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
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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
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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
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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.
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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
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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).
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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).
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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
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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