Slip Op. 07-18
UNITED STATES COURT OF INTERNATIONAL TRADE
CARPENTER TECHNOLOGY
CORPORATION,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 04-00508
UNITED STATES,
Defendant.
OPINION
[Plaintiff’s motion for judgment on the agency record denied; Commerce’s administrative
review results sustained.]
Dated: January 31, 2007
Kelley Drye Collier Shannon (Robin H. Gilbert) for the plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and
Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (Michael Panzera); and Office of Chief Counsel for Import
Administration, U.S. Department of Commerce (Ada E. Bosque), of counsel, for the
defendant.
Gordon, Judge: Plaintiff Carpenter Technology Corporation moves for judgment
upon the agency record pursuant to USCIT R. 56.2, challenging a decision by the
U.S. Department of Commerce (“Commerce”) to partially revoke the antidumping duty
order covering stainless steel bar from India. See Stainless Steel Bar from India,
69 Fed. Reg. 55,409, 55,411 (Dep’t of Commerce Sept. 14, 2004) (final results admin.
review) (“2004 Administrative Review”). The court has jurisdiction pursuant to
Court No. 04-00508 Page 2
Section 516a(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C.
§ 1516a(a)(2)(B)(iii) (2000),1 and 28 U.S.C. § 1581(c) (2000).
Commerce’s decision to partially revoke the antidumping order is supported by
substantial evidence and is otherwise in accordance with law. The court therefore
sustains Commerce’s administrative review final results and denies Plaintiff’s motion for
judgment on the agency record.2
I. Background
The Viraj Group is a collection of affiliated Indian exporters/producers of stainless
steel bar that includes Viraj Alloys, Ltd., Viraj Forgings, Ltd., and Viraj ImpoExpo, Ltd.
In two consecutive prior administrative reviews the Viraj Group received zero or
de minimis margins. Stainless Steel Bar From India, 67 Fed. Reg. 53,336 (Dep’t of
Commerce Aug. 15, 2002) (amended final results of administrative review)
(“2002 Administrative Review”); and Stainless Steel Bar From India, 68 Fed. Reg.
47,543 (Dep’t of Commerce Aug. 11, 2003) (final results of administrative review)
(“2003 Administrative Review”). Anticipating a third consecutive zero or de minimis
margin for the 2004 Administrative Review (meeting the revocation requirement under
19 C.F.R. § 351.222 (2004) that merchandise not be sold at less than normal value for a
period of at least three consecutive years), the Viraj Group requested partial revocation
of the antidumping duty order.
1
All further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of
the U.S. Code, 2000 edition.
2
In its motion for judgment on the agency record, Plaintiff also challenged Commerce’s
decision to collapse three foreign exporters/producers into a single entity for the
dumping analysis. In a separate opinion the court sustained Commerce’s collapsing
decision, holding that Plaintiff failed to exhaust its administrative remedies on this issue.
Carpenter Tech. Corp. v. United States, 30 CIT __, Slip Op. 06-147 (Oct. 5, 2006).
Court No. 04-00508 Page 3
Opposing this request, Plaintiff argued to Commerce that revocation was
impermissible because there had been no final determination of Viraj’s dumping
margins in the two consecutive prior reviews. Petitioner’s Public Case Brief at 5
(Pub. R. Doc. No. 219, Pl.’s Br. App. 3). Specifically, Plaintiff noted that it had
challenged the results of the two prior administrative reviews, and that one of the issues
challenged, collapsing the Viraj Group for the dumping analysis, would likely be
reversed, potentially requiring Commerce to reverse its previous findings of no dumping.
Id. at 2-4. Plaintiff also noted that the Court of International Trade had remanded the
collapsing issue to Commerce twice, and each time required Commerce to provide
additional justification for collapsing the Viraj Group. Id.
Plaintiff argued that the revocation regulation, 19 C.F.R. § 351.222 (2004),
prohibits Commerce from revoking an order “if there are claims or challenges directly
affecting the basis for revocation that have not been resolved with finality.” Id. at 5.
