Slip Op. 11-61
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
[Ordering United States Department of Commerce to conduct an individual examination of, at a
minimum, two previously unexamined respondents and to redetermine margins for six
respondents in an administrative review of an antidumping duty order on stainless steel bar from
India]
Dated: May 26, 2011
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”) are
domestic producers of stainless steel bar who brought this action to contest the final
determination (“Final Results”) in an administrative review of an antidumping duty order on
Court No. 07-00366 Page 2
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”). Before the court is the response of the
International Trade Administration, United States Department of Commerce (“Commerce” or the
“Department”) to the court’s order in Carpenter Tech. Corp. v. United States, 33 CIT __, 662
F. Supp. 2d 1337 (2009) (“Carpenter”). Interim Remand Determination in Carpenter Tech.
Corp. et. al. v. United States, Court No. 07-00366 (“Interim Remand Determination”). In
Carpenter, the court held contrary to law the Department’s decision to examine individually only
two respondents, Bhansali Bright Bars Pvt., Ltd. (“Bhansali”) and Venus Wire Industries Pvt.,
Ltd. (“Venus”), of eight respondents in the administrative review. Carpenter, 33 CIT at __,
662 F. Supp. 2d at 1347. The court concluded that this decision “was based on a statutory
construction at odds with the clearly expressed intent of Congress” because “Commerce
implicitly construed [19 U.S.C.] § 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.” Id. at __, 662 F. Supp. 2d at 1342-43 (citing Tariff Act of
1930 (“Tariff Act” or the “Act”), § 777A(c)(2), 19 U.S.C. § 1677f-1(c)(2) (2006)).
The court ordered in Carpenter that Commerce report to the court in an interim decision
“whether it will conduct individual examinations of, and calculate individual weighted-average
dumping margins for, Isibars Limited, Grand Foundry, Ltd., Sindia Steels Limited, Snowdrop
Trading Pvt. Ltd., Facor Steels, Ltd., and/or Mukand Ltd.,” the respondents the Department
declined to examine individually in the review. Id. at __, 662 F. Supp. 2d at 1347. The court
further ordered that Commerce, if it decides to proceed with individual examinations, “also shall
Court No. 07-00366 Page 3
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 . . . .” Id.
at __, 662. F. Supp. 2d at 1347-48.
The response to the court’s order, titled “Interim Remand Determination,” announces that
Commerce will examine individually on remand two additional respondents, Sindia Steels
Limited (“Sindia”) and Snowdrop Trading Pvt. Ltd. (“Snowdrop”), which Commerce chose
because these two respondents, of the six respondents who remain unexamined, account for the
two largest volumes of exports of subject merchandise to the United States. Interim Remand
Determination 26. Commerce further informed the court that it will require a minimum of 365
days to complete a review of Sindia and Snowdrop and issue amended final results. Id. at 2.
Commenting to the court on the Interim Remand Determination, plaintiffs raise two
objections. They argue, first, that Commerce improperly refused to rescind the review as to
Grand Foundry, Ltd. (“Grand Foundry”), Sindia, and Snowdrop despite plaintiffs’ having
notified the Department, in comments on a draft version of the Interim Remand Determination
(the “Draft Results of Redetermination”) that plaintiffs were withdrawing their request for
review of these three respondents. Pls.’ Comments on Commerce’s Interim Remand
Determination Pursuant to Ct. Remand (Slip Op. 09-134) 1-3 (“Pls.’ Comments”). Second, they
argue that the Department’s proposal to examine on remand only Sindia and Snowdrop, rather
than all unexamined respondents, is inconsistent with the court’s ruling in Carpenter, not
supported by substantial evidence, and otherwise not in accordance with law. Id. at 4-7.
Also before the court is defendant’s motion for entry of judgment. Def.’s Mot. for Entry
of Final J. (“Def.’s Mot.”). Defendant argues that it is appropriate that the court enter a
Court No. 07-00366 Page 4
judgment to conclude this litigation rather than issue another remand order, regardless of how
the court rules on the Interim Remand Determination.
With respect to plaintiffs’ objection that the Department unlawfully refused to allow
plaintiffs’ withdrawal of the request for review of Grand Foundry, Sindia, and Snowdrop, the
court concludes that plaintiffs are not entitled to relief. Second, the court decides that plaintiffs
have waived any challenge to the Department’s decision to examine individually on remand only
Sindia and Snowdrop. Plaintiffs did not exhaust their administrative remedies as to any such
challenge, having failed to object to the subject decision in response to the Department’s request
for comment on the Draft Results of Redetermination, and the futility exception to the
exhaustion requirement is unavailable in the circumstances of this case. As a consequence of the
unexcused failure to exhaust administrative remedies, plaintiffs are entitled only to a judicial
remedy by which Commerce will conduct individual examinations of Sindia and Snowdrop and
redetermine the weighted-average dumping margins for all respondents other than Bhansali and
Venus. Finally, ruling on defendant’s motion, the court declines to order judgment at this time.
