of all Eight Resp’ts; Def.’s Supplemental Br.

II. DISCUSSION

The court exercises jurisdiction under 28 U.S.C. § 1581(c). 28 U.S.C. § 1581(c) (2006).

In reviewing the Final Results, the court must hold unlawful any determination, finding, or

conclusion found to be unsupported by substantial evidence on the record or otherwise not in

accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(i) (2006). “Substantial evidence is more

than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

Plaintiffs claim that Commerce applied an unreasonable and impermissible methodology

in selecting Bhansali and Venus as the respondents it would examine in the administrative

review. Mem. in Supp. of Pls.’ Rule 56.2 Mot. for J. upon the Agency R. 2 (“Pls.’ Mem.”).

According to plaintiffs, selecting these two respondents because they were the two highest-

volume exporters “violated the agency’s statutory obligation to calculate dumping margins as

accurately as possible” and “also was not based on substantial evidence in this record.” Id. at 6.

Plaintiffs argue, further, that “[o]ther cases in which Commerce has applied the weighted-average
Court No. 07-00366 Page 6

to non-reviewed companies are . . . distinguished by the sheer number of companies involved,

where there is no question that Commerce cannot examine each and every one.” Id. at 14.

According to plaintiffs, the Department’s application of the review-specific rate was not

reasonable in light of the fact that there are only eight respondents in this case. Id. at 9-12. They

specifically object that Bhansali and Venus had then-current rates of 0% and 0.06%, respectively,

while three of the non-selected companies, Facor, Isibars, and Mukand, had then-current rates of

19.54%, 21.02%, and 21.02%, respectively. Id. at 8-9. They argue that each of these non-

selected respondents received a “windfall” when assigned a rate of 2.01% in the administrative

review. Id. at 11. They contend that choosing the largest volume exporters was “certain to

produce extremely skewed results,” id. at 6, because “only the respondents who had the lowest

prior dumping margins would be likely to have significant volumes, given that in a competitive

marketplace the companies with the lowest dumping margins would be the companies from

whom U.S. importers would want to buy.” Id. at 13. Plaintiffs also argue that the Department’s

application of the weighted-average dumping margin to the non-selected respondents was

unreasonable because it was contrary to established departmental policy and to the remedial

intent of the antidumping law. Id. at 15-16. Furthermore, plaintiffs contend that Commerce

failed to provide the parties an opportunity to comment on the methodology used to limit the

number of respondents to be reviewed prior to the Department’s implementation of that

methodology. Id. at 16-18. Finally, plaintiffs argue that Commerce erred in conducting only a

partial verification of Venus, one of the two examined respondents. Id. at 18-19.
Court No. 07-00366 Page 7

A. The Department’s Decision Limiting the Number of Examined Respondents Was Contrary to
the Governing Statute

The court considers, first, whether the Department’s decision limiting the number of

examined exporters/producers was consistent with the antidumping statute.2 The statute, in

paragraph (1) of 19 U.S.C. § 1677f-1(c), establishes as a general requirement that Commerce

“shall determine the individual weighted average dumping margin for each known exporter and

producer of the subject merchandise” when “determining weighted average dumping margins

under section 1673b(d), 1673d(c), or 1675(a) of [Title 19, United States Code].3 19 U.S.C.

§ 1677f-1(c)(1) (2006). The statute creates an exception to the general requirement, under which

exception Commerce is authorized to determine the weighted average dumping margins for

fewer than all of the exporters or producers of the subject merchandise, “[i]f it is not practicable

to make individual weighted average dumping margin determinations . . . because of the large

number of exporters or producers involved in the . . . review.” 19 U.S.C. § 1677f-1(c)(2).4 In

2
The parties have addressed this issue in the additional briefing submitted at the court’s
request. See Pls.’ Br. Regarding Commerce’s Decision Not to Conduct an Individual Review of
all Eight Resp’ts; Def.’s Supplemental Br. Because the court concludes that the Department’s
respondent selection decision was contrary to law for the reasons discussed in this Opinion and
Order, the court finds it unnecessary to consider many of the arguments plaintiffs raise in support
of their motion for judgment upon the agency record and many of the arguments defendants
make in response.
3
In this case, Commerce determined weighted-average dumping margins pursuant to
19 U.S.C. § 1675(a) (2006), which pertains to periodic administrative reviews of antidumping
duty orders.
4
Paragraph (2) of § 1677f-1(c) provides:
If it is not practicable to make individual weighted average dumping margin
determinations under paragraph (1) because of the large number of exporters or
producers involved in the investigation or review, the administering authority may
determine the weighted average dumping margins for a reasonable number of
(continued...)
Court No. 07-00366 Page 8

that event, Commerce “may determine the weighted average dumping margins for a reasonable

number of exporters or producers,” which it may select by using “statistically valid” sampling, or

it may examine the “exporters and producers accounting for the largest volume of the subject

merchandise from the exporting country that can be reasonably examined.” 19 U.S.C.

