OPINION
GORDON, Judge.
Plaintiff Mittal Steel Galati S.A. challenges two decisions of the U.S. Department of Commerce (“Commerce”) during the 2003-2004 administrative review of the antidumping duty order covering certain cut-to-length carbon steel plate from Romania.
See Certain Cut-to-Length Carbon Steel Plate from Romania,
71 Fed. Reg. 7,008 (Dep’t of Commerce Feb. 10, 2006)
(final results
and partial rescission) (“Final
Results
”). First, Plaintiff contends that Commerce erred in assigning Plaintiff a total adverse facts available rate of 75.04 percent
ad valorem.
Second, Plaintiff contends that Commerce’s policy of issuing liquidation instructions within 15 days of the publication of the final results of an administrative review is
per se
unlawful.
The court has jurisdiction to review Plaintiffs first issue pursuant to 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). The court has jurisdiction to review Plaintiffs second issue under the same jurisdictional provision, or alternatively, under 28 U.S.C. § 1581© (2000).
As discussed further below, Plaintiffs total adverse facts available rate of 75.04 percent is supported by substantial evidence and is in accordance with law. Also, Commerce’s 15-day liquidation instruction policy is in accordance with law. The court therefore sustains Commerce’s
Final Results
and denies Plaintiffs motion for judgment on the agency record.
II. Standard of Review
When reviewing Commerce’s administrative review final results under 28 U.S.C. § 1581(c) (2000), the Court of International Trade sustains Commerce’s determinations, findings, or conclusions unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i). More specifically, when reviewing whether Commerce’s actions are unsupported by substantial evidence, the Court assesses whether the agency action is “unreasonable” given the record as a whole.
Nippon Steel Corp. v. United States,
458 F.3d 1345, 1350-51 (Fed.Cir.2006). When reviewing Commerce’s actions under 28 U.S.C. § 1581®, the Court holds unlawful an agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2000); 28 U.S.C. § 2640(e) (2000).
III. Discussion
A. Adverse Facts Available Rate
In the preliminary results of the administrative review, Commerce calculated an antidumping duty rate of 48.90 percent
ad valorem
for Plaintiff.
Certain CuC-to-Length Carbon Steel Plate from Romania,
70 Fed.Reg. 53,333, 53,338 (Dep’t of Commerce Sept. 8, 2005) (preliminary results)
(“Preliminary Results
”). After the
Preliminary Results,
Plaintiff informed Commerce that it discovered a significant quan
tity of subject merchandise that it failed to report in the administrative review, but Plaintiff did not disclose the quantity or value of the unreported subject merchandise. Shortly after this revelation, Plaintiff abruptly curtailed its participation in the proceeding by foregoing a scheduled cost verification and removing its business proprietary data from the record.
Final Results,
71 Fed.Reg. at 7,010.
In the
Final Results
Commerce found that Plaintiff had both withheld information and significantly impeded the administrative review, requiring Commerce to use facts otherwise available to complete the review.
Id.
Commerce also found that Plaintiff had failed to cooperate by not acting to the best of its ability to comply with a request for information, justifying application of adverse facts available.
Id.
at 7,011. Plaintiff does not challenge these findings.
See
Pl.’s Mot. J. Agency R. at 10. Plaintiff instead challenges the 75.04 percent rate that Commerce selected and assigned as total adverse facts available.
Id.
at 11.
In a total adverse facts available scenario, Commerce may not be able to calculate an antidumping rate for the uncooperative respondent because the information required for such a calculation (the respondent’s sales and cost information for the subject merchandise during the period of review) typically is not available or has not been provided. As a substitute, Commerce relies on the petition, the final determination from the investigation, prior administrative reviews, or other information placed on the record, 19 U.S.C. § 1677e(b), to select a proxy that should be a “reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.”
F.LLI De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States,
216 F.3d 1027, 1032 (Fed.Cir.2000) (“de Ceceo”).
Among the rates available to Commerce in the administrative proceeding were the 48.90 percent rate calculated for Plaintiff in the
Preliminary Results
and the 75.04 percent all others rate that was derived from the petition when Romania was a non-market economy.
In the
Final Results
Commerce reasoned that any adverse facts available rate for Plaintiff needed to be higher than 48.90 percent.
Issues and Decision Memorandum for Administrative Review of Certain Cut-to-Length Carbon Steel Plate from Romania,
at 15-16, A-485-803, ADR: 08/01/2003-07/31/2004 (Feb. 6, 2006),
available at
http://ia.ita.doc. gov/frn/summary/romania/E6-1880-l.pdf,
(“Decision Memorandum”).