The court orders Commerce to complete the administrative review on remand and submit
amended final results for the court’s review prior to publication.
I. BACKGROUND
Background information is presented in Carpenter. 33 CIT at __, 662 F. Supp. 2d
at 1339-40. Additional background is included below as a summary and to address events that
have occurred since Carpenter was decided.
During the review, Commerce examined individually only the two highest-volume
exporters/producers, Bhansali and Venus. Id. at __, 662 F. Supp. 2d at 1339. Because it
Court No. 07-00366 Page 5
determined a de minimis margin for Venus in the Final Results, Commerce, pursuant to its
practice, assigned the margin it determined for Bhansali, 2.01%, to the six respondents that were
not selected for individual examination, which were Facor Steels, Ltd. (“Facor”), Grand
Foundry, Isibars Limited (“Isibars”), Mukand Ltd. (“Mukand”), Sindia, and Snowdrop. Id.
at __, 662 F. Supp. 2d at 1339 n.1, 1339-40.
On March 30, 2010, Commerce released to plaintiffs the Draft Results of
Redetermination and invited comment. Interim Remand Determination 26. In their written
response, plaintiffs expressly declined to comment on the Draft Results of Redetermination at
that time, stating that “[w]hile reserving petitioners’ right to comment to the Court on the
Department’s conclusion of what constitutes a large number of respondents, petitioners hereby
withdraw their request for review of Grand Foundry, Ltd. (‘Grand Foundry’), Sindia, and
Snowdrop . . . .” Letter from Pls. to Sec’y of Commerce 2 (Apr. 6, 2010) (Admin. R. Doc.
No. 4020) (“Pls.’ Withdrawal”). The request for review that plaintiffs sought to withdraw was
the only remaining request for review of any of those three respondents. 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, 10,152
(Mar. 7, 2007). In the Interim Remand Determination, Commerce refused to recognize the
withdrawal of plaintiffs’ review request, reasoning that “because the Department is not
conducting an administrative review at this time, this request is inappropriate.” Interim Remand
Determination 27.
On April 22, 2010, defendant filed the Interim Remand Determination with the court.
Interim Remand Determination. On the same date, defendant filed its motion that the court enter
Court No. 07-00366 Page 6
a judgment either affirming or rejecting the Interim Remand Determination. Def.’s Mot. On
May 12, 2010, plaintiffs filed comments objecting to the Interim Remand Determination and
requesting another remand. Pls.’ Comments. On June 11, 2010, defendant responded to those
comments. Def.’s Resp. to Pls.’ Comments on Commerce’s Interim Remand Determination
(“Def.’s Resp.”). After obtaining leave from the court, plaintiffs replied to the defendant’s
response on June 28, 2010. Pls.’ Reply to Def.’s Resp. Comments on Commerce’s Interim
Remand Determination (“Pls.’ Reply”).
After a telephone conference with the parties on February 7, 2011, the court ordered the
parties to file a joint status report with the court within forty-five days “on the results of
discussions between the parties concerning the possible settlement of the case.” Order (Feb. 7,
2011), ECF No. 71. In the joint response to the order, which defendant filed on March 25, 2011,
the parties informed the court that despite considerable discussion they have been unable to
reach a settlement and requested “that the Court issue a decision regarding the remand
determination filed by the Department of Commerce, and an order responding to the motion for
entry of final judgment filed by the United States.” Joint Status Report (Mar. 25, 2011), ECF
No. 73.
II. DISCUSSION
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980
(“Customs Courts Act”), 28 U.S.C. § 1581(c) (2006), pursuant to which the court reviews
actions commenced under section 516A of the Tariff Act, 19 U.S.C. § 1516a, including an action
contesting the final results of an administrative review that Commerce issues under section 751
of the Tariff Act, 19 U.S.C. § 1675(a). Upon judicial review, the court “shall hold unlawful any
Court No. 07-00366 Page 7
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).