§ 1677f-1(c)(2). Commerce chose the latter option in this review. See Resp’t Selection Mem. 4.

At that time, eight respondents remained in the review. See id. at 2. Commerce set forth its

decision in the Respondent Selection Memorandum:

AD/CVD Operations Office 1, the office to which this administrative review is
assigned, does not have the resources to examine all such exporters/producers.
This office is conducting numerous concurrent antidumping proceedings which
place a constraint on the number of analysts that can be assigned to this case. Not
only do these other cases present a significant workload, but the deadlines for a
number of the cases coincide and/or overlap with deadlines in this antidumping
proceeding. In addition, because of the significant workload throughout Import
Administration, we cannot anticipate receiving any additional resources to devote
to this antidumping proceeding. Based upon our analysis of the allegations and
the workload required of this administrative review, we have determined that we
can examine a maximum of two exporters/producers of stainless steel bar from
India.

Resp’t Selection Mem. 3 (footnote omitted).

As the Respondent Selection Memorandum confirms, the starting point for Commerce’s

decision on respondent selection was its determination “that we can examine a maximum of two

4
(...continued)
exporters or producers by limiting its examination to–
(A) a sample of exporters, producers, or types of products that is
statistically valid based on the information available to the administering
authority at the time of selection, or
(B) exporters and producers accounting for the largest volume of the
subject merchandise from the exporting country that can be reasonably
examined.
19 U.S.C. § 1677f-1(c)(2) (2006).
Court No. 07-00366 Page 9

exporters/producers of stainless steel bar from India.” Resp’t Selection Mem. 3. In stating this

determination, Commerce implicitly construed § 1677f-1(c)(2) such that any number of

exporters/producers larger than two was a “large number of exporters or producers” within the

meaning of that term as used in the statutory provision. See 19 U.S.C. § 1677f-1(c)(2). The

court must decide whether such a statutory construction is in accordance with law.

Commerce did not include a discussion of its reasoning on the statutory construction

issue central to its respondent selection decision. The court nevertheless reviews the

Department’s construction according to the analysis set forth in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984); see Pesquera Mares Australes

Ltda. v. United States, 266 F.3d 1372, 1379-80 (Fed. Cir. 2001). In so doing, the court considers

first “whether Congress has directly spoken to the precise question at issue,” Chevron, 467 U.S.

at 842; if so, the court “must give effect to the unambiguously expressed intent of Congress.” Id.

at 843. If not, and “the statute is silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is based on a permissible construction of

the statute.” Id.

Congress did not define the term “large number of exporters or producers involved in the

. . . review,” as used in 19 U.S.C. § 1677f-1(c)(2). Even though the term might be seen as

inherently ambiguous in some contexts, the precise question posed by this case is whether the

term plausibly may be construed to encompass any number larger than two. In answering this

question, the court has no difficulty concluding, pursuant to the first step in a Chevron analysis,

that the term will not bear any such construction. In Zhejiang Native Produce & Animal By-

Products Import & Export Corp. v. United States, 33 CIT __, Slip Op. 09-87 (Aug. 19, 2009), the
Court No. 07-00366 Page 10

Court of International Trade considered an issue nearly identical to the one posed by this case.

Zhejiang arose from a Commerce determination that individual examination of the four

respondents that remained in an antidumping administrative review at that time “was not

practicable because of resource constraints arising from the ‘significant workload’ Commerce

faced in other antidumping proceedings.” Zhejiang, 33 CIT at __, Slip Op. 09-87, at 3 (citation

omitted). In Zhejiang, this court expressly rejected the conclusion by Commerce “that four was a

large number of respondents in the context of ‘the various administrative circumstances’

Commerce was confronting during the review and that individual examination of all four

exporters and producers was not practicable because of its significant workload arising from

other antidumping reviews and investigations.” Id. at __, Slip Op. 09-87, at 6 (citation omitted).

