Slip Op. 03-163

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD W. GOLDBERG, SENIOR JUDGE

SLATER STEELS CORP., FORT

WAYNE SPECIALITY ALLOYS

DIVISION; CARPENTER TECHNOLOGY

CORP., CRUCIBLE SPECIALTY

METALS DIVISION, CRUCIBLE

MATERIALS CORP.; ELECTRALLOY

CORP.; AND UNITED STEEL

WORKERS OF AMERICA, AFLCIO/CLC, 

 Plaintiffs,

v.

UNITED STATES,

Defendant,

 and

UGINE-SAVOIE IMPHY, S.A.,

 Defendant- 

 Intervenor

 

 Court No. 02-00289

[Judgment for defendant.] 

Date: December 16, 2003

Mary T. Staley (Collier, Shannon & Scott, PLCC) for plaintiffs

Slater Steels Corp., Fort Wayne Specialty Alloys Division;

Carpenter Technology Corp., Crucible Specialty Metals Division; 

Crucible Materials Corp.; Electralloy Corp.; United States Steel

Workers of America, AFL-CIO/CLC.

Peter D. Keisler, Assistant Attorney General, David M. Cohen,

Director, Patricia McCarthy, Assistant Director, Commercial

Litigation Branch, Civil Division, United States Department of

Justice (James H. Holl, III and Stephen Tosini) for defendant

United States.
Court No. 02-00289 Page 2

Thomas Bernard Wilner (Shearman & Sterling) for defendantintervenor Ugine-Savoie Imphy, S.A.

GOLDBERG, Senior Judge: Plaintiffs challenge certain aspects of

the final determination of the U.S. Department of Commerce 

(“Commerce”) in an antidumping investigation covering stainless

steel bar from France. Notice of Final Determination of Sales at

Less Than Fair Value; Stainless Steel Bar from France, 67 Fed.

Reg. 3143 (Jan. 23, 2002) (“Final Determination”). 

For the reasons that follow, the Court affirms the Final

Determination. The Court has jurisdiction over this matter

pursuant to 28 U.S.C. § 1581(i).

I. BACKGROUND

On December 28, 2000, domestic producers Slater Steels

Corp., Fort Wayne Specialty Alloys Division; Carpenter Technology

Corp., Crucible Specialty Metals Division; Crucible Materials

Corp.; Electralloy Corp.; United States Steel Workers of America,

AFL-CIO/CLC (collectively, “plaintiffs”) filed a petition with

Commerce requesting that antidumping duties be imposed on

stainless steel bar imports from France and Italy, among other

countries. Commerce commenced an investigation against importers

from France and Italy on January 24, 2001. 

On January 23, 2002, Commerce issued the Final Determination

in which it found that stainless steel bar was being sold in the
Court No. 02-00289 Page 3

United States at less-than-fair value. 

II. STANDARD OF REVIEW

The Court will sustain Commerce’s determinations 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). To determine whether Commerce’s construction of

the statutes is in accordance with law, the Court looks to

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). Under Chevron, it is only if the Court

concludes that “Congress either had no intent on the matter, or

that Congress’s purpose and intent regarding the matter is

ultimately unclear,” that the Court will defer to Commerce’s

construction under Chevron. Timex V.I., Inc. v. United States,

157 F.3d 879, 881 (Fed. Cir. 1998). In addition, “[s]tatutory

interpretations articulated by Commerce during its antidumping

proceedings are entitled to judicial deference under Chevron.” 

Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372,

1382 (Fed. Cir. 2001) (interpreting United States v. Mead, 533

U.S. 218 (2001)). Accordingly, the Court is not to substitute

“its own construction of a statutory provision for a reasonable

interpretation made by [Commerce].” IPSCO, Inc. v. United

States, 965 F.2d 1056, 1061 (Fed. Cir. 1992).

