U.S. Court of Appeals, Federal Circuit
September 10, 1999
GUANGDONG METALS & MINERALS IMPORT AND EXPORT CORPORATION AND OVERSEAS TRADE CORPORATION,
D & L SUPPLY CO.,
U.V. INTERNATIONAL, SIGMA CORPORATION, SOUTHERN STAR, INC., CITY PIPE AND FOUNDRY, INC. AND LONG BEACH IRON WORKS, INC.,
ALHAMBRA FOUNDRY, INC., ALLEGHENY FOUNDRY CO., BINGHAM & TAYLOR DIVISION, VIRGINIA INDUSTRIES, INC., CHARLOTTE PIPE & FOUNDRY CO., EAST JORDAN IRON WORKS INC., LEBARON FOUNDRY INC., MUNICIPAL CASTINGS, INC., NEENAH FOUNDRY CO., OPELIKA FOUNDRY CO., INC., TYLER PIPE INDUSTRIES, INC., U.S. FOUNDRY & MANUFACTURING CO. AND VULCAN FOUNDRY, INC.,
Mayer, Chief Judge, Michel and Plager, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
D & L Supply Co., U.V. International, Sigma Corporation, Southern Star, Inc., City Pipe & Foundry, Inc., and Long Beach Iron Works, Inc. (collectively "D & L"), all importers of iron castings from China, appeal the judgment of the United States Court of International Trade, D & L Supply Co. v. United States, 6 F. Supp. 2d 914 (Ct. Int'l Trade 1998), affirming the Department of Commerce's Final Results of Redetermination Pursuant to Court Remand, D & L Supply Co. v. United States, Consol. Ct. No. 92-06-00424 (Oct. 8, 1997). We affirm.
Representatives of the American iron casting industry first requested that the Department of Commerce ("Commerce") investigate alleged dumping of iron castings from China in a petition alleging an average dumping margin of 25.52%. Upon investigation, Commerce found that the iron castings were being sold in the United States at less than fair value ("LTFV") in an amount equal to 11.66% ad valorem and issued an antidumping order. Commerce next conducted administrative reviews for the periods 1987-88, 1988-89, 1989-90, and 1990-91. Chinese exporters refused to respond to Commerce's questionnaire for the 1990-91 review, so Commerce based the preliminary results on best information available ("BIA"), and set the preliminary margin at 45.92%, the highest final rate from a prior review period. In a redetermination, Commerce set the BIA rate at 92.74%, the rate it calculated for the 1989-90 review period. Because the 92.74% rate was subsequently reduced in litigation covering the 1989-90 review period and was thus invalid, we vacated the Court of International Trade's affirmance of Commerce's use of the 92.74% rate as BIA for the 1990-91 review period. See D & L Supply Co. v. United States, 113 F.3d 1220 (Fed. Cir. 1997) ("D & L Supply III").
On remand, Commerce relied on the 25.52% petition rate. D & L moved for another remand, claiming that Commerce should use as BIA the 11.66% rate it calculated in the final LTFV determination because this is the only valid, accurate rate available. The Court of International Trade affirmed Commerce's antidumping redetermination.
We held in D & L Supply III that Commerce could not rely "on an invalidated prior antidumping duty rate as the `best information available'" and that "[i]nformation that has conclusively been determined to be inaccurate does not qualify as the `best information' under any test and certainly cannot be said to serve the `basic purpose' of promoting accuracy." 113 F.3d at 1223. D & L argues that our holding compels the Conclusion that Commerce may not rely on the petition rate, which was superseded by Commerce's later LTFV determination. It asserts that the petition rate was simply an estimate of average dumping margins alleged by the U.S. producers, while the LTFV rate was calculated by Commerce following a full investigation, and therefore must be more reliable than the petition rate.
D & L Supply III does not compel such a result. In that case, we held that Commerce could not rely on a rate conclusively invalidated in litigation. The petition rate here, however, has never been expressly held invalid. Moreover, Commerce is required by 19 U.S.C. § 1677e(c) (1994) to use BIA when faced with a party who is unwilling or unable to participate in administrative reviews of antidumping duty orders, as were the Chinese producers in this case. Commerce's implementing regulations provide that "[i]f an interested party refuses to provide factual information requested by the Secretary or otherwise impedes the proceeding, the Secretary may take that into account in determining what is the best information available." 19 C.F.R. § 353.37(b) (West 1999).
Courts must sustain an agency's interpretation of a statute if it "falls within the range of permissible construction." Daewoo Elecs. v. International Union, 6 F.3d 1511, 1516 (Fed. Cir. 1993) (quoting Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667 (Fed. Cir. 1992)); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Here, Commerce reasonably selected as BIA a rate which was never invalidated in order to make a final determination despite lack of cooperation by non-responsive exporters. Thus, we defer to Commerce's discretion to use the petition rate on these facts.