Sahaviriya Steel Indus. Pub. Co. Ltd. v. United States

714 F.Supp.2d 1263

SAHAVIRIYA STEEL INDUSTRIES PUBLIC COMPANY LIMITED, Plaintiff,

v. UNITED STATES, Defendant,andUnited States Steel Corporation, Defendant-Intervenor.

Slip Op. 10-68. Court No. 09-00229.

United States Court ofInternational Trade.

June 15, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Hughes Hubbard & Reed LLP, (Kenneth J. Pierce, Robert L. LaFrankie, Victor S. Mroczka) for Sahaviriya Steel Industries Public Company Limited, Plaintiff.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael D. Panzera and Jane C. Dempsey); Aaron P. Kleiner, Office of Chief Counsel for Import Administration, United States Department of Commerce, Of Counsel, for the United States, Defendant.

Skadden, Arps, Slate, Meagher & Flom LLP, (Jeffrey D. Gerrish Robert E. Lighthizer, and Nathaniel B. Bolin) for United States Steel Corporation, Defendant-Intervenor.

OPINION

TSOUCALAS, Senior Judge.

This matter is before the Court on a Motion for Judgment On the Agency Record brought by Plaintiff, Sahaviriya Steel Industries (“SSI”), pursuant to Rule 56.2 of the Rules of the United States Court of International Trade (“USCIT”).

Plaintiff challenges certain aspects of the U.S. Department of Commerce's (“Commerce's” or “Department's”) final results with respect to the changed circumstances review of the antidumping duty order in Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Antidumping Duty Changed Circumstances Review and Reinstatement in the Antidumping Duty Order, 74 Fed.Reg. 22,885 (May 15, 2009) Public Rec. Doc. No. 1180 (“ Final Results ”). ¹ Plaintiff contends that the Department lacks the authority to conduct a changed circumstances review for the purpose of reinstating a “previously revoked” antidumping duty order. Mem. in Supp. of Pl.'s Mot. for J. On the Agency R. (“Pl.'s Brief”) at 2. Plaintiff further contests the Department's date of sale methodology and argues that Commerce acted unlawfully when it changed its previous practice of relying on the contract date as the date of sale for its margin calculations. See id. at 3.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2) (2006) and 28 U.S.C. § 1581(c) (2006).

STANDARD OF REVIEW

When reviewing the final results in an antidumping changed circumstances review “[t]he court shall hold unlawful any 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). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). There must be a “rational connection between the facts found and the choice made” in an agency determination if it is to be characterized as supported by substantial evidence and otherwise in accordance with law. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). The Court “must affirm a Commission determination if it is reasonable and supported by the record as a whole, even if some evidence detracts from the Commission's conclusion.” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed.Cir.2006) (internal citation and quotation marks omitted).

When the Court examines the lawfulness of Commerce's statutory interpretations and regulations, it must employ the two-pronged test established in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the Court must examine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If it has, the agency and the Court must comply with the clear intent of Congress. See id. at 842-43, 104 S.Ct. 2778. If it has not, the question for the Court is “whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

BACKGROUND

On November 29, 2001, Commerce issued an antidumping duty order on certain hot-rolled carbon steel flat products from Thailand. See Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Thailand, 66 Fed.Reg. 59,562 (Nov. 29, 2001). The order was based on separate findings by Commerce and the U.S. International Trade Commission (“ITC” or “Commission”) that certain hot-rolled steel from Thailand had been sold in the United States at less than fair value and contributed to the material injury suffered by the domestic hot-rolled steel industry. See id. at 59,563. SSI was among the Thai producers of subject merchandise included in the antidumping duty order. See id.