III. DISCUSSION
Court No. 02-00289 Page 4

A. Commerce did not Err in Treating Ugine and its Italian

subsidiary as a Single Entity

Plaintiffs argue that Commerce’s refusal to consolidate the

data from defendant-intervenor Ugine-Savoie Imphy, S.A. (“Ugine”)

and its Italian subsidiary Trafilerie Bedini, Srl (“Bedini”) when

determining “normal value” for calculating Ugine’s dumping margin

is contrary to law. Plaintiffs claim that not consolidating the

data across country lines allowed Ugine and Bedini to manipulate

the results of the antidumping investigation. Plaintiffs cite

Tune Mung Dev. Co. v. United States, 26 CIT __, Slip Op. 02-93

(Aug. 22, 2002) to support their position, which stated that

“Commerce has a duty to avoid the evasion of antidumping duties.”

Commerce and Ugine correctly argue that consolidating Ugine

and Bedini’s data across country lines is forbidden in

antidumping duty investigations by statute. Except for specific

enumerated exceptions to the rule, consolidating investigations

and data across country lines for antidumping duty investigations

is prohibited. 

The dumping margin is the amount that the normal value of

the foreign like product subject to the antidumping proceeding

exceeds the export price of the subject merchandise. 19 U.S.C. §

1673. The foreign like product is restricted, under any of its

definitions in 19 U.S.C. § 1677(16), to identical or similar

merchandise that is produced in the same country as the subject

merchandise. Congress reinforces its restriction on combining
Court No. 02-00289 Page 5

data across country lines in its definition of normal value. 

“Normal value” is defined in 19 U.S.C. § 1677b(a)(1)(B) as home

market sales of the foreign like product, third country sales of

the foreign like product, or constructed value of the subject

merchandise. Under any of these definitions, both the “foreign

like product” and the “subject merchandise” must be in the same

country as the merchandise that is the subject of the

investigation. 

Congress has further defined a country in antidumping duty

proceedings to be “a foreign country, a political subdivision,

dependent territory, or possession of a foreign country.” This

definition does not allow for more than two foreign countries to

be counted as one, especially in the instance of antidumping duty

proceedings. 19 U.S.C. § 1677(3). In fact, the statute that

defines “country” allows that the term “country” may “include an

association of 2 or more foreign countries, political

subdivisions, dependent territories, or possessions of countries

into a customs union outside the United States,” “except for the

purposes of antidumping proceedings.” Id. Congress intended to

preclude collapsing data and conducting investigations across

country lines in antidumping duty proceedings. Therefore,

Commerce did not err in refusing to collapse the data of Ugine

and Bedini across country lines. Because the statute prohibits

collapsing the data or the proceedings, Commerce was not
Court No. 02-00289 Page 6

unreasonable in its decision not to collapse the data even though

there was a risk of price or production manipulation by the

affiliated French and Italian companies. See 19 CFR § 351.401(f)

(two or more affiliated producers shall be treated as one entity

“where those producers have production facilities for similar or

identical products that would not require substantial retooling

of either facility in order to restructure manufacturing

priorities and . . . there is a significant potential for the

manipulation of price or production”).

B. Commerce’s decision to accept Ugine’s revised data was

reasonable.

Commerce issued questionnaires to two French stainless steel

bar producers, including Ugine. Ugine submitted its responses to

questionnaires and responses to supplemental questionnaires. 

After issuing its preliminary determination, which found that

Ugine was selling at less-than-fair value, Commerce conducted

verification of Ugine’s questionnaire responses. At the start of

verification, Ugine provided Commerce with a list of errors to

its previously-submitted home market sales data. At

verification, Commerce found that: (1) prior home market sales

databases failed to include home market sales of two finish

codes; (2) prior home market sales databases failed to report

certain resales made by Ugine’s service centers; (3) prior home

market sales databases incorrectly includes stainless steel bar
Court No. 02-00289 Page 7

1 Section 1677e(a) provides that:

[I]n general, Commerce may make its determinations on

the basis of facts available if:

(1) necessary information is not available on the

record, or 

(2) an interested party or any other person—

(B) fails to provide such information by the

deadlines

19 U.S.C. § 1677e(a)

produced in another country; and (4) prior home market sales

databases had failed to provide the proper grade code for a

number of the service center’s sales. Upon request by Commerce,

Ugine submitted revised home market sales reflecting the

aforementioned corrections. Subsequently, Commerce conducted a 

public hearing, where Ugine’s revised submissions were discussed.

Plaintiffs argue that Ugine’s revised data, submitted after

the submission deadline, was necessary for verification and

constituted a “substantial change” to the original data provided. 

