                                                Slip Op. 10-130

                   UNITED STATES COURT OF INTERNATIONAL TRADE

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                                                      :
CARPENTER TECHNOLOGY                                  :
CORPORATION and VALBRUNA                              :
SLATER STAINLESS, INC.,                               :
                                                      :
                  Plaintiffs,                         :
                                                      :           Before: Judith M. Barzilay, Judge
                  v.                                  :           Court No. 09-00439
                                                      :           Public Version
UNITED STATES,                                        :
                                                      :
                  Defendant.                          :
                                                      :
------------------------------------------------------x

                                                   OPINION

[The court denies Plaintiffs’ Motion for Judgment Upon the Agency Record.]

Kelley Drye & Warren, LLP (Laurence J. Lasoff, Mary T. Staley, Grace W. Kim) for Plaintiffs
Carpenter Technology Corporation and Valbruna Slater Stainless, Inc.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice
(David D'Alessandris); George Kivork, Office of the Chief Counsel for Import Administration,
U.S. Department of Commerce, of counsel, for Defendant.

                                                                          Dated: November 23, 2010

         Barzilay, Judge: Plaintiffs Carpenter Technology Corporation (“Carpenter”) and

Valbruna Slater Stainless, Inc., (collectively, “Plaintiffs”) move for judgment on the agency

record, challenging aspects of the U.S. Department of Commerce’s (“Commerce” or “the

Department”) determination in Stainless Seel Bar from India, 74 Fed. Reg. 47,198 (Dep’t of
Court No. 09-00439                                                                          Page 2

Commerce Sept. 15, 2009) (final admin. review) (“Final Results”).1 Specifically, Plaintiffs

present three arguments: (1) that the Department unlawfully refused to rely on certain double-

bracketed business proprietary information in the Final Results; (2) that Commerce should have

found foreign producer Venus Wire Industries Pvt. Ltd. (“Venus”) and domestic purchaser AMS

Specialty Steel (“AMS”) to be affiliated during the period of review; and (3) that the agency

should have applied adverse facts available (“AFA”) to Venus. Pls. Br. 13-37. For the reasons

below, Plaintiffs’ arguments fail, and the court denies their motion for judgment on the agency

record.

                               I. Background & Procedural History

          In 1995, Commerce issued an antidumping duty order on stainless steel bar from India.

Stainless Steel Bar from Brazil, India and Japan, 60 Fed. Reg. 9661 (Dep’t of Commerce Feb.

21, 1995) (antidumping duty orders). Over a decade later, after receiving a timely request from

Carpenter, the Department initiated an administrative review of Venus. Initiation of

Antidumping and Countervailing Duty Administrative Reviews, Requests for Revocation in Part,

and Deferral of Administrative Review, 73 Fed. Reg. 16,837 (Dep’t of Commerce Mar. 31,

2008).

          As a part of its review, Commerce asked Venus to answer various questionnaires. In its

responses, Venus, which has participated in the review without counsel, referred to AMS as an

unaffiliated customer and reported the export price of the subject merchandise that it sold to

AMS. J.A. 63, 117. In response, Carpenter submitted comments to the Department which



          1
        The period of review runs from February 1, 2007 to January 31, 2008. Final Results, 74
Fed. Reg. at 47,198.
Court No. 09-00439                                                                            Page 3

averred that AMS acted as a sales agent for Venus, pointing to the presence of AMS’s customer

names on purchase orders sent to Venus. J.A. 130. Venus replied, stating that formatting

purchase orders in this manner allows it to fulfill the technical specifications, labeling, and

marketing requested by AMS’s customers. J.A. 270-71. Venus also insisted that intermediate

customers regularly provide steel suppliers with the names of the products’ final third-party

customers. J.A. 271. To eliminate confusion over its purported affiliations, Venus further

highlighted that it had no commission agreement with AMS. J.A. 270.

