633 F.Supp. 1364 (CIT. 1986), 85-4-00467, Badger-Powhatan, A Div. of Figgie Intern., Inc. v. United States

Docket Nº:Court No. 85-4-00467.
Citation:633 F.Supp. 1364
Party Name:BADGER-POWHATAN, A DIVISION OF FIGGIE INTERNATIONAL, INC., Plaintiff, v. The UNITED STATES, Defendant, Rubinetterie A. Giacomini, S.P.A., Intervenor.
Case Date:April 02, 1986
Court:Court of International Trade
 
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Page 1364

633 F.Supp. 1364 (CIT. 1986)

BADGER-POWHATAN, A DIVISION OF FIGGIE INTERNATIONAL, INC., Plaintiff,

v.

The UNITED STATES, Defendant,

Rubinetterie A. Giacomini, S.P.A., Intervenor.

Court No. 85-4-00467.

United States Court of International Trade.

April 2, 1986

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Stewart & Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr.), for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Velta A. Melnbrencis, Civil Div., Dept. of Justice, for defendant.

Law Office of Larry Klayman, P.C. (Larry Klayman, John M. Gurley), for intervenor.

OPINION

RESTANI, Judge:

In this action, plaintiff, Badger-Powhatan, a division of Figgie International, Inc., challenges the method of calculation used to determine the less than fair value (LTFV) margin in the antidumping duty order issued by the United States Department of Commerce International Trade Administration (ITA) regarding certain brass fire protection products from Italy. 50 Fed.Reg. 8354 (1985). Specifically, plaintiff claims ITA erred by failing to recalculate the LTFV margin after the International Trade Commission (ITC) determined that only a subclass of the class of merchandise sold at LTFV is causing material injury to an industry in the United States. Plaintiff has moved for judgment upon the agency record on the merits of its position. 1 CIT Rule 56.1. In response, defendant seeks a remand of the action for a recalculation

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of the LTFV margin in accordance with the method proposed by plaintiff. Intervenor, Rubinetterie A. Giacomini, S.P.A. (Giacomini), opposes the positions of both plaintiff and defendant. It contends that the original determination is correct and that a recalculation of the LTFV margin is prohibited by statute.

The basic facts underlying this controversy are undisputed. Plaintiff is a domestic producer of brass fire protection products. On January 3, 1984, plaintiff filed an antidumping petition with ITA and ITC pursuant to 19 U.S.C. § 1673a(b) (1982). The petition alleged that imports of brass interior fire protection products were being, or were likely to be, sold in the United States, at less than their fair value. In addition, the petition alleged that such products materially injured or threatened to materially injure the domestic industry producing interior fire protection products. See 19 U.S.C. § 1673a(b)(1) (1982); 19 U.S.C. § 1673 (1982 & West Supp.1985). The petition defined the class or kind of imported merchandise as brass valves, connections, nozzles, and couplings which serve as components in interior fire protection systems to control the flow and direction of water through such systems. The specific products involved were described as:

1. fire hose couplings (1 1/2 and 2 1/2 inch),

2. fog/straight steam nozzles (1 1/2 and 2 1/2 inch),

3. angle-type hose valves (1 1/2 and 2 1/2 inch),

4. wedge-disc hose gate valves (2 1/2 inch),

5. single and double clapper siamese fire department connections (2 1/2 inch inlet and 4 inch outlet),

6. pressure restricting valves, and

7. pressure regulating valves. 2

On February 21, 1984, in response to plaintiff's petition, ITA published notice of initiation of antidumping investigations. See 19 U.S.C. § 1673a(c)(2) (1982) (requires ITA to make determination on petition and, if determination is affirmative, to commence investigation and publish notice in Federal Register ); 49 Fed.Reg. 6396 (1984) (notice of initiation of antidumping investigations at issue). The notice of initiation of investigations indicates that the investigations were to cover the seven products described in plaintiff's petition. 49 Fed.Reg. 6396 (1984).

ITC issued a preliminary determination on March 1, 1984, that concluded that there was a reasonable likelihood that the brass fire protection products under investigation were causing material injury to United States industries. Certain Valves, Nozzles, and Connectors of Brass from Italy for Use in Fire Protection Systems, U.S.I.T.C. Public. 1500, Investigation No. 731-TA-165 (Preliminary), 49 Fed.Reg. 4046 (1984); 19 U.S.C. § 1673b(a) (1982). On July 10, 1984, ITA published an affirmative preliminary determination of sales at LTFV. 49 Fed.Reg. 28,083 (1984); 19 U.S.C. § 1673b(b) (1982). This determination was also based on an investigation that included all seven products. At that time ITA preliminarily determined the weighted-average margin of sales at LTFV to be 1.16%. Id. at 28,083, 28,084.

