Fabrique De Fer De Charleroi S.A. v. U.S., Slip Op. 98-4.
| Decision Date | 16 January 1998 |
| Docket Number | Court No. 93-09-00600-AD.,Slip Op. 98-4. |
| Parties | FABRIQUE DE FER DE CHARLEROI S.A., Plaintiff, v. UNITED STATES of America and the United States Department of Commerce, Defendants, and Geneva Steel et al., Intervenor-Defendants. |
| Court | U.S. Court of International Trade |
Barnes, Richardson & Colburn (Gunter von Conrad and Peter A. Martin) for plaintiff.
Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Velta A. Melnbrencis, Asst. Director, Commercial Litigation Branch, Civil Division, U.S. Dept. of Justice; Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce (Elizabeth C. Seastrum), of counsel, for defendants.
Dewey Ballantine (Alan Wm. Wolff and Michael H. Stein), Skadden, Arps, Slate, Meagher & Flom (Robert E. Lighthizer and John J. Mangan) for intervenor-defendants.
The above-named plaintiff ("Fafer" or "FFC") initially pleaded six causes of action herein, essentially that the International Trade Administration, U.S. Department of Commerce ("ITA") (i) unlawfully amended its final determination of sales of certain cut-to-length carbon steel plate from Belgium at less than fair value1 based on an erroneous recalculation of Fafer's profit data, (ii) unlawfully rejected the model-match selection originally submitted by the company, (iii) unlawfully rejected FFC's clarification of the difference in merchandise adjustment information, (iv) incorrectly included the company's current yearly increase in its pre-pension provision in G & A expense for cost-of-production and constructed-value calculations, (v) unlawfully committed various additional substantive errors in its use of constructed value, cost of production and priceto-price sales, and (vi) unlawfully committed various additional computational and programming errors in its calculation of the weighted-average antidumping-duty margin assigned to Fafer. See Complaint, paras. 5-10.
Subsequent to this pleading, counsel for the plaintiff were invited to present a motion for judgment on the agency record within the meaning of CIT Rule 56.2. And they have done so, albeit focusing only on the first alleged cause of action.2 To quote from plaintiff's statement pursuant to Rule 56.2(c), the ITA
unlawfully amended its final determination based on an erroneous recalculation of Fafer's profit data. Evidence of record establishes that the profit experience of Fafer calculated on a weighted average basis is substantially lower than that derived by the [ITA]. This incorrect calculation ... substantially increased the margin percentage applied to Fafer in the [Antidumping Duty Order and] Amendment to Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From Belgium, 58 Fed. Reg. 44,164 (August 19, 1993).
That increase was from 3.65 to 13.31. As explained in that amendment and now by the defendants, the petitioners before the agency alleged that it had
failed to use all of Fafer's reported profit data in the constructed value calculation for the class or kind of merchandise. The profit data allegedly not used was that for Fafer's "Z-type products," which had profit margins exceeding the eight percent statutory minimum....
"Z-type" steel refers to steel which has gone through special testing and for which the manufacturer supplies a certification guaranteeing the product's "through thickness," or Z-axis, characteristics.... During the investigation, Fafer contended that its U.S. sales of plate products were not of the Z-type, because they had not undergone the requisite testing and certification and, therefore, should not be compared to Fafer's home market sales of Z-type merchandise. ... Petitioners contended the opposite.... Commerce agreed with Fafer. ... Fafer did not then and does not now dispute that its Z-type products belong to the class or kind of merchandise covered by the investigation....
During the investigation, Commerce requested Fafer to supply average profit realized on home market sales of the class or kind of merchandise. ... Fafer failed to provide this information. Instead, initially, it provided cost of production information, from which profit data could be calculated for a limited number of home market sales and products, excluding the Z-type products. ... Subsequently, Commerce requested, and Fafer supplied, cost of production information from which profit data could be calculated for Fafer's home market sales of the Z-type merchandise....