That rate was a cooperative rate — Plaintiffs noncompliance occurred after it was calculated, and Commerce inferred that Plaintiffs actual rate was therefore higher than 48.90 percent.
See Decision Memorandum
at 10-11 (“an adverse inference is warranted”). Commerce also believed that a rate higher than 48.90 percent would serve as a deterrent to Plaintiffs future non-compliance.
See Final Results,
71 Fed.Reg. at 7011. These conclusions are both reasonable and consistent with the adverse facts available provision of the antidumping statute and the Federal Circuit’s guidance in
De Ceceo.
The only rate higher than 48.90 percent was the all-others rate of 75.04 percent, which Commerce first cor
roborated and then assigned to Plaintiff.
Id.
Plaintiff first contends that the statutory provisions governing non-market economy calculations prohibit the assignment of a non-market economy rate within a subsequent market economy proceeding.
See
Pl.’s Mot. J. Agency R. at 11-16; Pl.’s Reply Br. at 3-4 (citing 19 U.S.C. § 1677b(c)(l)). The court reviews disputed interpretations of the antidumping statute under the framework provided in
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court first considers whether Congressional intent on the issue is clear, and if not, whether Commerce’s interpretation is reasonable.
Id.; Dupont Teijin Films USA, LP v. United States,
407 F.3d 1211, 1215 (Fed.Cir.2005).
Here, Congressional intent is clear. The express language of the adverse facts available provision authorizes Commerce to rely on information from the petition irrespective of whether that information is from a market or non-market economy proceeding.
See
19 U.S.C. § 1677e(b). When operating in an adverse facts available situation, Commerce needs access to additional sources of information to complete the administrative review. Plaintiffs proposed interpretation would limit the available pool of information on which Commerce may rely, contrary to the purpose of the adverse facts available provision. Therefore, Commerce may, in a market economy proceeding, assign to a respondent a total adverse facts available rate derived from a prior, non-market economy proceeding. Whether Commerce should commingle a non-market economy rate with a market economy proceeding does not go to the question of whether Commerce acted in accordance with law, but to whether that action is reasonable given the facts and circumstances presented by the administrative record—that is— whether it is supported by substantial evidence.
Plaintiff next argues that Commerce, in practice, eschews adverse facts available rates derived solely from the petition in favor of rates that have been calculated with respondent information, and that Commerce’s administrative precedents preclude it as a matter of law from relying solely on petition information for an adverse facts available rate. Pl.’s Reply Br. at 7-8; Pl.’s Mot. J. Agency R. at 16-17.
This is an odd assertion because the statute explicitly authorizes Commerce to rely on petition information in adverse facts available situations.
See
19 U.S.C. § 1677e(b);
De Cecco,
216 F.3d at 1032 (“the statute explicitly allows for use of ‘the petition’ to determine relevant facts when a respondent does not cooperate”). Plaintiff nevertheless suggests that Commerce no longer has that authority, purportedly abandoning it through administrative practice. Pl.’s Reply Br. at 7-8. In actuality, Commerce has not so limited itself.
See, e.g., Stainless Steel Bar from India,
69 Fed.Reg. 55,409, 55,410 (Dep’t of Commerce Sept. 14, 2004) (final results) (using petition rate). A fair reading of the adverse facts available precedents cited by Plaintiff (in which Commerce opted for a rate other than a petition rate) simply demonstrate Commerce exercising its “discretion to choose which sources and facts it will rely on to support an adverse inference when a respondent has been shown to be uncooperative ... [to] create the prop
er deterrent to non-cooperation ... and assure a reasonable margin.”
De Cecco,
216 F.3d at 1032. The more relevant question is not whether Commerce’s administrative precedents preclude Commerce as a matter of law from relying on an adverse facts available rate derived solely from petition information—they do not—but the extent to which they inform the reasonableness of Commerce’s selection of such a rate.
Standing alone, a 12-year old petition rate from a non-market economy proceeding may not seem to be an appropriate proxy for a market economy dumping margin. In the context of the
Final Results,
however, the assigned rate is a reasonable, if not correct, choice. As already noted, Plaintiff received a cooperative 48.90 percent rate in the
Preliminary Results.
Af-terwards, Plaintiff disclosed that it failed to report subject merchandise, declined to participate in a scheduled cost verification, and removed all of its proprietary information from the administrative record. Plaintiffs conduct led Commerce to infer that Plaintiffs actual dumping rate was higher than .48.90 percent. Exactly how much higher is not ascertainable because Plaintiff removed its sales and cost data from the record. Ideally, the proxy rate selected for Plaintiff should be a “reasonably accurate estimate of the respondent’s actual rate,” (something higher than 48.90 percent), “with some built-in increase intended as a deterrent to non-compliance.”