The opinion in Zhejiang concludes that “[t]he statute focuses solely on the practicability of

determining individual dumping margins based on the large number of exporters or producers

involved in the review at hand” and that “Commerce cannot rewrite the statute based on its

staffing issues.” Id. at __, Slip Op. 09-87, at 6-7.

In this case, because Commerce’s respondent selection decision was based on a statutory

construction at odds with the clearly expressed intent of Congress, it must be set aside, along

with the dumping margin of 2.01% that was assigned to the non-selected respondents and that

resulted directly from that unlawful decision. The court finds defendant’s arguments to the

contrary to be unpersuasive. In support of Commerce’s decision, defendant argues that “[t]he

Court’s decision in Zhejiang notwithstanding, nothing in the statute limits Commerce’s authority

to select the number of companies reviewed individually to those situations in which there is

some minimum number of total potential companies to consider.” Def.’s Supplemental Br. 3.
Court No. 07-00366 Page 11

Contrary to the premise of this argument, Congress imposed on Commerce a general requirement

to “determine the individual weighted average dumping margin for each known exporter and

producer of the subject merchandise.” 19 U.S.C. § 1677f-1(c)(1). An exception to this

requirement applies where “it is not practicable to make individual weighted average dumping

margin determinations . . . because of the large number of exporters or producers involved in the

. . . review.” Id. § 1677f-1(c)(2) (emphasis added). As Zhejiang makes clear, Commerce is not

free to invoke this exception unless faced with the prospect of examining individually a “large

number” of exporters and producers, however that term may be defined. See Zhejiang, 33 CIT

at __, Slip Op. 09-87, at 6.

Defendant also argues that in this case “Commerce limited the number of companies

examined individually because it was not practicable to make individual antidumping duty

determinations for each of the eight known exporters or producers of subject merchandise.”

Def.’s Supplemental Br. 3. This argument overlooks the important point that Commerce did not

simply decide that it was impracticable to review eight respondents. Commerce expressly

decided in the Respondent Selection Memorandum that it could examine no more than two

exporters/producers. See Resp’t Selection Mem. 3 (“Based upon our analysis of the allegations

and the workload required of this administrative review, we have determined that we can

examine a maximum of two exporters/producers of stainless steel bar from India” (emphasis

added)). In light of the decision that examination of any number of exporters/producers in excess

of two was not possible, the conclusion in the same memorandum that Commerce “does not have

the resources” to review the eight respondents was essentially meaningless. Id. Defendant’s

argument that the facts of this case are distinguishable from those in Zhejiang (which, defendant
Court No. 07-00366 Page 12

points out, involved a total of four, not eight, respondents) is flawed for the same reason. Def.’s

Supplemental Br. 2-3. Because Commerce concluded that it could not examine individually even

three respondents, the facts of this case closely parallel those of Zhejiang. Although defendant

correctly argues that “this Court is not bound by a decision of another judge of the same court,”

id. at 2, the court is not applying the holding in Zhejiang as binding precedent. Nevertheless, the

court considers instructive the reasoning in Zhejiang that Commerce is not permitted to rewrite

the statute based on its own staffing issues. See Zhejiang, 33 CIT at __, Slip Op. 09-87, at 6-7.

Here, the Department decided that it could review no more than two respondents, based on its

surmising that “we cannot anticipate receiving any additional resources to devote to this

antidumping proceeding” and on its “analysis of the allegations and the workload required of this

administrative review.” Resp’t Selection Mem. 3.

The court next considers the question of an appropriate remand order. Commerce having

already calculated individual weighted-average dumping margins for two exporters/producers

(i.e., Bhansali and Venus), the situation existing upon remand is that no individual examinations

were performed of the six non-selected respondents. In the ordinary instance, i.e., in the absence

of any exception invoked under 19 U.S.C. § 1677f-1, Commerce is required to examine the

individual sales of, and determine a weighted average dumping margin for, each of these six

respondents. See 19 U.S.C. §§ 1675(a)(2), 1677f-1(c)(1). The statute, in § 1677f-1(c)(2), grants

certain discretion (as discussed above) not to examine each respondent individually. At this

point in the proceedings, however, the court need not decide whether Commerce may review

fewer that all six of the previously non-examined respondents, and, Commerce not having ruled

on this issue, the court declines to do so. Still, any decision on this issue that Commerce reaches
Court No. 07-00366 Page 13

upon remand must be supported by substantial record evidence and adequate reasoning, and be in

accordance with law. Accordingly, the court opines that should Commerce decide on remand

that, according to § 1677f-1(c)(2), it is not practicable to examine individually each of the six

previously non-selected respondents, such a decision likely could not be sustained on the record

facts of this case.