Plaintiff also cited Certain Corrosion-Resistant Carbon Steel Flat Products and Certain
Cut-to-Length Carbon Steel Plate from Canada, 65 Fed. Reg. 9,243, 9244-45 (Dept. of
Commerce Feb. 24, 2000) (final results admin. review) (“Carbon Steel”), an
administrative proceeding in which Commerce declined to revoke an antidumping duty
order because of a pending anti-circumvention investigation.
In the final results Commerce calculated a third consecutive zero/de minimis
dumping margin for the Viraj Group and partially revoked the antidumping duty order.
2004 Administrative Review, 69 Fed. Reg. at 55,411. Commerce addressed Plaintiff’s
revocation arguments as follows:
Court No. 04-00508 Page 4
We disagree with the petitioners that this action cannot be taken
before the litigation in previous segments has been concluded. It is not
the Department’s policy to delay granting revocation because of pending
court appeals. [See, e.g., Certain Fresh Cut Flowers From Colombia, 59
Fed. Reg. 15,159, 15,166 (Dept. of Commerce Mar. 31, 1994) (final
results admin review); Color Television Receivers from the Republic of
Korea; 61 Fed. Reg. 4,408, 4,414 (Dept. of Commerce Feb. 6, 1996) (final
results admin review)]. While we acknowledge that the CIT has remanded
a portion of one of our prior decisions, it has not yet issued a ruling on our
most recent remand redetermination. Moreover, our position in that
litigation remains unchanged – namely that the final results were
supported by substantial evidence and are fully in accordance with U.S.
antidumping law. We note that, even after the remand redetermination,
Viraj’s margin remains de minimis. See Final Results of Redetermination
Pursuant to Remand: Slater Steels Corporation v. United States, Slip Op.
04-22 (CIT March 8, 2004), (May 7, 2004). In any event, as the CIT has
not rendered a final opinion in the cases under litigation that reverses the
Department’s decisions, we have continued to rely on the margins
determined in the segments at issue because we consider them to be
valid and reliable.
We also disagree with the petitioners that the circumstances here
are similar to those involving pending anti-circumvention claims. As part of
its revocation analysis under 19 CFR 351.222(b)(2)(i), the Department
must determine whether the continued application of the antidumping
order is otherwise necessary to offset dumping. It is entirely reasonable for
the Department to consider a company’s commercial behavior under the
existing antidumping order (and any attempts to evade that antidumping
order) in the context of this analysis. In contrast, here we have found that
Viraj exported subject merchandise to the United States in commercial
quantities for three years, and no party to the proceeding has alleged that
Viraj has attempted to circumvent the antidumping order. Thus, we have
no reason before us to question that Viraj’s past commercial behavior will
not be an accurate reflection of its future experience, and we have made
our revocation decision accordingly.
2004 Administrative Review Decision Memorandum at 17, A-533-810, AR: 2/1/02-
1/31/03 (Sept. 14, 2004), available at http://ia.ita.doc.gov/frn/summary/india/E4-2188-
1.pdf (“Decision Memorandum”).
In its opening brief before this court, Plaintiff effectively challenges Commerce’s
revocation decision as not being in accordance with law, arguing that the applicable
Court No. 04-00508 Page 5
regulation, 19 C.F.R. § 351.222 (2004), prohibits revocation while there is pending
litigation involving prior administrative reviews that form the basis for the revocation.
Pl’s. Br. at 11. In its reply brief, however, Plaintiff appears to shift the basis for its
challenge and instead argues that Commerce’s revocation decision is not supported by
substantial evidence. Plaintiff contends that “Commerce has not shown that it was
reasonable, given this record, to forge ahead to revoke the order, when there was a
likely possibility that Viraj's dumping margins would increase from zero or de minimis,
and thereby preclude granting the Viraj Group's revocation request.” Pl.’s Reply
Br. at 6.