       Carpenter responded to this information by submitting 44 pages of comments, including

15 pages of double bracketed proprietary evidence that it believed demonstrated a principal/agent

relationship between Venus and AMS. J.A. 325-69. Pursuant to 19 U.S.C. § 1677f(b)(1)(B) and

19 C.F.R. § 351.304(a)-(b), the Department could not release the proprietary information to

Venus.2 Consequently, the agency notified Carpenter that it would not base its determination on

the double bracketed information because of due process concerns, since Venus could not

respond to the allegations against it. See J.A. 522-25.

       In March 2009, Commerce published its preliminary results, Stainless Steel Bar from

India, 74 Fed. Reg. 9787 (Dep’t of Commerce Mar. 6, 2009) (prelim. admin. review), and issued




       2
         The statute states, in relevant part, that
       The administering authority . . . shall require that information for which
       proprietary treatment is requested be accompanied by . . .(ii) either (I) a
       statement which permits the administering authority or the Commission to release
       under administrative protective order, in accordance with subsection (c), the
       information submitted in confidence, or (II) a statement to the administering
       authority or the Commission that the business proprietary information is of a type
       that should not be released under administrative protective order.
§ 1677f(b)(1)(B). Section 351.304(a)-(b) parallels the statute’s directives. See § 351.304(a)-(b).
Court No. 09-00439                                                                           Page 4

its final results six months later.3 See generally Final Results; see also Issues and Decision

Memorandum for 2007-2008 Antidumping Duty Administrative Review of Stainless Steel Bar

from India, A-533-810 (Dep’t of Commerce Sept. 2, 2009) (“Issues & Decision Mem.”). The

Department determined that AMS acted as an independent reseller and, therefore, did not qualify

as an affiliate of Venus. Final Results, 74 Fed. Reg. at 47,199; Issues & Decision Mem. at 7-10.

Commerce based its conclusions about the use of Carpenter’s double bracketed information on

the same due process concerns as before. Issues & Decision Mem. at 31-32. Finally, Commerce

declined to apply AFA to Venus because the agency found that it had the relevant information

necessary to make accurate calculations and that any minor deficiencies in Venus’s submissions

did not impede the review or show that the company failed to act to the best of its ability. Id. at

11-22.

                     II. Subject Matter Jurisdiction & Standard of Review

         The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c). The court

will disturb a Commerce determination only when “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 on the record constitutes “less than a preponderance, but more than a

scintilla.” Novosteel SA v. United States, 25 CIT 2, 6, 128 F. Supp. 2d 720, 725 (2001) (citation

& quotation marks omitted), aff’d, 284 F.3d 1261 (Fed. Cir. 2002). The requisite proof amounts

to “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion” in light of the entire record, including “whatever fairly detracts from the

         3
         During the intervening period, the Department again advised Carpenter that it would not
use the substantive allegations contained in its double bracketed submissions in the Final Results
because of due process concerns. J.A. 522-25.
Court No. 09-00439                                                                           Page 5

substantiality of the evidence.” Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir.

1984) (footnote & quotation marks omitted). This standard necessitates that the Department

thoroughly examine the record and “articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of

the U.S., Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983) (citation & quotation marks

omitted); accord Bando Chem. Indus., Ltd. v. United States, 16 CIT 133, 136-37, 787 F. Supp.

224, 227 (1992). That the court may draw two inconsistent conclusions from the evidence does

not preclude Commerce from supporting its determination with substantial evidence. Thai

Pineapple Pub. Co. v. United States, 187 F.3d 1362, 1365 (Fed. Cir. 1999).

                                          III. Discussion

A. Commerce’s Refusal to Use Plaintiffs’ Double Bracketed Submissions

       A party to an administrative proceeding may submit two types of business proprietary

information to Commerce. See generally 19 U.S.C. § 1677f(b); 19 C.F.R. § 351.304(a). If a

submitting party sets off the proprietary information with single brackets, then Commerce

discloses it during the course of the proceedings to all interested parties under an administrative

protective order. § 1677f(b)(1)(B)(ii)(I) & (c); § 351.304(b)(1); see Allied Tube & Conduit Corp.

v. United States, 898 F.2d 780, 783 (Fed. Cir. 1990). The Department does not release the

second type of information, which a party submits with double brackets, to interested parties

under any circumstances. § 1677f(b)(1)(B)(ii)(II); § 351.304(b)(2); see Allied Tube & Conduit

Corp., 898 F.2d at 783.