When Commerce recalculated Fafer's profit for its home market sales, including profit for the Z-type products, the result was a profit greater than the statutory minimum. Commerce then used the recalculated profit figure in recalculating constructed value. As a result, Fafer's estimated antidumping duty rate on plate increased substantially....
Defendants' Memorandum, pp. 3-4 (citations omitted; underscoring in original). Counsel for the intervenors claim, among other things, that the ITA calculated profit using all of the products for which Fafer reported data3 and that
its proportional weighting of reported profit on Z-type products and non-Z-type products was proper given the record that Fafer itself created.
Defendant-Intervenors' Memorandum, p. 10 (footnote omitted).
The plaintiff responds that the agency unlawfully used the sampling of Z-type profit to account for a much greater percentage of home-market sales than the record reflects for that particular product; that the ITA unlawfully failed to base pro-fit upon sales of comparable merchandise to the United States; and that it committed reversible error by disguising an unlawful amendment to its final determination as a correction of ministerial error. See Plaintiff's Reply passim.
The court's jurisdiction is pursuant to 28 U.S.C. §§ 1581(c), 2631(c), and its standard for review of the contested agency determination(s) is whether they are unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B); 28 U.S.C. § 2640(b).
Congress has adopted short periods of time within which the ITA must carry out its responsibilities, including issuance of final determinations under 19 U.S.C. § 1673d(a). Subsection (e) of that section 1673d provides that the ITA establish procedures for the correction of ministerial errors in final determinations within a reasonable time after the determinations are issued under this section. Such procedures shall ensure opportunity for interested parties to present their views regarding any such errors. As used in this subsection, the term "ministerial error" includes errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the [ITA] considers ministerial.
And the agency has established such procedures pursuant to this mandate,4 including a definition of ministerial error essentially in haec verba the statute.
As indicated, the plaintiff claims a "substantive methodological change under the guise of a clerical error correction"5 not contemplated by this statutory section, arguing that its last clause is
limited to errors of the same general nature or kind as those connoted by the word "errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like."
Plaintiff's Reply, p. 26. Of course, that clause covers "any other type of unintentional error" which the ITA "considers ministerial," but, even if plaintiff's position that this language "should not be read as a grant of unbridled discretion for Commerce to determine when an act is ministerial in nature"6 is well-taken,7 the court is not persuaded that the agency's approach was anything more than arithmetic. That is, from the beginning the methodology for which the ITA opted was to use constructed value for the foreign market, including profit, as prescribed by 19 U.S.C. §§ 1677b(a)(2) and (e). Compare Notice of Preliminary Determinations of Sales at Less Than Fair Value and Postponement of Final Determinations: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, and Certain Cut-to-Length Carbon Steel Plate From Belgium, 58 Fed.Reg. 7,075, 7,076 (Feb. 4, 1993), with Final Determinations of Sales at less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, and Certain Cut-to-Length Carbon Steel Plate From Belgium, 58 Fed.Reg. 37,083, 37,084 (July 9, 1993). That approach did not change, only the profit calculation in regard thereto. And this court is unable to conclude that this kind of amendment, which admittedly can and did have material impact, is therefore violative of the ITA's authority under section 1673d(e), supra.
The record reflects Fafer sales of Z-type product in its home market but not in the United States during the period of agency investigation. Whereupon the plaintiff argues that
basing profit upon sales of comparable merchandise to the United States by the individual producer under investigation remains the only authoritative method of deriving profit for purposes of the constructed value methodology.
Plaintiff's Reply, pp. 23-24, citing Certain Electric Motors from Japan; Final Determination of Sales of Large Motors at Less Than Fair Value and Suspension of Investigation for Small Motors, 45 Fed.Reg. 73,723 (Nov. 6, 1980). It claims to have been "compelled" to make this argument by defendants' contention herein that it agrees with ITA interpretation of the governing statute as requiring inclusion of profit realized on sales of the entire class or kind of home-market merchandise in constructing value, not just profit realized on the type of goods actually exported to the United States. Compare id. at 20 with Defendants' Memorandum, p. 8.
Whether the...
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