Congress provided the authority in § 1677f-1(c)(2) as an exception to the general

statutory requirement, expressed in § 1677f-1(c)(1), that individual weighted-average dumping

margins be determined for each known exporter or producer of the subject merchandise involved

in an administrative review. 19 U.S.C. § 1677f-1(c)(1). Within the statutory structure governing

administrative reviews conducted under 19 U.S.C. § 1675(a), this general requirement is

fundamental to ensuring that dumping margins, and accordingly antidumping duty assessment

rates, are based on a comparison of the normal value and the export price (or constructed export

price) of each entry of the subject merchandise. See 19 U.S.C. § 1675(a)(2). The court regards

“this case as an instance in which an exception to ‘a general statement of policy’ is sensibly read

‘narrowly in order to preserve the primary operation of the [policy].’” City of Edmonds v. Oxford

House, Inc., 514 U.S. 725, 731-32 (1995) (quoting Comm’r v. Clark, 489 U.S. 726, 739 (1989));

Sutherland Statutory Constr. § 47:11 (6th ed. 2000) (“Where a general provision in a statute has

certain limited exceptions, all doubts should be resolved in favor of the general provision rather

than the exceptions.”). Sustaining a decision on remand to examine individually fewer that the

six respondents, however, would require a broad view of the exception in § 1677f-1(c)(2) and the

Department’s authority thereunder. Moreover, Congress provided Commerce other authority to

address the situation in which a review presents the need for Commerce to analyze an
Court No. 07-00366 Page 14

inordinately large number of sales of subject merchandise. See 19 U.S.C. § 1677f-1(a)(1)

(authorizing Commerce to “use averaging and statistically valid samples, if there is a significant

volume of sales of the subject merchandise or a significant number or types of products”). This

authority is available even where the number of exporters and producers to be individually

examined is not particularly large. See id. The presence of this authority further supports a

construction of § 1677f-1(c)(2) under which limiting the number of individually examined

respondents is intended to be the exceptional circumstance, not the norm.5 Were Commerce

permitted to decide against conducting an individual examination of all respondent exporters and

producers based only on a conclusion that constraints on its resources compels that decision,

Commerce could decide to limit its individual examinations in practically any review that

involves multiple respondents, even where the number of respondents to be examined

individually is not out of the ordinary. If Commerce could limit the individual examination of

respondents in instances in which only six respondents are involved, what Congress intended as

an exceptional circumstance–to be applied only where the number of respondents is

“large”–would instead become the norm.

If, instead, Commerce on remand decides to conduct an individual examination of each of

the six previously non-selected respondents, it will need to reopen the administrative record and

solicit the necessary information from these respondents. With respect to these six

exporters/producers, the record does not contain significant information beyond the responses to

the Department’s request for quantity and value information on sales of subject merchandise to

5
The court takes judicial notice that Commerce, on numerous occasions, has reviewed six
or more respondents in an administrative review under 19 U.S.C. § 1675(a).
Court No. 07-00366 Page 15

the United States. See Resp’t Selection Mem. 2; Prelim. Results, 72 Fed. Reg. at 10,152;

Initiation Notice, 71 Fed. Reg. at 17,078.6 The court is not in a position to estimate the time that

will be required for Commerce to obtain the necessary information, complete the individual

examinations, and issue an amended final determination of the results of the administrative

review that sets forth the necessary individual weighted-average dumping margins. The court’s

remand order therefore is directing Commerce to file an interim remand redetermination that

informs the court of the Department’s decision as to whether it will conduct individual

examinations of some or all of the six respondents and, if so, of the time Commerce will require

to publish an amended final determination of the results of the review that sets forth dumping