       Plaintiffs challenge Commerce’s refusal to consider the double bracketed information

they submitted to demonstrate that Venus and AMS had a principal/agent relationship. Pls. Br.
Court No. 09-00439                                                                             Page 6

27 (citing J.A. 325-69). Although Plaintiffs chose to make this information exempt from release

under an administrative protective order, and therefore unavailable for Venus or any other

interested party’s viewing, Plaintiffs insist that “nothing in the statute or regulations permits the

Department to disregard this information” once placed on the record. Pls. Br. 28.

       This claim has no legal merit. Although the relevant statute and related regulations

permit a party to submit business proprietary information not subject to release under an

administrative protective order, Congress intended these exceptions “to be very narrow and

limited” and “to be used rarely, in situations in which substantial and irreparable financial or

physical harm may result from disclosure.” Allied Tube & Conduit Corp., 898 F.2d at 786

(quoting H.R. Rep. No. 100-576 at 85 (1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N.

1547, 1656); see Issues & Decision Mem. at 31-32. In this case, however, Plaintiffs did not

narrowly tailor their submissions to conceal, for example, the identity of market researchers,

information sources, or customer names; rather, the submissions contained wholesale allegations

challenging the truthfulness of Venus’s questionnaire responses. See, e.g., J.A. 346-47, 353-63,

365-67. This fact, in conjunction with Congess’s mandate that substantive information

submitted to Commerce during the course of the proceeding shall be subject to comment by other

parties, supports the Department’s refusal to countenance the information in the Final Results.

19 U.S.C. § 1677m(g); accord Issues & Decision Mem. at 31-32. If Commerce had relied upon

Plaintiffs’ double bracketed submissions, it would have unlawfully deprived Venus of its

statutory right to comment on the allegations against it. See § 1677m(g); Mid Continent Nail

Corp. v. United States, 34 CIT __, __, 712 F. Supp. 2d 1370, 1375 (2010) (“Congress has

provided a fair process for commenting within the statutory language of 19 U.S.C. § 1677m.”
Court No. 09-00439                                                                            Page 7

(citation omitted)); cf. Atar, S.r.L. v. United States, 33 CIT __, __, 637 F. Supp. 2d 1068, 1084

(2009) (affirming Commerce’s decision not to use business proprietary information to make

calculation when doing so would make information public). The Department’s decision not to

use Plaintiffs’ double bracketed submissions in its determination comports with the relevant

statute and controlling regulations, and the court affirms the Department’s decision.

B. The Department’s Finding of No Principal/Agent Relationship

       In the antidumping context, Congress has defined “affiliated persons,” in relevant part, as

“[a]ny person who controls any other person and such other person.” 19 U.S.C.

§ 1677(33)(G); accord 19 C.F.R. § 351.102(b)(3). The requisite control exists “if the person is

legally or operationally in a position to exercise restraint or direction over the other person.”

§ 1677(33); accord Chia Far Indus. Factory Co. v. United States, 28 CIT 1337, 1348 n.9, 343 F.

Supp. 2d 1344, 1357 n.9 (2004) (citing Uruguay Round Agreements Act, Statement of

Administrative Action, H.R. Doc. No. 103316, vol. 1, at 838 (1994), reprinted in 1994

U.S.C.C.A.N. 4040, 4174-75). When determining whether parties qualify as affiliated in the

absence of an explicit agency agreement, Commerce examines the totality of the circumstances

and considers

       1) the foreign producer’s role in negotiating price and other terms of sale;
       2) the extent of the foreign producer’s interaction with the U.S. customer;
       3) whether the agent/reseller maintains inventory;
       4) whether the agent/reseller takes title to the merchandise and bears the risk of
       loss;
       5) whether the agent/reseller further processes o[r] otherwise adds value to the
       merchandise;
       6) the means of marketing a product by the producer to the U.S. customer in the
       pre-sale period; [and]
       7) whether the identity of the producer on sales documentation inferred such an
       agency relationship during the sales transaction.
Court No. 09-00439                                                                            Page 8

Chia Far Indus. Factory Co., 28 CIT at 1349 n.10, 343 F. Supp. 2d at 1358 n.10 (citation

omitted); see id. at 1350, 343 F. Supp. 2d at 1358 (quotation omitted) (citing § 351.102) (listing

similar set of four factors agency may consider in affiliated persons evaluation).