On November 30, 1984, ITA published its final affirmative determination of sales at LTFV. 49 Fed.Reg. 47,066 (1984). ITA identified the merchandise covered by the investigation as the same seven products. Id. at 47,066, 47,067. The determination announced a weighted-average LTFV margin of 3.47% for this class or kind of merchandise. Id. at 47,073. Following the signing of the final LTFV determination, the confidential versions of computer printouts

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containing LTFV margin calculations were disclosed to counsel for both Badger-Powhatan and Giacomini. After examining the data, counsel for Giacomini and Badger-Powhatan identified clerical and factual errors in the analysis. In response to these comments, ITA published an amendment to its final affirmative LTFV determination, changing the weighted-average LTFV margin for all seven categories of merchandise to 1.28%. 50 Fed.Reg. 1099 (1985).

Subsequent to the ITA determination that the seven products were being sold at LTFV, ITC issued its final determination on material injury. Certain Valves, Nozzles, and Connectors of Brass from Italy for Use in Fire Protection Systems, U.S.I.T.C. Public. 1649, Investigation No. 731-TA-165 (Final), 50 Fed.Reg. 7971 (1985); 19 U.S.C. § 1673d(b) (1982 & West Supp.1985). ITC, by majority decision, determined that industries in the United States are materially injured by reason of imports from Italy of single and double clapper siamese connections and pressure-restricting valves. It further found that the other five products from Italy were not causing or threatening to cause material injury to a United States industry.

After being notified of the ITC findings, ITA published an antidumping duty order. Antidumping Duty Order: Certain Brass Fire Protection Products from Italy, 50 Fed.Reg. 8354 (1985); 19 U.S.C. § 1673e (1982). The order identified the merchandise covered by the investigation as the original seven products. It then noted the material injury findings of ITC, and issued the following order:

[T]he Department directs United States Customs officers to assess ... antidumping duties equal to the amount by which the foreign market value of the merchandise exceeds the United States price for all entries of certain brass fire protection products, which include single and double clapper siamese fire department connections and pressure restricting valves.

50 Fed.Reg. 8354-55. These duties are to be assessed solely on imports of single and double clapper siamese fire department connections and pressure restricting valves from Italy. 3 Id. at 8355. The estimated weighted-average antidumping duty margin adopted was that published in the amended final affirmative LTFV determination (1.28%), based on data on the aggregate value of Giacomini's U.S. sales of all seven products. Id.; 50 Fed.Reg. 1099.

Plaintiff now moves for judgment upon the agency record on the issue of the propriety of ITA's calculation of the estimated antidumping duty deposit rate based upon the weighted-average LTFV margin for all seven product categories. 4 Plaintiff argues that data relevant to the five product categories not subject to antidumping duties should not have been included in the

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LTFV margin calculations. 5 Instead, plaintiff contends, the estimated antidumping duty deposit rate should be based solely upon the weighted-average LTFV margin for the two product categories identified in the antidumping order. Defendant responds by agreeing to base future deposits of estimated duties upon a recalculated LTFV margin determined for the two products involved. To this end, it seeks a remand of the action to ITA for recalculation of the LTFV margin and amendment of the order. On the other hand, intervenor Giacomini contends that ITA's use of a weighted-average LTFV margin that includes margins for the entire class or kind is proper under these circumstances. Furthermore, it contends that a recalculation of the LTFV margin would constitute a prohibited second final determination. Intervenor, then, not only challenges the grounds supporting a change in the order, but also ITA's authority to implement such a change.

The first issue the court must address is whether ITA, having rendered its final determination as to the LTFV margin, may now alter the basis of its calculation. 6 It is now well established that amendment, before or after remand, is appropriate when the agency has utilized a legally improper method in making a determination or when the original determination contains an error of inadvertence or mistake. Timken Co. v. United States, 10 CIT 86, 630 F.Supp. 1327, 1332 (1986); Melamine Chemicals, Inc. v. United States, 8 CIT 105, 592 F.Supp. 1338, 1340 (1984); Timken Co. v. United States, 7 CIT ----, Slip Op. 84-63 at 3 (June 5, 1984); Gilmore Steel Corp. v. United States, 7 CIT 219, 585 F.Supp. 670, 674 (1984). 7 The court notes that all parties, including intervenor, seemed to accept the concept of amended final determinations when they participated

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in the calculation of a reduced LTFV margin following the original determination. See discussion supra.

The question has arisen as to whether the court may remand this matter without considering the...

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