De Cecco,
216 F.3d at 1032. When viewed in this light, the 75.04 percent rate seems not only reasonable, but a logical and appropriate choice.
The only remaining consideration is the reasonableness of Commerce’s corroboration of the rate pursuant to 19 U.S.C. § 1677e(c). The statute’s corroboration requirement provides that if Commerce relies upon secondary information, Commerce “shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.” 19 U.S.C. § 1677e(c). The statute does not prescribe any methodology for corroborating secondary information, but the Statement of Administrative Action explains that “corroborate” means that Commerce should satisfy itself that any secondary information used has “probative value.”
See
Uruguay Round Agreements Act Statement of Administrative Action, H.R. REP. NO. 103-316, vol. 1 at 870 (1994),
reprinted in
1994 U.S.C.C.A.N. 3773, 4199. Commerce assesses the probative value of secondary information by examining the reliability and relevance of the information to be used.
See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom,
70 Fed.Reg. 54,711, 54,712-13 (Sept. 16, 2005) (final results).
Plaintiff alleges in its opening brief that Commerce’s corroboration efforts were not reasonable because the 75.04 percent rate was calculated in 1992 using a non-market economy methodology, and is therefore outdated, unreliable, aberrational, and irrelevant.
See
Pl.’s Mot. J. Agency R. at 17-28. These arguments are unpersuasive, though, because Plaintiff fails to acknowledge the cooperative 49.80 percent margin that Plaintiff received in the
Preliminary Results. See Id.
Indeed, it is not until its reply brief that Plaintiff begins to address the meaning and import of this central fact from the administrative record. See Pl.’s Reply Br. at 5-6, 7, 14.
Contrary to Plaintiffs claims, Commerce’s corroboration of the 75.04 percent rate was reasonable. Commerce transferred documentation from the record in the 2002-2003 administrative review which contained both market economy and non-market economy data specific to Plaintiff.
See Total Adverse Facts Available and
Corroboration Memorandum for Company Rate for Administrative Review of Certain Cut-to-Length Carbon Steel Plate from Romania,
at 6, A-485-803, ADR: 08/01/2003-07/31/2004 (Feb. 6, 2006)
(“Corroboration Memo”)
(Pub. R. 143).
In comparing the 75.04 percent rate with Plaintiffs data from the previous administrative review, Commerce found the rate conservative because there were sales exceeding 75.04 percent rate, and there were sales below that rate but within a ten percent range.
Id.
at 7. Commerce reasonably concluded that these rates were “sufficiently approximate to the 75.04 percent, to establish the reliability of the 75.04 percent rate to be used as the adverse facts available rate.”
Id.
See Ta Chen Stainless Steel Pipe, Inc., v. United States,
298 F.3d 1330, 1339-40 (Fed.Cir.2002) (“Commerce acts within its discretion so long as the rate chosen has a relationship to the actual sales information available.”)
Relying on
Shandong Huarong General Group Corp. v. United States,
29 CIT-, 2005 WL 2365322 (Sept. 27, 2005) and
Am. Silicon Techs. v. United States,
26 CIT 1216, 240 F.Supp.2d 1306 (2002), Plaintiff argues that Commerce’s use of transaction-specific margins in corroborating the 75.04 percent rate was unreasonable.
See
Pl.’s Mot. J. Agency R. at 23-28. Those decisions, though, are factually dissimilar from this case. In
Am. Silicon
the highest transaction-specific margin relied on by Commerce in selecting an adverse facts available rate was 25 percent lower than the rate selected. Likewise, in
Shandong Huarong
not one of the transaction-specific margins relied on by Commerce was as high as the adverse facts available rate selected. Here, on the other hand, Commerce relied on sales margins that exceeded 75.04 percent as well as sales with a calculated margin within a ten percent range of the AFA rate.
Corroboration Memo
at 7.
To the extent the corroboration provision is designed to provide respondents with an incentive to cooperate while avoiding the imposition of punitive, aberrational, or uncorroborated margins,
see De Cecco,
216 F.3d at 1032, Commerce’s corroboration analysis of the 75.04 percent rate satisfied that framework here. In sum, Plaintiffs total adverse facts available rate of 75.04 percent is supported by substantial evidence and is in accordance with law.