       Plaintiffs contend that the Department improperly found no de facto principal/agent

relationship between Venus and AMS.4 See Pls. Br. 10-11, 16-24. In their brief, Plaintiffs trace

the seven-part test delineated above and state that each factor suggests that such a relationship

existed between the companies. On the first prong, they claim that “the only evidence on the

record show[s] that Venus [] was actively involved in the negotiations by AMS with the ultimate

U.S. customer.” Pls. Br. 17. According to Plaintiffs, Venus [[ had influence over AMS



                          ]]. Pls. Br. 18 (citing J.A. 345-69, 380-81, 491-500, 502-07). Plaintiffs

next highlight, in examining the second prong, that Venus interacted with final, third-party U.S.

customers, Pls. Br. 19 (citing J.A. 130, 143-62), and that Venus even directly contacted them on

multiple occasions. Pls. Br. 19 (citing J.A. 364-69). To bolster their argument that Venus had

significant interactions with AMS’s domestic customers, Plaintiffs specifically point to AMS’s

custom of providing Venus with the names AMS’s customers. Pls. Br. 19. Plaintiffs believe that

AMS had “no commercial reason” to disclose its U.S. customers to Venus if the two companies

truly conducted their transactions at arm’s-length. Pls. Br. 19 n.29 (“[T]he only reason for AMS

to divulge the customer’s identity to Venus [] is that AMS was acting primarily for the benefit of

Venus [] and not itself.”). With respect to the third factor, Plaintiffs note that AMS did not

       4
         Plaintiffs concede that Venus and AMS do not have a de jure principal/agent
relationship, Pls. Br. 10, 16, 26, as “a written agency relationship and evidence of formal
commission payments d[o] not exist on the record.” Pls. Br. 10.
Court No. 09-00439                                                                            Page 9

maintain inventory of the subject merchandise and had it shipped to the ultimate U.S. customer,

evidence that purportedly bolsters a finding of an agency relationship. Pls. Br. 24 (citing J.A.

374). On the fourth factor, Plaintiffs proffer that AMS faced minimal financial risk in these

transactions because AMS did not take physical possession of the merchandise and because

Venus retained liability for merchandise quality problems, even though AMS took proper title to

the merchandise. Pls. Br. 23 (J.A. 374). Plaintiffs contend that this risk minimalization should

have led Commerce to find affiliation between the two companies. According to Plaintiffs, that

AMS also did not process or add any value to the subject merchandise purchased from Venus

supports the same affirmative affiliation conclusion on the fifth prong. Pls. Br. 24 (citing J.A.

271). Plaintiffs maintain on the sixth prong that AMS “clearly marketed the subject merchandise

on behalf of Venus” because of AMS’s status as [[                  a large seller of Venus products

          ]]. Pls. Br. 21 (citing J.A. 364-69). Finally, on the last factor, Plaintiffs aver that U.S.

consumers of the subject merchandise understood that AMS acted as Venus’s domestic sales

agent, pointing to, inter alia, Venus’s letter notifying them that it would bypass AMS and begin

working with them directly. Pls. Br. 21-22 (citing J.A. 345-69).

       Notwithstanding Plaintiffs’ lengthy arguments to the contrary, Commerce did not err

when it concluded that the two companies had no agency relationship. The Department notes

that nothing on the record shows that Venus played a role in price negotiations between AMS

and its domestic customers or that Venus paid AMS commissions for its subject merchandise

sales. Issues & Decision Mem. at 8 (citing J.A. 373-74, 441); see J.A. 306, 418, 984. Commerce

also found that Venus had limited interaction with AMS’s U.S. customers. Issues & Decision

Mem. at 8-9. While Venus knew the names of these customers from purchase orders, Commerce
Court No. 09-00439                                                                          Page 10


determined that this standard industry practice simply allowed Venus to produce the subject

merchandise to the ultimate customers’ technical specifications and label/marking requirements.