Below, the court first considers plaintiffs’ objection that the Interim Remand
Determination unlawfully refused to recognize plaintiffs’ withdrawal request pertaining to the
review of Grand Foundry, Sindia, and Snowdrop. The court next considers the question of
whether plaintiffs may now bring a challenge to the Department’s decision, announced in the
Interim Remand Determination, to conduct an individual examination of Sindia and Snowdrop
and of none of the other unexamined respondents, i.e., Facor, Grand Foundry, Isibars, and
Mukand. Plaintiffs attempt to bring this challenge in their comment submission to the court,
which states that “Commerce’s decision to review fewer than all six of the previously non-
examined respondents was not supported by substantial evidence and adequate reasoning and is
not in accordance with law.” Pls.’ Comments 4. This question requires the court to decide, first,
whether plaintiffs have exhausted their administrative remedies on their challenge to the decision
to examine only Sindia and Snowdrop and, if not, whether any exception to the exhaustion
requirement applies in this circumstance. Finally, the court considers defendant’s motion for
judgment.
A. Commerce Acted Lawfully in Refusing to Recognize Plaintiffs’ Withdrawal of the Review
Request for Grand Foundry, Sindia and Snowdrop
Plaintiffs’ first argument in opposition to the Interim Remand Determination is that
Commerce unlawfully refused to rescind the review as to Grand Foundry, Sindia, and Snowdrop
upon plaintiffs’ withdrawal of their request for review of these respondents. The court does not
find merit in this argument.
Court No. 07-00366 Page 8
Plaintiffs’ withdrawal request cites the Department’s regulation, 19 C.F.R. § 351.213(d)
(2010), under which Commerce may rescind a review as to a respondent when the only request
for review of that respondent has been withdrawn within ninety days of the date on which
Commerce initiated the administrative review. See Pls.’ Withdrawal. The regulation provides
Commerce discretion to extend the ninety-day time period “if the Secretary decides that it is
reasonable to do so.” 19 C.F.R. § 351.213(d)(1). Commerce denied the withdrawal request due
to timing, concluding that “because the Department is not conducting an administrative review at
this time, this request is inappropriate.”1 Interim Remand Determination 27.
Plaintiffs argue that “Commerce has the authority to extend the deadline for withdrawal
requests and based on that authority can rescind a review at any time.” Pls.’ Comments 2 (citing
19 C.F.R. § 351.213(d)(1)). Plaintiffs are correct that the regulation afforded Commerce broad
discretion, under which Commerce, at least arguably, could have included in its Interim Remand
Determination a decision to accept the withdrawal of plaintiffs’ request for the review of Grand
Foundry, Sindia, and Snowdrop. But plaintiffs offer no convincing argument why the law
required Commerce to do so. Plaintiffs assert that “[b]ecause the Court has remanded this case
back to Commerce on the issue of respondent selection, the status of this case is essentially
equivalent to that of the beginning stages of a review where Commerce begins its respondent
selection process,” id., and that “[a]lthough Commerce may not be reviewing a specific company
1
Plaintiffs’ withdrawal request was made on April 6, 2010, four years after the review
was initiated and two and a half years after the review was completed. Initiation of Antidumping
& Countervailing Duty Admin. Reviews & Deferral of Admin. Reviews, 71 Fed. Reg. 17,077
(Apr. 5, 2006); 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).
Court No. 07-00366 Page 9
at this time, it is nevertheless conducting an administrative review as a result of the Court’s
remand,” id. at 2-3.
The court does not agree with either of plaintiffs’ assertions. The administrative review
already has been conducted, and only certain aspects of that review, as reflected in the Final
Results and identified in Carpenter, are the subject of the remand proceeding in this litigation.
In the administrative review culminating in the Final Results, Commerce examined individually,
and determined margins for, the two highest-volume exporters/producers, Bhansali and Venus.
Those two margins, which were not challenged judicially, are not at issue in this case. In the
Interim Remand Determination, Commerce informed the court that it will examine individually
two additional exporters/producers who were respondents in the review, which it also has
selected based on export volume. The Department provided this answer in response to the
court’s direction in Carpenter to “inform the court whether it will conduct individual
examinations of, and calculate individual weighted-average dumping margins for, Isibars
Limited, Grand Foundry, Ltd., Sindia Steels Limited, Snowdrop Trading Pvt. Ltd., Facor Steels,
Ltd., and/or Mukand Ltd.” Carpenter, 33 CIT at __, 662 F. Supp. 2d at 1347 (emphasis added).
Thus, the questions the remand proceeding is required to answer are which, if any, of the
previously unexamined respondents already in the review will be individually examined and
what margins will be assigned to the respondents other than Bhansali and Venus, not the
question of which parties will be respondents in the review. In sum, plaintiffs’ argument that
Commerce was required to accept the withdrawal of the review request is grounded in a
misinterpretation of the scope of the remand proceeding. The court concludes that Commerce
Court No. 07-00366 Page 10
did not abuse its discretion in rejecting plaintiffs’ withdrawal of the request to review Grand
Foundry, Sindia, and Snowdrop.