margins for these respondents.7

6
Commerce requested only volume and value data prior to making its respondent
selection decision. See, e.g., Letter from Program Manager, Office 1, AD/CVD Operations,
Dep’t of Commerce (“DOC”), to Facor Steels Ltd. 1 (Apr. 7, 2006) (Admin. R. Doc. No. 9)
(requesting only that Facor Steels Limited “provide the total quantity (metric tons) and value of
the subject merchandise that it exported to the United States during the period of review,
February 1, 2005 through January 31, 2006” and “ensure that the amounts reported include all
affiliated companies”). Commerce sent letters containing the same request, verbatim, to the
eleven other respondents for which review had been requested. See Letter from DOC to Mukand
Ltd. 1 (Apr. 7, 2006) (Admin. R. Doc. No. 10); Letter from DOC to Venus Wire Indus. Ltd. 1
(Apr. 7, 2006) (Admin. R. Doc. No. 11); Letter from DOC to Snowdrop Trading Pvt., Ltd. 1
(Apr. 7, 2006) (Admin. R. Doc. No. 12); Letter from DOC to Sindia Steels Ltd. 1 (Apr. 7, 2006)
(Admin. R. Doc. No. 13); Letter from DOC to Meltroll 1 (Apr. 7, 2006) (Admin. R. Doc.
No. 14); Letter from DOC to Grand Foundry, Ltd. 1 (Apr. 7, 2006) (Admin. R. Doc. No. 15);
Letter from DOC to Bhansali 1 (Apr. 7, 2006) (Admin. R. Doc. No. 16); Letter from DOC to
Atlas Stainless 1 (Apr. 7, 2006) (Admin. R. Doc. No. 17); Letter from DOC to Akai Asian 1
(Apr. 7, 2006) (Admin. R. Doc. No. 18); Letter from DOC to Isibars Ltd. 1 (Apr. 7, 2006)
(Admin. R. Doc. No. 19); Letter from Miller & Chevalier to Sec’y of Commerce 1 (Apr. 24,
2006) (Admin. R. Doc. No. 33) (regarding respondent Viraj); Mem. from Int’l Trade Compliance
Analyst, Office 1, to The File 1 (Apr. 24, 2006) (Admin. R. Doc. No. 34) (regarding respondent
Viraj).
7
Publication of an amended determination of final results is necessary for various
reasons, including the right of the six affected respondents to contest the determination of their
weighted-average dumping margins. See 19 U.S.C. § 1516a(a) (2006).
Court No. 07-00366 Page 16

B. Commerce Acted Lawfully in Performing Only a Partial Verification as to Venus

Plaintiffs contend that the Department’s determination to conduct a full verification of

Bhansali, but only a partial verification of Venus, was contrary to law. Pls.’ Mem. 18-19.

Plaintiffs acknowledge that Commerce is not required by statute to conduct a full verification of

the respondents in every review but argue that where, as here, only two respondents were

examined, the decision to conduct a complete verification with respect to the data pertaining to

only one of those respondents “is not a reasonable fulfillment of Commerce’s responsibility to

calculate dumping margins as accurately as possible.” Id. at 19. According to plaintiffs, “[f]ull

verification is especially important in this case where non-selected respondents’ dumping

margins were based on a small sample of other respondents’ data and where the selected

respondents were so differently situated from those respondents that were not selected for

review.” Pls.’ Reply Br. 12-13. Plaintiffs cite in support of their argument Coalition for the

Preservation of American Brake Drum & Rotor Aftermarket Manufacturers v. United States,

23 CIT 88, 109 & n.36, 44 F. Supp. 2d 229, 250 & n.36 (1999) (“Brake Drum”). Pls.’ Reply

Br. 13.

The court finds no merit in plaintiffs’ argument on verification. Although this argument

is correct that the overriding purpose of the antidumping statute is the calculation of antidumping

duty margins that are as accurate as possible, the argument ignores the breadth of the

Department’s discretion to decide whether and how to verify the information submitted during an

antidumping proceeding. In 19 U.S.C. § 1677m(i)(3), Congress set forth certain circumstances

in which Commerce must verify all information upon which it relies in making a final

determination in an administrative review under § 1675(a), but those circumstances were not
Court No. 07-00366 Page 17

present in this case.8 The decision whether or not to conduct a full verification of the information

relevant to Venus was one that, under the relevant statutory provisions, is left to the

Department’s discretion. It is well established that agencies enjoy broad discretion in allocating

their investigative resources. See Torrington Co. v. United States, 68 F.3d 1347, 1351 (Fed. Cir.

