994 F.Supp. 395 (CIT. 1998), 93-09-00600, Fabrique de Fer de Charleroia S.A. v. United States
|Docket Nº:||Court No. 93-09-00600-AD.|
|Citation:||994 F.Supp. 395|
|Party Name:||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. Slip Op. 98-4.|
|Case Date:||January 16, 1998|
|Court:||Court of International Trade|
Barnes, Richardson & Colburn (Gunter von Conrad andPeter 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.
Opinion & Order
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...
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