II. Standard of Review
Generally, the court sustains Commerce’s determinations, findings, or
conclusions unless they are “unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically,
when reviewing Commerce’s interpretation of its regulations, the court must give
substantial deference to Commerce’s interpretation, Torrington Co. v. U.S.,
156 F.3d 1361, 1363-64 (Fed. Cir. 1998), according it “‘controlling weight unless it is
plainly erroneous or inconsistent with the regulation.’” Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994) (citations omitted). And when reviewing whether
Commerce’s partial revocation decision for the Viraj Group is ‘unsupported by
substantial evidence,’ the Court assesses whether the agency’s determination, finding,
or conclusion is “unreasonable.” Nippon Steel Corp. v. United States, 458 F.3d 1345,
1351 (Fed. Cir. 2006).
Court No. 04-00508 Page 6
III. Discussion
The antidumping statute authorizes Commerce to “revoke, in whole or in part, . . .
an antidumping duty order . . . after [an administrative review].” 19 U.S.C. § 1675(d)(1).
By regulation, 19 C.F.R. § 351.222(b)(2) (2004), Commerce has defined the criteria for
partial revocation of an antidumping duty order. One requirement is that the exporter or
producer has sold the merchandise at not less than normal value for a period of at least
three consecutive years. 19 C.F.R. § 351.222(b)(2)(i)(A) (2004). Another is that the
continued application of the antidumping order is not otherwise necessary to offset
dumping. 19 C.F.R. § 351.222(b)(2)(C) (2004).
Commerce’s interpretation of the revocation regulation, which is supported by
administrative precedent, allows the agency to consider revocation requests even when
there is pending litigation involving prior reviews. Commerce stated in its Decision
Memorandum that it did not agree with Plaintiff’s proposed interpretation of the
regulation, which would prohibit the consideration of revocation requests until pending
litigation became final. The problem for Plaintiff is that nothing in 19 C.F.R. § 351.222
(2004) suggests that Commerce’s interpretation is incorrect, let alone “‘plainly
erroneous or inconsistent with the regulation.’” Thomas Jefferson Univ.,
512 U.S. at 512. Plaintiff all but concedes this point in its reply brief by choosing not to
address this standard. Instead, Plaintiff changes its focus to an issue that it raises for
the first time in its reply brief: whether Commerce’s revocation decision is reasonable
given the record—that is—whether it is supported by substantial evidence. Pl.’s Reply
Br. at 6.
Court No. 04-00508 Page 7
On the substantial evidence issue, Plaintiff incorrectly states that “Commerce has
not explained why the facts of this case did not warrant a reasonable delay in deciding
the revocation issue.” Id. Commerce explained in its Decision Memorandum why
Commerce continued to rely on the margin calculations from the prior reviews despite
the pending litigation:
While we acknowledge that the CIT has remanded a portion of one
of our prior decisions, it has not yet issued a ruling on our most recent
remand redetermination. Moreover, our position in that litigation remains
unchanged – namely that the final results were supported by substantial
evidence and are fully in accordance with U.S. antidumping law. We note
that, even after the remand redetermination, Viraj’s margin remains
de minimis. See Final Results of Redetermination Pursuant to Remand:
Slater Steels Corporation v. United States, Slip Op. 04-22 (CIT March 8,
2004), (May 7, 2004). In any event, as the CIT has not rendered a final
opinion in the cases under litigation that reverses the Department’s
decisions, we have continued to rely on the margins determined in the
segments at issue because we consider them to be valid and reliable.
Decision Memorandum at 17.
In reviewing the reasonableness of Commerce’s conclusion that the prior review
margin calculations were valid and reliable despite the pending Slater litigation, the
court does not review Commerce’s conclusion based on how the Slater litigation
ultimately unfolded after the 2004 Administrative Review. Instead, the court considers
the posture of the Slater litigation as it existed at the time of Commerce’s decision in the
2004 Administrative Review. See 28 U.S.C. § 2640(b) (2000); 19 U.S.C. § 1516a(b)(2);
cf. Co-Steel Raritan, Inc. v. ITC 357 F.3d 1294, 1316 (Fed. Cir. 2004) (noting that
agency’s decision has to be judged by the information available to the agency at the
time of the agency’s decision). At the time of the 2004 Administrative Review, the
Slater court had issued two remands on the issue of collapsing the Viraj Group, but the
Court No. 04-00508 Page 8
dumping margins for the Viraj Group were still de minimis. Commerce noted there had
been no discernible effect on the Viraj Group’s margins. Additionally, multiple remands
in and of themselves do not necessarily implicate a change to a dumping margin. See,
e.g., Böwe Passat Reinigungs-Und Wäschereitechnik GmbH v. U.S., 21 CIT 604,
604-05, 980 F. Supp. 1262, 1263 (1997) (sustaining third remand determination with no
change to original dumping margin). Based on its experience conducting three
administrative reviews with the Viraj Group, Commerce concluded that the Slater
litigation would not affect the margin calculation for the Viraj Group in the prior
administrative reviews. Such fact-finding by Commerce was reasonable on this
administrative record.
Finally, Plaintiff contends that Commerce’s decision in Carbon Steel (where
Commerce declined to revoke an antidumping order because of pending anti-
circumvention litigation) and the 2004 Administrative Review are inconsistent.
Specifically, Plaintiff alleges that Commerce has “not explained in any meaningful way
why it is justified in deferring revocation when anti-circumvention claims are pending,
but not to defer revocation when a fundamental finding of fact on which revocation
depends (i.e., the lack of dumping for three years) may well change because of a court
challenge.” Pl.’s Reply Br. at 6-7. Here again Plaintiff is incorrect because Commerce
did explain in its Decision Memorandum why the two proceedings were different and
why the outcomes were consistent:
We also disagree with the petitioners that the circumstances here
are similar to those involving pending anti-circumvention claims. As part of
its revocation analysis under 19 CFR 351.222(b)(2)(i), the Department
must determine whether the continued application of the antidumping
order is otherwise necessary to offset dumping. It is entirely reasonable for
Court No. 04-00508 Page 9
the Department to consider a company’s commercial behavior under the
existing antidumping order (and any attempts to evade that antidumping
order) in the context of this analysis. In contrast, here we have found that
Viraj exported subject merchandise to the United States in commercial
quantities for three years, and no party to the proceeding has alleged that
Viraj has attempted to circumvent the antidumping order. Thus, we have
no reason before us to question that Viraj’s past commercial behavior will
not be an accurate reflection of its future experience, and we have made
our revocation decision accordingly.
Decision Memorandum at 17. Commerce concluded that the commercial behavior of
the Viraj Group manifested in three consecutive administrative reviews demonstrated to
Commerce that continued application of the antidumping order was not necessary to
offset dumping with respect to the Viraj Group, whereas the conduct of the
exporter/producer in Carbon Steel, who was mired in an anti-circumvention proceeding,
led Commerce to conclude that continued application of the antidumping order was
necessary to offset dumping.
IV. Conclusion
Commerce’s decision to partially revoke the antidumping order for the Viraj
Group is supported by substantial evidence and is otherwise in accordance with law.
The court denies Plaintiff’s motion for judgment on the agency record and will enter
judgment in favor of defendant sustaining Commerce’s administrative review final
results.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 31, 2007
New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE
CARPENTER TECHNOLOGY
CORPORATION,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 04-00508
UNITED STATES,
Defendant.
JUDGMENT
This case having been submitted for decision, and the court, after due
deliberation, having rendered opinions; now in conformity with those opinions, it is
hereby
ORDERED that Plaintiff’s motion for judgment on the agency record is denied;
and it is further
ORDERED that judgment is entered for the Defendant.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 31, 2007
New York, New York