B. Liquidation Instruction Policy
Plaintiff also presents a facial challenge to Commerce’s policy of issuing liquidation instructions to United States Customs and Border Protection (“Customs”) within 15 days of publication of the final results of an administrative review in the Federal Register. See http://ia.ita.doc.gov/ download/liquidation-announcementhtml (Aug. 9, 2002).
The Court of International Trade’s recent decision in
SKF USA Inc. v. United States,
31 CIT -, 2007 WL 867308 (Mar. 23, 2007)
(“SKF”)
requires a brief discussion of jurisdiction before turning to the merits. In
SKF
the court held that 28 U.S.C. § 1581® (2000), and not 28 U.S.C. § 1581(c) (2000), is the correct jurisdictional basis for a claim like Plaintiffs because the agency action — issuing liquidation instructions — is technically not part of the final results of the administrative review and therefore not covered by 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C.
§ 1581(c) (2000).
SKF,
2007 WL 867808, **3-5. In this case though, Plaintiff challenged Commerce’s liquidation instruction policy during the administrative review, and Commerce squarely addressed Plaintiffs claim in the
Decision Memorandum.
One could argue that the matter was therefore included within the
Final Results
of the administrative review and covered by 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2000).
See, e.g., Am. Signature, Inc. v. United States,
31 CIT-, 477 F.Supp.2d 1281 (2007) (holding that section 1581(c) is proper jurisdictional basis to review issue that Commerce addressed in administrative proceeding). The parties do not dispute that section 1581(c) is a proper jurisdictional basis.
However vexing this jurisdictional question may be, it is largely academic in this case because the Court of International Trade ultimately has jurisdiction to hear the claim, whether under section 1581(c) or 1581(i). And although these jurisdictional provisions have different standards of review,
Plaintiffs claim is reviewed identically under each; it involves a question of law requiring statutory interpretation and the possible application of
Chevron,
467 U.S. at 842-45, 104 S.Ct. 2778.
Defendant argues somewhat halfheartedly that the matter is non-justicia-ble, making general assertions that Plaintiff has “not been injured and no remedy is available,” and that Plaintiffs claims are merely “speculative.” Def.’s Resp. Mot. J. Agency R. at 21-22. The court disagrees. Plaintiffs facial challenge to the lawfulness of the liquidation instruction policy is appropriate for judicial review.
See SKF,
2007 WL 867308, **5-8.
On the merits, Plaintiff contends that Commerce may not issue liquidation instructions within the combined 60-day period established by section 1516a(a)(2)(A) for commencing an action in the Court of International Trade (30 days to file a summons, and 30 days thereafter to file a complaint).
See
Pl.’s Mot. J. Agency R. at 33-35. Plaintiff argues that if Commerce does, then entries subject to the administrative review could be liquidated before an interested party perfected its cause of action and obtained an injunction against liquidation.
Id.
This would moot one’s claim challenging assessed duties for subject entries.
See Mukand Int’l Ltd. v. United States,
30 CIT -, -, 452 F.Supp.2d 1329, 1333-34 (2006) (citing
Zenith Radio Corp. v. United States,
710 F.2d 806, 810 (Fed.Cir.1983);
Ugine & Alz Belgium v. United States,
452 F.3d 1289, 1291-92 (Fed.Cir.2006)).
To support its claim, Plaintiff cites
Tianjin Mach. Imp. & Exp. Corp. v. United States,
28 CIT-, 353 F.Supp.2d 1294 (2004), which states:
On its face, then, § 1516a(2)(A) allows a plaintiff to
wait
thirty days before filing its summons, and to
wait
an additional thirty days before filing its complaint. The fact that a party
could
file both its summons and complaint within fifteen days is immaterial. Because Commerce’s fifteen-day liquidation policy directly contravenes the time frame established by § 1516a(2)(A) for filing a summons and a complaint, the Court
finds that Commerce’s new policy is not in accordance with law.
Tianjin,
28 CIT at-, 353 F.Supp.2d at 1309 (emphasis in original).
Tianjin,
in effect, reads an implied stay of liquidation into section 1516a. In Mu-kand this judge read the applicable statutes differently and concluded that the statutory framework “does not administratively suspend or automatically stay liquidation following the final results of an administrative review while an interested party decides whether or not to commence an action or move for an injunction.”