Following its issue, Commerce conducted a series of administrative reviews of the order in which it determined that SSI had not sold hot-rolled steel at less than normal value. See Certain Hot-Rolled Carbon Steel Flat Products From Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 69 Fed.Reg. 19,388 (Apr. 13, 2004); Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Rescission of Antidumping Duty Administrative Review, 69 Fed.Reg. 18,349 (Apr. 7, 2004) (this second administrative review was rescinded when the parties requesting the review withdrew their requests); Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Antidumping Duty Administrative Review, Partial Revocation of Antidumping Duty Order and Partial Rescission of Antidumping Duty Administrative Review (“ Final Results of Third Administrative Review ”), 71 Fed.Reg. 28,659 (May 17, 2006). In November 2004, as part of its request to conduct the third administrative review, SSI sought partial revocation of the order with respect to its sales pursuant to 19 C.F.R. § 351.222 (2004). In support of its request, SSI agreed “to immediate reinstatement of the order, so long as any Thai exporter or producer is subject to it, should the Department determine that SSI, subsequent to the requested revocation, sold the subject merchandise at less than fair value.” Request For Changed Circumstances Review On Behalf Of United States Steel Corp. (Nov. 8, 2006), Ex. 1 at 3 (PR 721).

Upon completion of the third administrative review, Commerce revoked the antidumping duty order for SSI's exports of hot-rolled steel. ² See Final Results of Third Administrative Review, 71 Fed.Reg. 28,661. Commerce's decision was based on its determination that SSI had sold the subject merchandise at not less than normal value for a period of three consecutive years. Despite partial revocation of the antidumping order with respect to SSI, the order itself remained in effect as to other Thai producers and exporters. See Certain Hot-Rolled Carbon Steel Flat Products from India, Indonesia, the People's Republic of China, Taiwan, Thailand, and Ukraine: Continuation of Antidumping Duty and Countervailing Duty Orders, 72 Fed.Reg. 73,316 (Dec. 27, 2007).

On November 8, 2006, United States Steel Corporation (“U.S.Steel”) filed with Commerce an allegation claiming SSI had resumed sales of hot-rolled steel products at less than normal value subsequent to its removal from the original antidumping order. Invoking 19 C.F.R. § 351.216(b), ³ U.S. Steel requested that Commerce initiate a changed circumstances review to reinstate the order with regard to SSI's exports of subject merchandise to the United States. Accordingly, Commerce conducted an analysis of the information it received from U.S. Steel to determine the sufficiency of its allegations. On March 28, 2008, the Department, relying on its authority under 19 U.S.C. § 1675(b)(1), initiated the underlying changed circumstances review to determine whether SSI had sold hot-rolled steel at less than normal value during the period in question, ⁴ and whether it should therefore be reinstated in the original antidumping duty order. See Initiation of Antidumping Duty Changed Circumstances Review: Certain Hot-Rolled Carbon Steel Flat Products from Thailand (“ Notice of Initiation ”), 73 Fed.Reg. 18,766 (Apr. 7, 2008).

On October 7, 2008, SSI commenced an action with this Court seeking injunctive relief to prevent the Department from continuing with its changed circumstances review. Attempting to invoke the Court's jurisdiction under 28 U.S.C. § 1581(i), SSI challenged the Department's initiation of the changed circumstances review for the purpose of reinstating a previously revoked antidumping duty order, as unlawful and ultra vires. See Sahaviriya Steel Indus. Co., Ltd. v. United States, 33 CIT ----, 601 F.Supp.2d 1355 (2009) ( “ SSI I ”). The Court granted Commerce's motion to dismiss based on the lack of subject matter jurisdiction and because SSI's claims were not yet ripe. See id.

On May 15, 2009, the Department published the Final Results of its changed circumstances review in which it determined that SSI had resumed dumping of hot-rolled steel products, and reinstated Plaintiff under the antidumping duty order still in effect. A dumping margin of 9.04 percent ad valorem was calculated for all entries of subject merchandise produced by SSI. See Final Results, 74 Fed.Reg. at 22,886.

Plaintiff commenced this action on June 11, 2009, seeking judicial review of Commerce's Final Results in the changed circumstances review (“CCR” or “changed circumstances review”). Specifically, Plaintiff contests the legality of the Department's initiation of a changed circumstances review for the purpose of reinstating a previously revoked antidumping duty order, and the methodologies employed by...