B. Plaintiffs Failed to Exhaust their Administrative Remedies on their Objection to the
Department’s Decision on Remand to Examine Individually Only Sindia and Snowdrop
In section 301 of the Customs Courts Act, Congress directed that the Court of
International Trade “where appropriate, require the exhaustion of administrative remedies.”
28 U.S.C. § 2637. In litigation contesting antidumping determinations, the exhaustion
requirement applies to a situation such as that existing in this case, in which the Department
invited a party to submit comments on draft remand results. Mittal Steel Point Lisas Ltd. v.
United States, 548 F.3d 1375, 1383 (Fed. Cir. 2008); AIMCOR v.United States, 141 F.3d 1098,
1111-12 (Fed. Cir. 1998).
The record in this case discloses that plaintiffs made no comments on the Draft Results of
Redetermination other than their informing Commerce of the withdrawal of the request for
review of Grand Foundry, Sindia, and Snowdrop. Commerce sent plaintiffs a letter dated
March 30, 2010, soliciting written comments on the Draft Results of Redetermination, which
were attached to the letter. Letter from Program Manager, AD/CVD Enforcement Office 1 to All
Interested Parties (Mar. 30, 2010) (Admin. R. Doc. No. 4005). Plaintiffs’ submission in
response did not object to the Department’s proposal to conduct individual examinations of only
Sindia and Snowdrop. What is more, plaintiffs told Commerce that their submission was not to
be considered a comment on the Draft Results of Redetermination. In informing Commerce that
“[w]hile reserving petitioners’ right to comment to the Court on the Department’s conclusion on
what constitutes a large number of respondents, petitioners hereby withdraw their request for
Court No. 07-00366 Page 11
review of Grand Foundry, Ltd. (‘Grand Foundry’), Sindia, and Snowdrop,” Pls.’ Withdrawal 2,
plaintiffs explained that “[g]iven that this request could potentially alter the Department’s
remand results, and given that the Department was granted an extension of time to file its remand
results, petitioners will wait to comment on the Department’s draft remand results until after the
Department responds to this request,” id. at 4 (emphasis added). Commerce did not respond to
that request prior to issuing the Interim Remand Determination. Nor could plaintiffs reasonably
have expected Commerce to do so. Because plaintiffs filed their response to the Department’s
request for comments on April 6, 2010, the due date specified in the comment request, and did
not seek an extension of the due date, there was no apparent way plaintiffs could have waited
until after the Department responded to their notice of withdrawal of their review request to
comment to the Department on the Draft Results of Redetermination.
Commerce went forward with the proposal stated in the Draft Remand Redetermination,
expressly noting that plaintiffs had declined to comment on it. This draft was in all material
respects identical to the Interim Remand Determination, except that the latter includes a
paragraph at the end stating: (1) that the Department released its draft to plaintiffs (“Petitioners”)
with comments due on April 6, 2010; (2) that rather than file substantive comments, Petitioners
instead filed a letter stating that they are reserving their right to comment to the Court on the
Department’s conclusion of what constitutes a large number of respondents; (3) that Petitioners
withdrew their request for review of Grand Foundry, Sindia, and Snowdrop; (4) that Petitioners’
withdrawal request is inappropriate “because the Department is not conducting an administrative
review at this time”; and (5) that “because Petitioners have not submitted any additional
Court No. 07-00366 Page 12
comments on the draft interim remand determination, there are no additional issues to address.”
Interim Remand Determination 26-27.
In summary, the record facts relevant to the question of exhaustion are that plaintiffs
were invited to comment on the Draft Remand Redetermination, that plaintiffs declined to do so,
and that the Department presented the previously-proposed decision to examine only Sindia and
Snowdrop to the court, in final form, in the Interim Remand Determination. On these facts, the
court concludes that plaintiffs failed to exhaust their administrative remedies on their current
challenge, as stated in their comment to the court, to the decision to examine on remand only
Sindia and Snowdrop rather than all six of the respondents who have not been examined
individually.
Plaintiffs argue that they did not fail to exhaust their administrative remedies,
maintaining that “[c]ontrary to the government’s claim, Commerce’s Interim Remand
Determination did not raise a new legal issue that had not previously been briefed by Plaintiffs.”
Pls.’ Reply 2. They direct attention to a brief they submitted to the court on October 9, 2009,
prior to the court’s decision in Carpenter. Id.; Letter (Sept. 9, 2009), ECF No. 39; Pls.’ Br.
