Ad Hoc Committee of Florida v. U.S.

Decision Date11 September 1998
Docket NumberCourt No. 93-02-00102.,Slip Op. 98-131.
Citation25 F.Supp.2d 352
PartiesTHE AD HOC COMMITTEE OF FLORIDA PRODUCERS OF GRAY PORTLAND CEMENT, Plaintiff, v. UNITED STATES, Defendant, and Cementos Caribe, C.A., and Corporación Venezolana de Cementos, S.A.C.A., Defendant-Intervenors.
CourtU.S. Court of International Trade

King & Spalding, (Joseph W. Dorn, Michael P. Mabile, Michael Diehl, and Susan P. Quarngesser), Washington, DC, for Plaintiff.

Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Shalom Brilliant, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice; Office of the Chief Counsel for Import Administration, U.S. Department of Commerce (Lucius B. Lau), of counsel, Washington, DC, for Defendant.

Thompson Coburn (Andrew Jaxa-Debicki), Washington, DC, for Defendant-iIntervenor Cementos Caribe, C.A.

Shearman & Sterling (Thomas B. Wilner, Stephen J. Marzan, Jeffrey M. Winton, Reginald R. Goeke), Washington, DC, for Defendant-Intervenor, Corporación Venezolana de Cementos, S.A.C.A.

OPINION

GOLDBERG, District Judge.

Plaintiff, the Ad Hoc Committee of Florida Producers of Gray Portland Cement ("Ad Hoc"), challenges certain aspects of quarterly foreign market value ("FMV") calculations made by the U.S. Department of Commerce, International Trade Administration ("Commerce"), pursuant to an agreement to suspend an antidumping investigation of gray portland cement and cement clinker from Venezuela. Specifically, plaintiff points to the following three errors in the quarterly FMV calculations: (1) Commerce erroneously based constructed value ("CV") on export cement, rather than on home market comparison merchandise; (2) Commerce erroneously directed respondents to capitalize and amortize major maintenance expenses; and (3) Commerce erroneously allowed a circumstance of sale adjustment for technical service expenses.

Commerce first responds that plaintiff's entire suit should be rejected as moot. In the alternative, Commerce defends its quarterly FMV calculations as to plaintiff's first two allegations, yet concedes that it erred with respect to the COS adjustment. Defendant-intervenor, Cementos-Caribe, C.A. ("Caribe"), maintains that Commerce correctly allowed the COS adjustment.

The Court concludes that this suit should not be dismissed on mootness grounds. The Court, however, rejects all three of plaintiff's challenges to the FMV calculations. Accordingly, plaintiff's motion for judgment on the agency record is denied.

I. BACKGROUND

This case revolves around two quarterly FMV calculations issued by Commerce on September 21, 1992 and December 20, 1992, in accordance with an agreement to suspend an antidumping investigation of gray portland cement and cement clinker from Venezuela.1 See Notice of Suspension of Investigation Gray Portland Cement and Clinker from Venezuela, 57 Fed.Reg. 6706 (1992) ("Notice of Suspension Agreement"). The relevant facts informing the discussion are set forth below.

In response to a petition filed by Ad Hoc, Commerce initiated an antidumping investigation on June 14, 1991 to determine whether Venezuelan producers of gray portland cement were making sales in the United States at less than fair value. See Notice of Initiation of Antidumping Duty Investigation: Gray Portland Cement and Clinker from Venezuela, 56 Fed.Reg. 27496 (1991). Commerce then published its preliminary affirmative determination of sales at less than fair value on November 4, 1991. See Preliminary Determination of Sales at Less Than Fair Value: Gray Portland Cement and Clinker from Venezuela, 56 Fed.Reg. 56390 (1991) ("Preliminary Determination"). Significantly, in the Preliminary Determination Commerce based FMV for respondent Corporación Venezolana de Cementos S.A.C.A. ("Vencemos") on home market and third country sales. Id. at 56392. Before completing the final phase of the investigation, however, Commerce and the Venezuelan respondents, Caribe and Vencemos, entered an agreement to suspend the investigation pursuant to 19 U.S.C. § 1673c(b)(2) (1988). See Notice of Suspension Agreement.

The purpose of the agreement at issue, as with any suspension agreement, is to ensure that respondents revise their prices to eliminate sales of subject merchandise to the United States at less than fair value. See 19 U.S.C. § 1673c(b) (1988). Towards this end, this particular suspension agreement requires Commerce, unlike in the Preliminary Determination, to calculate FMV based on the constructed value of the merchandise, as defined in 19 U.S.C. § 1677b(e). See Notice of Suspension Agreement, 57 Fed.Reg. at 6708. The suspension agreement requires Caribe and Vencemos to submit constructed value data to Commerce on a quarterly basis and in a format prescribed by Commerce. Id. (¶ D). Commerce then uses this quarterly cost data to calculate quarterly FMVs for each signatory respondent. The quarterly FMVs for each calendar quarter then serve as respondents' benchmark sale prices in the next quarter, i.e., the prices at or above which respondents must make sales of subject merchandise to the United States during the subsequent quarter. Id. at 6707-08(¶ C). The suspension agreement also allows the interested domestic parties access to the submitted data as well as to the results and methodologies employed by Commerce. Id. at 6708(¶ E). In addition, all interested parties may submit written comments upon the release of the quarterly FMV calculation and, once during each year, the parties may request a hearing on issues raised during the course of the proceedings. Id.