Id. at 8-9 (citing J.A. 372-73); see J.A. 270, 306. Moreover, the Department correctly concluded

that Venus and AMS did not establish a principal/agent relationship when Venus notified AMS’s

customers by letter that it soon would begin selling its products through its new U.S. affiliate and

no longer through AMS. Issues & Decision Mem. at 9. Although Venus may have implied that

AMS acted as its agent, Commerce agreed that “because AMS had been servicing [Venus’s]

customers for quite a long time using Venus material, those customers may have had the

impression that AMS represented Venus in the U.S. market.” Issues & Decision Mem. at 9

(citing J.A. 372-73) (emphasis added). The letter’s use of the term “agent” cannot alone

demonstrate that such a legal relationship existed. In that vein, the Department recognized that

Venus never engaged in conduct typical of a principal, such as contacting the customers for the

purpose of sales negotiations, presale discussions, or marketing. Issues & Decision Mem. at 8-9;

see J.A. 373. Finally, the Department noted that although AMS did not maintain an inventory or

add any non-service value to the subject merchandise after purchase, it took title of the subject

merchandise and bore the risk of loss. Issues & Decision Mem. at 10 (citing J.A. 372-74); see

J.A. 418. Examining the totality of these facts, the Department reasonably concluded that Venus

and AMS did not have an agency relationship, and the court therefore affirms this determination.
Court No. 09-00439                                                                            Page 11


C. The Department’s Decision Not to Apply AFA to Venus

       When conducting an antidumping duty administrative review, the Department uses facts

otherwise available if a party, inter alia, withholds requested information, fails to timely or

submit such information “in the form and manner requested,” or “significantly impedes” the

proceeding. 19 U.S.C. § 1677e(a)(2). After making this finding, Commerce “may” employ AFA

against the party if the agency makes a separate finding that the “party has failed to cooperate by

not acting to the best of its ability to comply with a request for information.” § 1677e(b)

(emphasis added); accord Steel Auth. of India, Ltd. v. United States, 25 CIT 482, 488, 149 F.

Supp. 2d 921, 929 (2001). If a party does not submit complete and accurate information due to

“simple inadvertence” despite its ability to do so, the Department may apply AFA only once it

shows “willfulness on the part of the [party] or behavior below the standard of a reasonable

respondent.” Steel Auth. of India, Ltd., 25 CIT at 489 n.11, 149 F. Supp. 2d at 930 n.11 (citation

omitted).

       Plaintiffs assert that Commerce should have applied AFA to Venus’s antidumping duty

margin calculation. In a laundry list of grievances, they allege that Venus wantonly violated the

Department’s procedural and regulatory requirements, filed numerous improper requests for

extensions of time, and failed to place on the record necessary information which the agency

requested. Pls. Br. 30-37. Plaintiffs, though not Commerce, argues that this purported behavior

“[s]ignificantly [i]mpeded [t]he Department’s [r]eview.” Pls. Br. 35. But see Issues & Decision

Mem. at 11-12, 14-15, 17-22; Def. Br. 25-31.
Court No. 09-00439                                                                            Page 12


         In light of the “particularly great” deference granted to the Department’s factual

determinations when deciding whether to apply AFA to allegedly uncooperative respondents,

F.Lli de Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir.

2000) (citations omitted), and the near-frivolous quality of Plaintiffs’ allegations, the court

adopts Commerce’s succinct and eloquent reasoning on this issue in full and affirms its refusal to

apply AFA against Venus. See Issues & Decision Mem. at 10-22.

                                           IV. Conclusion

         The court denies Plaintiffs’ motion for judgment on the agency record.



Dated:      November 23, 2010                            /s/ Judith M. Barzilay
         New York, New York                             Judith M. Barzilay, Judge