Regarding Commerce’s Decision Not to Conduct an Individual Review of All Eight
Respondents (“Pls.’ Supp. Br.”). The cited brief argued that Commerce exceeded its authority
under section 777A(c)(2) of the Tariff Act, 19 U.S.C. § 1677f-1(c)(2), in declining to conduct an
individual examination of all eight respondents in the administrative review. Pls.’ Supp. Br. 3-5.
Plaintiffs’ citing to arguments made in the October 9, 2009 brief does not address the
source of the exhaustion problem in this case, which is the submission plaintiffs made to the
Department in response to the Draft Results of Redetermination. That submission fails to
Court No. 07-00366 Page 13
maintain plaintiffs’ previous litigation position and addresses only plaintiffs’ withdrawal of the
request for review of Grand Foundry, Sindia, and Snowdrop. See Pls.’ Withdrawal. Plaintiffs
abandoned the litigation position they had taken up to that time–that Commerce unlawfully
failed to conduct individual examinations of all respondents in the administrative review–when
they failed to assert it in opposition to the proposed decision, stated in the Draft Results of
Redetermination, to examine individually on remand only Sindia and Snowdrop. See Mittal
Steel Point Lisas Ltd., 548 F.3d at 1384 (concluding that a party failed to raise an issue “at the
appropriate time on remand and thus abandoned its argument by failing to exhaust its
administrative remedies before Commerce”) (citing AIMCOR, 141 F.3d at 1111-12). The
April 6, 2010 submission to the Department could have, but did not, argue that if Commerce
refused to allow the withdrawal of the review request, it must examine individually all six
remaining unexamined respondents. Plaintiffs also could have argued to the Department, but did
not, that Commerce must examine individually all respondents for which a request for review
still would be pending, i.e., Isibars, Facor, and Mukand, should the Department allow withdrawal
of the request for review of Grand Foundry, Sindia, Snowdrop.2 The most that can be said is that
plaintiffs took a position before the Department–specifically, the position that they should be
2
Plaintiffs state in their comments to the court that in withdrawing their request for the
review of Grand Foundry, Ltd., Sindia Steels Limited (“Sindia”) and Snowdrop Trading Pvt.
Ltd. (“Snowdrop”) they “requested that Commerce conduct an individual examination of the
remaining three companies.” Pls.’ Comments on Commerce’s Interim Remand Determination
Pursuant to Ct. Remand (Slip Op. 09-134) 1-2. In so stating to the court, plaintiffs
mischaracterize their April 6, 2010 submission to the International Trade Administration, United
States Department of Commerce (“Commerce” or the “Department”). Nowhere in that
submission did plaintiffs argue that Commerce, if accepting the withdrawal request, should or
must conduct an individual examination of Isibars Limited, Facor Steels, Ltd., and/or Mukand
Ltd. See Letter from Pls. to Sec’y of Commerce (Apr. 6, 2010) (Admin. R. Doc. No. 4020).
Court No. 07-00366 Page 14
allowed to withdraw their request for review of Grand Foundry, Sindia, and Snowdrop–that was
inconsistent with the proposed decision to examine Sindia and Snowdrop individually. Even
were the court to speculate from plaintiffs’ April 6, 2010 submission to Commerce that plaintiffs
disagreed with that proposed decision, despite plaintiffs’ having failed to so state, the court could
not reasonably infer that plaintiffs’ previous legal position, rather than a presumed right to
withdraw the review request, was the basis for any disagreement.
Plaintiffs argue in the alternative that the court should excuse any failure to exhaust
administrative remedies because it would have been futile for plaintiffs to raise again at the
agency level an argument Commerce already had rejected. Pls.’ Reply 4 (arguing that “it would
also have been futile for Plaintiffs to once again explain why Commerce’s decision for not
reviewing all eight respondents was not within [the Department’s] statutory authority.”).
Plaintiffs make the related arguments that “if the Department ha[d] properly withdrawn the
request for the review of the three respondents, additional comments by Plaintiffs would have
been unnecessary,” id. at 4-5, and that “[b]ecause the Department did not respond to Plaintiffs’
withdrawal request until it filed its Interim Remand Determination on April 22, 2010, Plaintiffs
properly filed their substantive comments at that time,” id. at 5.
To qualify for the futility exception, which is to be applied narrowly, “a party must
demonstrate that it ‘would be required to go through obviously useless motions in order to
preserve [its] rights.’” Mittal Steel Point Lisas Ltd., 548 F.3d at 1384 (quoting Corus Staal BV v.