Commerce thereby acted in violation of 19 U.S.C. § 1677e(a) by

not calculating the antidumping margin using facts available.1

Plaintiffs do not argue for the application of adverse facts

available under 19 U.S.C. § 1677e(b). 

Commerce responds that its decision not to apply facts

available is supported by substantial evidence and is otherwise

in accordance with law. Commerce claims that Ugine acted to the

best of its ability to comply with all of the agency’s requests

for information before and after verification. Additionally,
Court No. 02-00289 Page 8

Commerce claims Ugine’s revisions were minor and verifiable, and

produced usable data. Thus, Commerce was within its discretion

to use the data provided by Ugine. 

In order to be in accordance with law, Commerce’s actions

must be reasonable under the terms of the relevant statute. 

Maui Pineapple Co., Ltd. v. United States, 27 CIT __, __, 264 F.

Supp. 2d 1244, 1256 (Apr. 16, 2003) (internal citation omitted). 

In Maui Pineapple, the court affirmed Commerce’s acceptance of

untimely information supplied by the respondent instead of

applying facts available. The court stated that:

Commerce enjoys very broad, although not unlimited

discretion with regard to the propriety of its use of

facts available. Commerce also has broad discretion to

fashion its own rules of administrative procedure,

including the authority to establish and enforce time

limits concerning the submission of written information

and data. Further, Commerce’s determination as to

whether a respondent has complied with its request for

information is discretionary. 27 CIT __, __, 264 F.

Supp. 2d 1244, 1257 (internal citations omitted).

Likewise, in the instant case, Commerce determined that

Ugine acted to the best of its ability to comply with all of the

agency’s requests for information. In addition, Commerce found

that Ugine promptly notified Commerce of errors in its reported

home market database, that these errors were minor, and that the

revisions were verifiable and produced usable data. See Tung

Mung Dev. Co. v. United States, 25 CIT __, Slip Op. 01-83 (July

3, 2001) (finding that Commerce’s application of combination
Court No. 02-00289 Page 9

rates in light of the respondents’ apparent lack of cooperation

was a proper exercise of its discretionary authority to find the

appropriate measures to execute the antidumping laws). Section

1677(e)(a) does not require Commerce to reject data submissions

that are untimely, but rather provides that timeliness may serve

as a criterion that Commerce may consider when deciding whether

to apply facts available. See 19 U.S.C. § 1677e(a)(2)(B). The

statute also allows Commerce to consider the respondent’s level

of cooperation in making the determination whether to apply facts

available. See 19 U.S.C. § 1677e(a)(2)(C). Commerce, not the

Court, is in the best position to assess these criteria and to

make the appropriate determinations. Here, Commerce was in the

best position to determine whether Ugine’s data submissions were

verifiable and whether the submissions produced usable data. 

Likewise, Commerce was in the best position to assess the

respondent’s level of cooperation and the effect of the

respondent’s timeliness or lack thereof. The Court will affirm

Commerce’s determination “if it finds that a reasonable mind

could extract the same conclusion from all of the evidence

represented in the record.” Persico Pizzamiglio, S.A. v. United

States, 18 CIT 299, 303 (1994) (citing Negev Phosphates, Ltd. v.

United States, 12 CIT 1074, 1077, 699 F. Supp. 938, 942 (1988)). 

Commerce’s determination that Ugine acted to the best of its

ability and produced usable data is reasonable. Accordingly, the
Court No. 02-00289 Page 10

Court affirms Commerce’s decision to use the revised data

submitted by Ugine instead of applying facts available.

IV. CONCLUSION

For the aforementioned reasons, the Court finds that

Commerce’s Final Determination is supported by substantial

evidence and is in accordance with law and accordingly the Final

Determination is sustained.

Judgment will be entered accordingly.

 

Richard W. Goldberg

Senior Judge

Date: December 16, 2003

New York, New York
ERRATUM

Slater Steels Corp., Fort Wayne Speciality Alloys Division, et

al. v. United States, Court No. 02-00289, Slip Op. 03-163, issued

December 16, 2003.

• On page 2, the second sentence of the second paragraph

should read: “The Court has jurisdiction over this matter

pursuant to 28 U.S.C. § 1581(c).”