In the underlying administrative proceeding, plaintiff objected to numerous aspects of both the September 21, 1992 and the December 20, 1992 FMV calculations,2 including the three issues raised in this case. The genesis of these objections is as follows. On August 31, 1992, Vencemos and Caribe submitted their CV data for the April 1, 1992 to June 30, 1992 quarter. In accordance with the suspension agreement, Commerce was to make its September 20, 1992 FMV calculations from this data and, thereby, set the benchmark prices for the following quarter. See Notice of Suspension, 57 Fed.Reg. at 6707-08 (¶¶ C-4 and D). On September 8, 1992, Ad Hoc submitted comments to Commerce concerning respondents' August 31, 1992 responses. In relevant part, Ad Hoc complained that (1) Vencemos improperly reported cost data solely for "export quality" ES-40 cement produced at its Pertigalete II plant (i.e., its most modern plant), rather than weight-averaging cost data for home market cement produced at all of its plants; (2) Vencemos erroneously amortized major maintenance costs associated with the shutdown of production facilities over the succeeding twelve months, rather than expensing them in the year in which they were incurred; and (3) Caribe improperly treated its technical service expense as a direct home market selling expense, instead of an indirect selling expense. See Letter from Joseph W. Dorn, Counsel for Ad Hoc, to Barbara H. Franklin, Secretary of Commerce, Transmitting Comments on Vencemos' Aug. 31, 1992 Questionnaire Response 1-11 (Sept. 8, 1992); Letter from Joseph W. Dorn, Counsel for Ad Hoc, to Barbara H. Franklin, Secretary of Commerce, Transmitting Comments on Caribe's Aug. 31, 1992 Questionnaire Response 10 (Sept. 8, 1992). Notwithstanding these critiques, Commerce issued quarterly FMV calculations on September 21, 1992, without revising any of the alleged errors noted by Ad Hoc.

Similarly, on November 2, 1992, Vencemos and Caribe submitted their CV data for the July 1, 1992 to September 30, 1992 quarter. Ad Hoc submitted comments to Commerce on November 9, 1992, containing substantially the same objections raised with respect to respondents' August 31, 1992 responses. See Letter from Joseph W. Dorn, Counsel for Ad Hoc, to Barbara H. Franklin, Secretary of Commerce, Transmitting Comments on Vencemos' Nov. 2, 1992 Questionnaire Response 1-4 (Nov. 9, 1992); Letter from Joseph W. Dorn, Counsel for Ad Hoc, to Barbara H. Franklin, Secretary of Commerce, Transmitting Comments on Caribe's Nov. 2, 1992 Questionnaire Response 7 (Nov. 9, 1992). Again, when it issued the December 20, 1997 FMV calculations, Commerce did not account for the alleged errors noted by Ad Hoc. Thereafter, on February 17, 1993, Ad Hoc initiated this suit to contest Commerce's action during the course of the suspension agreement proceedings.

Before the court could rule on the merits of plaintiff's case, however, Commerce filed a motion to dismiss for lack of subject-matter jurisdiction. In particular, Commerce argued that the quarterly FMV calculations were not final agency decisions, but rather interim decisions, which could be considered as part of an administrative review(s) pursuant to 19 U.S.C. § 1675(a)(1)(C) (1988). As a result, Commerce maintained that plaintiff's case is premature, and therefore, the court lacks jurisdiction to review the case.

The court rejected Commerce's motion to dismiss for lack of jurisdiction, holding that the court could consider the case under its residual jurisdiction authority, 28 U.S.C. § 1581(i). See Ad Hoc Comm. of Florida Producers of Gray Portland Cement v. United States, 18 CIT 1001, 1007, 866 F.Supp. 576, 581 (1994) ("Ad Hoc I"). To reach this holding, the court reasoned that (1) review of the quarterly FMV calculations is not provided for under other subsections of section 1581, and (2) even if review under another subsection were available, it would be manifestly inadequate. 18 CIT at 1005-07, 866 F.Supp. at 579-81. Accordingly, the court determined that it was appropriate to exercise its residual jurisdiction under section 1581(i).

On June 4, 1997, this case was reassigned from Senior Judge Musgrave to Judge Goldberg. Against this backdrop, the Court now considers whether judgment on the agency record should be granted in plain...

To continue reading

Request your trial
8 cases
  • Consolidated Bearings Co. v. U.S.
    • United States
    • U.S. Court of International Trade
    • 5 Junio 2001
    ...upon the Court to independently assess the jurisdictional basis for a case, see Ad Hoc Comm. of Fla. Producers of Gray Portland Cement v. United States, 22 CIT ___, ___, 25 F.Supp.2d 352, 357 (1998), a principal that is especially true where a party seeks to invoke the court's residual juri......
  • J.S. Stone, Inc. v. U.S.
    • United States
    • U.S. Court of International Trade
    • 31 Octubre 2003
    ...incumbent upon the court to independently assess the jurisdictional basis for cases that come before it. See Ad Hoc Comm. v. United States, 25 F.Supp.2d 352, 357 (CIT 1998). A. Jurisdiction is Barred Under 28 U.S.C. § 1581(a) When an interested party wants Commerce to assess the actual rath......
  • Shinyei Corp. of America v. U.S.
    • United States
    • U.S. Court of International Trade
    • 14 Febrero 2003
    ...upon the Court to independently assess the jurisdictional basis for a case, see Ad Hoc Comm. of Fla. Producers of Gray Portland Cement v. United States, 22 CIT 902, 906, 25 F.Supp.2d 352, 357 (1998), a principal that is especially true where a party seeks to invoke the court's residual juri......
  • San Vicente Camalu Spr De Ri v. U.S.
    • United States
    • U.S. Court of International Trade
    • 18 Abril 2005
    ...the administrative proceeding is at issue.'" See SVC Response Brief at 8-9 (quoting Ad Hoc Comm. of Florida Producers of Gray Portland Cement v. United States, 22 CIT 902, 908, 25 F.Supp.2d 352, 358 (1998)). But those cases are simply inapposite here. In this action, SVC is not challenging ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT