Slip Op. 06-147
UNITED STATES COURT OF INTERNATIONAL TRADE
CARPENTER TECHNOLOGY
CORPORATION,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 04-00508
UNITED STATES,
Defendant.
OPINION
[Commerce’s determination regarding collapsing sustained.]
Dated: October 5, 2006
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 two decisions of the
United States Department of Commerce (“Commerce”) during an administrative review
of an antidumping duty order covering stainless steel bar from India: (1) the collapsing
of three foreign producers into a single entity for analyzing and calculating the
applicable dumping margin, and (2) the revocation of the antidumping duty order for
those same foreign producers. 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), and 28 U.S.C. § 1581(c) (2000).
Plaintiff failed to exhaust its administrative remedies on the collapsing issue
during the administrative review. The court therefore sustains the Final Results with
respect to Commerce’s decision to collapse. For reasons not germane to this opinion,
the court reserves decision on the issue of revocation.
I. Background
During the administrative review covering the period February 1, 2002 through
January 31, 2003, Commerce collapsed three respondents, Viraj Alloys, Ltd.,
Viraj Forgings, Ltd., and Viraj Impoexpo, Ltd., into a single entity, Viraj. See Stainless
Steel Bar from India, 69 Fed. Reg. 55,409 (Dep’t of Commerce Sept. 14, 2004)
(final results admin. review) (“Final Results”). When Commerce collapses two or more
entities, it treats them as a “single entity” for the antidumping analysis and margin
calculation. 19 C.F.R. § 351.401(f)(1) (2004).
Before Commerce issued the preliminary results, Plaintiff raised the collapsing
issue in two submissions. See Petitioner’s Sept. 11, 2003 Comments on Viraj’s
Supplemental Questionnaire Responses (Pub. R. Doc. No. 1551, Pl.’s Reply Br. App. 5)
and Petitioner’s Dec. 3, 2003 Comments on Viraj’s Supplemental Questionnaire
Responses (Pub. R. Doc. No. 185, Pl.’s Reply Br. App. 6). In each, Plaintiff sought to
discourage Commerce from collapsing the Viraj companies by citing Slater Steels Corp.
v. United States, 27 CIT __, 279 F. Supp. 2d 1370 (Aug. 21, 2003) (“Slater I”).
1
References to the public version of the administrative record will be cited as “Pub. R.
Doc. No.”
Court No. 04-00508 Page 3
Slater I involved an earlier administrative review of the same antidumping duty
order applicable in this case and was the first of four opinions to address Commerce’s
collapsing of the three Viraj respondents in that earlier proceeding.2 At the time of
Plaintiff’s two submissions in this case, however, only Slater I had been issued. Plaintiff
cited the case because the Slater I court did not sustain Commerce’s collapsing
decision, remanding the matter for further consideration. Subsequently, after the Slater
court failed to sustain Commerce’s collapsing of the Viraj companies for the third time,
Slater Steels Corp. v. United States, 29 CIT __, Slip. Op. 05-23 (Feb. 17, 2005),
Commerce redid its analysis and margin calculation—collapsing Viraj Forgings and Viraj
Impoexpo, while treating Viraj Alloys as a separate entity. This result was ultimately
sustained in the Slater court’s fourth and final opinion. See Slater Steels Corp. v.
United States, 29 CIT __, 395 F. Supp. 2d 1353 (Oct. 20, 2005) (appeal voluntarily
dismissed).
Despite Plaintiff’s submissions regarding Slater I, Commerce went ahead and
collapsed the Viraj companies in the preliminary results. See Stainless Steel Bar from
India, 69 Fed. Reg. 10,666, 10,670-71 (Dep’t of Commerce Mar. 8, 2004)
(prelim. results admin. review). Following the preliminary results, Plaintiff chose not to
address the collapsing issue in its case brief. Commerce then took the same approach
in the Final Results, collapsing the Viraj companies. Commerce calculated a final
2
The three subsequent Slater decisions are Slater Steels Corp. v. United States, 28 CIT
__, 316 F. Supp. 2d 1368 (Mar. 8, 2004); Slater Steels Corp. v. United States, 29 CIT
__, Slip. Op. 05-23 (Feb. 17, 2005); and Slater Steels Corp. v. United States, 29 CIT __,
395 F. Supp. 2d 1353 (Oct. 20, 2005) (appeal voluntarily dismissed).
Court No. 04-00508 Page 4
dumping margin of 0.00% for the Viraj companies. Final Results, 69 Fed. Reg.
at 55,411.