1995) (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)). Plaintiffs’ reliance on Brake Drum,

23 CIT at 109 & n.36, 44 F. Supp. 2d at 250 & n.36, is unavailing. See Pls.’ Reply Br. 13. In

Brake Drum, the Court of International Trade observed that Commerce had verified fully the

respondents in the case whose margins were used to calculate rates for other, non-examined

respondents. Brake Drum, 23 CIT at 109 & n.36, 44 F. Supp. 2d at 250 & n.36 (concluding that

“Commerce did not err by not verifying the non-selected Respondents” and noting that

Commerce “never used unverified information to calculate the margins for the non-selected

Respondents” and instead based the non-selected respondents’ margins “upon the verified data of

the selected Respondents”). The case does not hold that Commerce lacks discretion to conduct a

8
Under § 1677m(i)(3), Commerce must verify all information upon which it relies in
making a final determination in an administrative review under § 1675(a) if:
(A) verification is timely requested by an interested party as defined in
section 1677(9)(C), (D), (E), (F), or (G) of this title, and
(B) no verification was made under this subparagraph during the 2
immediately preceding reviews and determinations under section 1675(a)
of this title of the same order, finding, or notice, except that this clause
shall not apply if good cause for verification is shown.
19 U.S.C. § 1677m(i)(3) (2006) (emphasis added). Although plaintiffs argue that they made a
request for full verification of Venus during the review, they concede that the request was
untimely for purposes of 19 U.S.C. § 1677m(i)(3). See Mem. in Supp. of Pls.’ Rule 56.2 Mot.
for J. upon the Agency R. 18, n.17. Plaintiffs’ request was made more than 100 days after the
publication of the notice of initiation of review. See Pls.’ Reply Br. 11 & n.9; Letter from Kelley
Drye Collier Shannon to Sec’y of Commerce 1 (Aug. 31, 2006) (Admin. R. Doc. No. 75).
Court No. 07-00366 Page 18

full verification of the data of one respondent but not another. For these reasons, the court must

sustain the Department’s decision to conduct a partial examination with respect to Venus.

III. CONCLUSION

The court concludes that the Department’s respondent selection decision was contrary to

law because it was grounded in an impermissible statutory construction. The court further

concludes that Commerce did not act contrary to law in deciding during the administrative

review not to conduct a full verification of the submitted information pertaining to Venus.

ORDER

Upon review of the Notice of Final Results and Final Partial Rescission of Antidumping

Duty Administrative Review: Stainless Steel Bar from India, 72 Fed. Reg. 51,595 (Sept. 10,

2007) (“Final Results”), the internal memorandum of the United States Department of

Commerce setting forth its respondent selection decision (“Respondent Selection

Memorandum”), Plaintiff’s Rule 56.2 Motion for Judgment upon the Agency Record (“Plaintiffs’

Motion”), Defendant’s Opposition to Plaintiffs’ Motion for Judgment upon the Agency Record,

and all papers and proceedings had herein, and after due deliberation, it is hereby

ORDERED that Plaintiffs’ Motion be, and hereby is, GRANTED IN PART and
DENIED IN PART; it is further

ORDERED that the Final Results, 72 Fed. Reg. 51,595, be, and hereby are, remanded to
Commerce for redetermination in accordance with this Opinion and Order; it is further

ORDERED that the respondent selection decision in the Final Results, 72 Fed.
Reg. 51,595, as set forth in the Respondent Selection Memorandum, and the resulting decision in
the Final Results to apply to the non-selected respondents an antidumping margin of 2.01% be,
and hereby are, set aside as contrary to law; it is further

ORDERED that Commerce, in an interim remand redetermination, shall inform the court
whether it will conduct individual examinations of, and calculate individual weighted-average
Court No. 07-00366 Page 19

dumping margins for, Isibars Limited, Grand Foundry, Ltd., Sindia Steels Limited, Snowdrop
Trading Pvt. Ltd., Facor Steels, Ltd., and/or Mukand Ltd. and, if Commerce will proceed to do
so, also shall inform the court of the time period that Commerce will require to complete such
examinations and issue an amended final determination of the results of the administrative
review that sets forth weighted-average dumping margins for the individually-examined
respondents; it is further

ORDERED that Commerce shall submit its interim remand redetermination within thirty
(30) days of the date of this Opinion and Order; it is further

ORDERED that plaintiffs shall have twenty (20) days from the date of submission of the
interim remand results in which to submit to the court comments on the interim remand
redetermination; it is further

ORDERED that the decision by Commerce during the administrative review not to
conduct a full verification of the submitted information pertaining to Venus be, and hereby is,
affirmed; and it is further

ORDERED that plaintiffs’ motion for oral argument, as filed on October 13, 2009, be,
and hereby is, DENIED.

/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge

Dated: November 23, 2009
New York, New York