United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007)) (alterations in original). Because an
agency remains free to modify its current position, the mere fact that an agency was unlikely to
do so does not excuse the requirement to exhaust. Corus Staal BV, 502 F.3d at 1380. In this
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case, Commerce rejected in the Final Results plaintiffs’ argument that it was required to examine
individually all eight respondents, but nevertheless it requested comment on the Draft Results of
Redetermination, which proposed, in effect, that the Department issue amended final results
setting forth individual margins for four of the eight respondents, Bhansali, Sindia, Snowdrop,
and Venus. In soliciting comment, Commerce did not indicate that its determination to examine
Sindia and Snowdrop was anything other than a proposal on which plaintiffs could comment.
Had plaintiffs commented in opposition to that proposal, Commerce could have changed its
position, in any of a number of ways, before filing the Interim Remand Determination with the
court.
The court also disagrees with plaintiffs’ argument that the futility exception applies
because advancing plaintiffs’ litigation position to the agency “would have been unnecessary”
had Commerce rescinded the review as to Sindia, Snowdrop, and Grand Foundry in response to
plaintiffs’ withdrawal request. Pls.’ Reply 4-5. Even had Commerce decided to accept the
withdrawal of the review request for Grand Foundry, Sindia, and Snowdrop in response to
plaintiffs’ April 6, 2010 submission to the Department, still unresolved would have been the
issue of which of the remaining unexamined respondents, i.e., Facor, Isibars, and Mukand,
would be examined individually on remand. As noted previously, plaintiffs did not make the
point in their April 6, 2010 submission that Commerce, if accepting the withdrawal request,
should examine individually these three remaining unexamined respondents. The court therefore
must reject the assertion that acceptance of the withdrawal request would have made it
unnecessary that plaintiffs advance their litigation position before the agency. Even were that
assertion correct, plaintiffs’ futility argument would be unavailing. The futility exception
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excuses failure to advance a litigation position when doing so would have been “obviously
useless,” Corus Staal BV, 502 F.3d at 1379, not when arguing that position would be rendered
unnecessary by success on another argument.
Plaintiffs’ third argument, that “[b]ecause the Department did not respond to Plaintiffs’
withdrawal request until it filed its Interim Remand Determination on April 22, 2010, Plaintiffs
properly filed their substantive comments at that time,” is untenable. Pls.’ Reply 5. As noted
above, plaintiffs filed their response to the Department’s comment request on the due date
specified in that request. Even had Commerce decided to respond separately to the withdrawal
request (which it was under no obligation to do), plaintiffs, having left themselves no time, could
not reasonably have expected that they would have an opportunity to file additional comments to
the Department.
For the various reasons discussed above, the court concludes that plaintiffs failed to
exhaust their administrative remedies and that the futility exception to the exhaustion
requirement does not apply in the circumstances presented here. Plaintiffs raised no objection
before the Department to the proposed decision to examine individually, and calculate individual
weighted-average margins for, Sindia and Snowdrop. Because of the failure to exhaust, which
the court declines to excuse on the ground of futility, plaintiffs have waived any objection to that
decision as submitted to the court in the Interim Remand Determination. As a consequence,
plaintiffs are not entitled to a remedy under which Commerce, on remand, would examine
individually respondents other than, or in addition to, Sindia and Snowdrop.
Court No. 07-00366 Page 17
C. The Court Will Deny Defendant’s Motion for Entry of Judgment and Issue a Second Remand
Order in this Proceeding
Defendant moves pursuant to USCIT Rule 54 that the court enter final judgment in this
case instead of issuing a remand order. Defendant argues, first, that Commerce has explained on
remand why its original determination to examine two respondents was reasonable, and that if
the court agrees with that explanation, it should enter final judgment. Def.’s Mot. 1, 4-5.
Second, defendant argues that if, instead, the court concludes that Commerce must examine
“some additional number of respondents,” it still should enter judgment because “all issues in the
case have been resolved,” i.e., “there are no margin calculations or adjustments to recalculate,
practices to adjust or reconsider, or agency legal conclusions to explain.” Id. at 2. In either
event, defendant argues, “the Court will have granted plaintiffs all the relief requested in their
complaint and all of the rights of the parties would be preserved.” Id. Finally, defendant states
in support of its motion that it “files this motion because we respectfully object to the Court’s
requirement that Commerce file its remand determination as an ‘interim’ remand determination.”
Id. at 1.
Although citing various decisions of the Court of International Trade which it believes
support its motion, defendant cites no statute or binding precedent under which the court is
required to enter judgment in this circumstance.3 Nor is the court aware of any reason why it
3
Defendant cites two cases in which the court has entered judgment when Commerce had
not yet complied with the court’s decision, but neither case indicates that the court must or
should enter judgment here. Def.’s Mot. for Entry of Final J. 3-4 (citing Gilmore Steel Corp.,
Oregon Steel Mills Div. v. United States, 11 CIT 684, 672 F. Supp. 1459 (1987), rev’d sub nom,
Oregon Steel Mills Inc. v. United States, 862 F.2d 1541 (Fed. Cir. 1988); Trustees in Bankruptcy
of North American Rubber Thread Co. v. United States, 32 CIT __, 558 F. Supp. 2d 1367 (2008)
(continued...)