Mukand,
30 CIT at-, 452 F.Supp.2d at 1334. As
Mukand
explained:
[The statute] provides that the Court of International Trade
“may
enjoin the liquidation of some or all entries ... covered by a determination of [Commerce] ...,
upon a request by an interested party
for such relief and a proper showing that the requested relief should be granted under the circumstances.” 19 U.S.C. § 1516a(c)(2) (emphasis added). The statute further provides that “[u]nless such liquidation is enjoined by the court,” entries “shall be liquidated in accordance with the determination of [Commerce] ...” 19 U.S.C. § 1516a(c)(l) (emphasis added), which Customs carries out “promptly and, to the greatest extent practicable, within 90 days” after Commerce issues instructions. 19 U.S.C. § 1675(a)(3)(B). Congress therefore placed the responsibility on interested parties to act affirmatively and request an injunction.
Id.
(emphasis in original).
Moreover, the antidumping statute expressly authorizes Commerce to issue liquidation instructions following an administrative review, but does not prescribe a schedule or methodology for doing so.
See
19 U.S.C. § 1675(a)(3)(B). There is therefore a gap in the statute that Congress left for Commerce to fill.
See, e.g., Viraj Group v. United States,
476 F.3d 1349, 1357-58 (Fed.Cir.2007) (applying
Chevron,
467 U.S. at 844, 104 S.Ct. 2778). Commerce filled the gap by issuing a policy statement on August 9, 2002, notifying interested parties that Commerce intends to issue liquidation instructions within 15 days of publication of the final results of review in the Federal Register. For five years Commerce has consistently notified interested parties of the policy in the final results of administrative reviews.
Commerce has a number of factors to consider when issuing liquidation instructions. Instructions need to be transmitted to Customs in a timely manner because entries remaining unliquidated on the six-month anniversary of the Federal Register publication date are deemed liquidated at the rate asserted at the time of entry.
See Int’l Trading Co. v. United States,
281 F.3d 1268, 1272-73 (Fed.Cir.2002). Also, because Customs “has a merely ministerial role in liquidating anti-dumping duties,”
Mitsubishi Elecs. Am., Inc. v. United States,
44 F.3d 973, 977 (Fed.Cir.1994), the onus is on Commerce to transmit correct liquidation instructions to Customs.
For now, the court cannot say that Commerce’s gap-filling is unreasonable, and accordingly, Plaintiffs facial challenge to the 15-day liquidation instruction policy must fail. That said, the policy is not without its flaws. As Commerce and Customs continue to improve the efficiency and automation of the liquidation process, there exists the possibility Commerce and Customs may “act so quickly,”
Int’l Trading,
281 F.3d at 1273, as to practically foreclose interested parties from obtaining judicial review of subject entries pursuant to 19 U.S.C. § 1516a, and such a foreclosure would render Commerce’s policy unreasonable. Just how quickly is too quickly will
unfortunately have to be sorted out on a case by case basis. In
Mukand,
for example, the entries were liquidated 75 days after publication of the final results in the Federal Register, and the court ruled as a matter of law that Commerce (and Customs) had not acted too quickly.
Mukand,
30 CIT at -, 452 F.Supp.2d at 1334.
Admittedly, the policy and its potential threat of rapid liquidation leaves interested parties contemplating suit in the Court of International Trade in a difficult situation. The lack of certainty of when liquidation will occur,
coupled with the rule that liquidation moots a challenge to the assessed rates of the subject entries,
practically, if not necessarily, requires interested parties to file a protective summons, complaint, and motion for a preliminary injunction against liquidation almost immediately after publication of the final results in the Federal Register, and also obtain a temporary restraining order (“TRO”) against liquidation pending the Court of International Trade’s issuance of a preliminary injunction.
Aware of this predicament, the court in
Mukand
proposed a minor augmentation to Commerce’s liquidation policy that might prevent judicial review of antidump-ing administrative reviews from devolving unnecessarily into a TRO-based practice:
Commerce can issue instructions that direct Customs to liquidate no earlier than (1) the date that is 90 days after the
Federal Register
publication date, and no later than (2) the six-month anniversary of that publication date unless liquidation is enjoined pursuant to court order.
Mukand,
452 F.Supp.2d at 1334-35. This though remains unsolicited advice. Commerce has the gap-filling discretion (bounded by the requirement of reasonableness), and it is ultimately for Commerce to decide whether a review and possible revision of its liquidation instruction policy would be worthwhile.
IV. Conclusion
The court denies Plaintiffs motion for judgment on the agency record and will enter judgment in favor of Defendant sustaining Commerce’s
Final Results.
JUDGMENT
This case having been submitted for decision, and the court, after due deliberation, having rendered an opinion; now in conformity with this opinion, it is hereby
ORDERED that Plaintiffs motion for judgment on the agency record is denied; and it is further
ORDERED that judgment is entered for Defendant.