In response to Plaintiff’s motion for judgment upon the agency record, Defendant
argues that Plaintiff failed to exhaust its administrative remedies.
II. Discussion
This court addressed the issue of exhaustion of administrative remedies and
collapsing in Carpenter Tech. Corp. v. United States, 30 CIT __, Slip Op. 06-134
(Sept. 6, 2006), which involved the same plaintiff in this case. In Carpenter, the court
explained that the Court of International Trade applies the non-jurisdictional exhaustion
requirement of 28 U.S.C. § 2637(d) (2000) “where appropriate,” and that exhaustion is
“generally appropriate in the antidumping context because it allows the agency to apply
its expertise, rectify administrative mistakes, and compile a record adequate for judicial
review—advancing the twin purposes of protecting administrative agency authority and
promoting judicial efficiency.” Carpenter, 30 CIT at __, Slip Op. 06-134, at p. 3
(citations omitted).
The plaintiff in Carpenter never raised the issue of collapsing on the
administrative record, leading to the court’s denial of the claim based on plaintiff’s failure
to exhaust administrative remedies. Id., 30 CIT at __, Slip Op. 06-134, at p. 6. The
facts here are slightly different with Plaintiff at least raising the issue of collapsing on the
administrative record. See Petitioner’s Sept. 11, 2003 Comments on Viraj’s
Supplemental Questionnaire Responses (Pub. R. Doc. No. 155, Pl.’s Reply Br. App. 5)
and Petitioner’s Dec. 3, 2003 Comments on Viraj’s Supplemental Questionnaire
Court No. 04-00508 Page 5
Responses (Pub. R. Doc. No. 185, Pl.’s Reply Br. App. 6). The result, however, is the
same because Plaintiff did not follow-through after the preliminary results and include
the collapsing issue in its case brief before the agency.
Commerce’s regulation governing case briefs comports well with the twin
purposes of exhaustion and also speaks to the facts of this case: “The case brief must
present all arguments that continue in the submitter’s view to be relevant to the . . . final
results, including any arguments presented before the date of publication of the . . .
preliminary results.” 19 C.F.R. § 351.309(c)(2) (2004) (emphasis added).
Although Plaintiff advocated against collapsing in its two submissions prior to the
preliminary results, Commerce concluded otherwise. At that point, if Plaintiff believed
that the collapsing issue was relevant to the Final Results, Plaintiff needed to include
that issue in its case brief, as required by the regulation. Commerce would then have
known that Plaintiff had not waived the issue. See Corus Staal BV v. United States,
30 CIT __, __, Slip. Op. 06-112, at p. 16 (holding that plaintiff failed to exhaust
administrative remedies by failing to include issue in case brief).
In its briefs before this court, Plaintiff has presented extensive factual and legal
arguments why Commerce erred in its collapsing decision. Unfortunately, by not
briefing the issue before Commerce, Plaintiff deprived the agency of the opportunity to
consider these arguments in the first instance. Plaintiff’s omission frustrates the twin
purposes of the exhaustion requirement, leaving the court in the same position as in
Carpenter, having to sort through post hoc rationalizations of agency counsel, which is
Court No. 04-00508 Page 6
not the desired posture for a complex, fact-specific issue like collapsing.
See Carpenter, 30 CIT at ___, Slip Op. 06-134, at p. 5.
A party cannot abandon such an issue before the agency and then expect the
court to apply the standard of review practically or efficiently—especially when a party
seeks to rely on a host of factual and legal arguments spanning other administrative
proceedings that the agency has not addressed on the applicable administrative record.
To borrow from Carpenter:
It suffices to say that the exhaustion requirement is
appropriate in this case. Had plaintiff . . . [briefed] the
collapsing issue before the agency, the administrative record
would have been more fully developed and adequate for
judicial review, the agency would have exercised its primary
jurisdiction (without the need to rely on post hoc
rationalizations of agency counsel), and the court could then
have efficiently applied the standard of review to analyze
whether the collapsing decision was supported by
substantial evidence or otherwise in accordance with law.
Id., 30 CIT at __, Slip Op. 06-134, at p. 6.
III. Conclusion
The exhaustion requirement is appropriate in this case, and Plaintiff failed to
exhaust its administrative remedies. Accordingly, the court sustains Commerce’s
decision to collapse the Viraj companies. The court reserves decision on the issue of
revocation.
/s/ Leo M. Gordon
Leo M. Gordon
Judge
Dated: New York, New York
October 5, 2006