Court No. 07-00366 Page 18
would be required by law to enter judgment at this time. Moreover, as discussed below, the
reasons defendant puts forth as to why the court, in its discretion, should enter judgment at this
time are unconvincing, and other considerations dictate that it would be inappropriate to do so.
Defendant’s first argument, which is implicitly premised on the court’s affirming the
Final Results on new reasoning as stated in the Interim Remand Determination, is not persuasive.
Contrary to defendant’s implied premise, the Interim Remand Determination does not submit for
the court’s consideration a decision by Commerce on remand not to examine individually any
respondents other than two already examined.4 See Interim Remand Determination 1 (“In
accordance with the Court’s order, the Department has determined to calculate individual
dumping margins for an additional two of the eight respondents that were subject to requests for
review in the 2005-2006 administrative review.”), 26 (“The Department has concluded . . . that it
3
(...continued)
(“NART”)). These cases were not brought under 19 U.S.C. § 1516a (2006), as was the present
case, and they involved situations in which no review had been conducted prior to the initiation
of the litigation. Gilmore, 11 CIT at 684, 672 F. Supp. at 1459; NART, 32 CIT at __ 558
F. Supp. 2d at 1368.
4
The Interim Remand Determination expresses Commerce’s disagreement with the
holding in Carpenter Tech. Corp. v. United States, 33 CIT __, 662 F. Supp. 2d 1337, 1347
(2009), see Interim Remand Determination in Carpenter Tech. Corp. et. al. v. United States,
Court No. 07-00366, at 6, but it does not include a remand decision under which no additional
respondents would be examined individually. The Opinion and Order issued in Carpenter,
although setting aside as unlawful the respondent selection decision in the final results of the
review based on the Department’s erroneous construction of the statute, under which any number
larger than two necessarily would be considered a “large number” within the meaning of
19 U.S.C. § 1677f-1(c)(2) (2006), did not expressly preclude a remand redetermination that
attempted to justify the original respondent selection decision on different reasoning. See
Carpenter, 33 CIT at __, 662 F. Supp. 2d at 1347. However, the court’s general discussion in
Carpenter strongly suggested that any such decision was unlikely to be affirmed.
Court No. 07-00366 Page 19
can reasonably review the two additional companies accounting for the largest volume of exports
to the United States during the period of review, Snowdrop and Sindia.”).
Defendant’s second argument, which submits that no margins are left to be determined in
this case, is factually wrong and based on an erroneous characterization of plaintiffs’ claim in
this case. Plaintiffs contested as contrary to law the Department’s assignment of Bhansali’s
2.01% margin to the unexamined respondents, i.e., Sindia, Snowdrop, Facor, Grand Foundry,
Isibars, and Mukand. Compl. ¶¶ 10, 12. In Carpenter, the court set aside the assignment of the
2.01% margin to the unexamined respondents, and the Interim Remand Determination does not
inform the court how Commerce intends to assign margins to the four respondents it would not
examine individually on remand (i.e., Facor, Grand Foundry, Isibars, and Mukand).5 As a result,
the court’s affirmance of the Interim Remand Determination through an entry of judgment would
not adjudicate fully the claim plaintiffs have brought in this case. Therefore, entry of judgment
at this time would not be appropriate.
Defendant’s third point, that it “objects to the Court’s requirement that Commerce file its
remand determination as an ‘interim’ remand determination,” is misguided. Def.’s Mot. 1. The
court did not exceed its discretion in issuing its order of remand in Carpenter. See Customs
Courts Act, § 301, 28 U.S.C. § 2643(c)(1).
5
The court does not hold or imply that Commerce erred in not so informing the court.
The Opinion and Order in Carpenter did not direct Commerce to address this point. The court is
aware that Commerce, as a matter of practice, assigns to unexamined respondents in an
administrative review a simple average of the margins assigned to examined respondents,
excluding de minimis margins and margins based on facts otherwise available. However, this
practice is not required by law, and it remains to be seen how Commerce will assign margins to
unexamined respondents in this case.
Court No. 07-00366 Page 20
For the reasons the court has discussed, the appropriate remedy at this time is a second
remand order, not the entry of judgment. In the full remand proceeding, Commerce, at a
minimum, must conduct individual examinations of, and assign individual margins to, Sindia and
Snowdrop.6 It also must assign margins to Facor, Grand Foundry, Isibars, and Mukand by a
lawful method. The court sets a time period for Commerce to complete this task and prepare
amended final results for the court’s consideration.
Finally, in crafting a second remand order, the court must “secure the just, speedy, and
inexpensive determination” of this “action and proceeding.” USCIT R. 1. This goal will be
thwarted if these proceedings are permitted to waste the resources of the Department or of Sindia
and Snowdrop, parties who are not before the court but whose participation in the further
proceedings is essential. Plaintiffs’ attempt to withdraw its request for review of Grand Foundry,
Sindia, and Snowdrop indicates to the court that plaintiffs may be opposed to the only remedy to
which they are now entitled, i.e., amended final results that assign individual margins to Sindia
and Snowdrop and redetermined margins for Facor, Grand Foundry, Isibars, and Mukand. The
court concludes from these circumstance that plaintiffs must decide within a short time period
following issuance of this Opinion and Order whether they choose to receive the remedy to
which they are entitled rather than seek dismissal of this action pursuant to USCIT
Rules 41(a)(2) and 56.2(g). The court will allow twenty-one days for plaintiffs to make this
6
The Department retains the discretion to conduct on remand individual examinations of
previously-unexamined respondents in addition to Sindia and Snowdrop but, due to plaintiffs’
failure to exhaust administrative remedies, is under no obligation to do so. The court will have
the opportunity to review the lawfulness of any decision to select for individual examination
previously-unexamined respondents in addition to Sindia and Snowdrop when it receives the
results of the second remand order.
Court No. 07-00366 Page 21
decision. Absent a compelling justification, the court will not order voluntary dismissal of this
action after that time.
Upon considering the Interim Remand Determination, the court decides not to grant
Commerce the entire 365 day period that it requested. This period of time, which is the statutory
period for completion of an administrative review, 19 U.S.C. § 1675(a)(3)(A), is excessive for
this remand because Commerce will omit some procedural steps of a review, including, in
particular, solicitation of review requests. The court, in its discretion, will allow 300 days from
the date of this Opinion and Order for the submission of the results of the remand.7 The court
will consider extending this time only upon a motion showing good cause. Because the remand
proceeding is being conducted under the court’s jurisdiction, the court’s permission is required
for any such extension. As a result, the ordinary statutory provisions for extensions of time to
conduct a review do not apply to the remand conducted pursuant to this Opinion and Order.
III. CONCLUSION
Plaintiffs, having failed to exhaust their administrative remedies, are entitled to a remedy
under which the Department would conduct, at a minimum, individual examinations of Sindia
and Snowdrop and issue, under the court’s jurisdiction, amended final results of the
administrative review that assign individual margins to Sindia and Snowdrop and redetermined
margins to Facor, Grand Foundry, Isibars, and Mukand.
7
The respondent selection process phase of the administrative review consumed sixty-
three days. Carpenter, 33 CIT at __, 662 F. Supp. 2d at 1339 (indicating that the review was
initiated on April 5, 2006 and that respondent selection was completed on June 7, 2006).
Court No. 07-00366 Page 22
ORDER
Upon review of the 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”), the Interim Remand Determination in Carpenter Tech. Corp. et. al. v. United
States, Court No. 07-00366 (“Interim Remand Determination”), and all other papers and
proceedings had herein, and after due deliberation, it is hereby
ORDERED that the parties shall consult with respect to possible dismissal of this action
and submit to the court, within twenty-one (21) days of the date on which this Opinion and Order
is filed, the outcome of their consultations and any motion or stipulation pertaining to voluntary
dismissal; it is further
ORDERED that, if this action is not dismissed pursuant to the above paragraph, the
International Trade Administration, United States Department of Commerce (“Commerce” or the
“Department”) shall submit for the court’s review a redetermination of the Final Results on
remand (“Second Remand Determination”) in which its calculates individual margins for, at a
minimum, Sindia Steels Limited and Snowdrop Trading Pvt. Ltd., and redetermined margins for
Isibars Limited, Grand Foundry, Ltd., Facor Steels, Limited, and Mukand Ltd.; it is further
ORDERED that Commerce shall submit the Second Remand Redetermination within
300 days of the date on which this Opinion and Order is filed; it is further
ORDERED that plaintiffs shall have thirty (30) days from the filing of the Second
Remand Redetermination in which to submit comments to the court; it is further
ORDERED that defendant shall have fifteen (15) days from the filing of plaintiffs’
comments to file comments; it is further
ORDERED that Commerce shall not publish amended final results for the administrative
review absent the direction of the court in a future order or judgment; and it is further
ORDERED that defendant’s motion for entry of final judgment be, and hereby is,
denied.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: May 26, 2011
New York, New York