Alhambra Foundry Co., Ltd. v. US

• Citation: 12 CIT 1110,701 F. Supp. 221
• Decision Date: 22 November 1988
• Docket Number: No. 86-04-00484.,86-04-00484.
• Parties: ALHAMBRA FOUNDRY CO., LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, and Kejriwal Steel and Iron Works, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

701 F. Supp. 221

12 CIT 1110

ALHAMBRA FOUNDRY CO., LTD., et al., Plaintiffs, v. UNITED STATES, Defendant and Kejriwal Steel and Iron Works, et al., Defendant-Intervenors.

No. 86-04-00484.

United States Court of International Trade.

Decided November 22, 1988.

Collier, Shannon, Rill & Scott, Paul C. Rosenthal and Carol A. Mitchell, Washington, D.C., for plaintiffs.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, U.S. Dept. of Justice, Platte B. Moring, III; U.S. Dept. of Commerce, Office of the Chief Counsel for Intern. Trade, Duane W. Layton, Washington, D.C., for defendant.

Kaplan, Russin & Vecchi, Dennis James, Jr., Washington, D.C., for intervenors.

DiCARLO, Judge:

This action is before the Court to review remand results ordered in Alhambra Foundry Co. v. United States, 12 CIT ___, 685 F.Supp. 1252 (1988) (Alhambra I). Alhambra I directed Commerce to (A) correct certain computational and clerical errors; (B) explain the basis for finding dumping margins to be de minimis; and (C) explain its treatment of Indian government payments as a "cost of materials adjustment" when Commerce treated similar payments as a "circumstance of sale adjustment" in another determination. Upon review of the remand results, the Court finds the remand determination to be according to law and supported by substantial evidence on the record as a whole.

BACKGROUND

The International Trade Administration of the United States Department of Commerce (Commerce) investigated four exporters of iron construction castings from India and determined that one exporter was dumping merchandise, that one exporter was not dumping, and that two other exporters were dumping, at de minimis levels. Certain Iron Construction Castings From India; Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 9486 (Mar. 19, 1986). The Indian exporter found to be dumping challenged that finding in Serampore Indus. v. United States, 11 CIT ___, 675 F.Supp. 1354 (1987) (Serampore I), and 12 CIT ___, 696 F.Supp. 665 (1988) (Serampore II). In Alhambra I, 12 CIT ___, 685 F.Supp. 1252 (1988), United States producers of iron construction castings (the "domestic producers") challenged Commerce's findings of zero and de minimis dumping margins.

DISCUSSION

A. CORRECTED CALCULATIONS

Commerce consented to remand to correct several specific errors. Neither the Indian manufacturers nor the domestic producers contest these remand corrections.

1. Double Counting

Commerce had accounted for excise duty drawback by adding a duty drawback to United States price (USP). On remand Commerce determined that: (1) excise duty on pig iron is a tax and not a customs duty; (2) excise duty drawback was deducted from the foreign market value (FMV) and inadvertently added to USP; and, (3) as a rebate of indirect tax, excise duty drawback should have been deducted from FMV pursuant to 19 U.S.C. § 1677b(e)(1)(A) rather than added to USP. On remand Commerce erased the double counting of excise duty drawback.

Commerce also double counted payments the Indian manufacturer Kejriwal received under the Indian government's Cash Compensatory Support Program. R. 1394-95. Commerce eliminated this error on remand.

2. Physical Difference in Merchandise

At least one exporter sold castings with nuts and bolts, which increased material costs. R. 1429. The domestic producers argued that disregarding this physical difference in merchandise in constructing FMV contravened 19 U.S.C. § 1677b(a)(4)(C) (1982) and 19 C.F.R. § 353.16. On remand, Commerce could not identify an accurate and defensible cost for these nuts and bolts and thus deleted these amounts because of the small percentage of sales involved. See Remand Results at 8.

3. Cancelled Sale

Commerce failed to delete one reported sale that had been cancelled. Conf.R. 1383, 1530. On remand Commerce discovered that instead of cancelling the sale, Commerce had duplicated it at another observation line. Commerce deleted both of these sales in the remand results.

4. Light Castings

One producer exported both "light" and "heavy" iron castings. Conf.R. 1575-80. Light castings receive a tax rebate upon export equal to 10% of f.o.b. value, while heavy castings receive only 5%. Conf.R. 426. On remand, Commerce determined it had incorrectly classified one sale as a heavy casting. Commerce reclassified this sale as a light casting which received the 10% payment.

5. F.O.B. Sales

Although RSI (India) Pvt., Ltd. ("RSI") was billed for freight on the gross weight for certain shipments, RSI charged certain freight costs based on net weight. Conf.R. 1398, 1400. On remand Commerce adjusted these f.o.b. sales for the cost differences between gross and net weight.

6. Bank Charges

Commerce verified that RSI incurred bank charges on its export sales for postage associated with each forwarding schedule. Conf.R. 1376, 1394. Commerce did not adjust for this bank charge in its final determination. On remand Commerce calculated this bank charge on a per pound basis and adjusted FMV to reflect this charge for all sales except those where the credit cost paid by RSI's customer exceeded the total credit charges RSI paid to its bank.

B. EXCLUDING DUMPING MARGINS AS DE MINIMIS

Commerce excluded the remand margins for RSI (0.02%) and Kajaria (0.04%) as de minimis. The Federal Circuit recently affirmed Commerce's power to declare margins to be de minimis:

The de minimis concept is well-established in federal law. Federal courts and administrative agencies repeatedly have applied the de minimis principle in interpreting statutes, even when Congress failed explicitly to provide for the rule. Commerce has long ignored de minimis dumping margins. Plaintiff has given us no reason to disturb this practice.

Although we are not bound by the case law precedent of the United States Court of International Trade, we are in complete agreement with, and adopt as our own, the holding in Carlisle Tire and Rubber Co. v. United States , 10 CIT 301, 634 F.Supp. 419 (1986), that Commerce may find that dumping margins less than 0.50 percent are de minimis, but only if Commerce explains the basis for its decision.

Washington Red Raspberry Comm'n v. United States, 859 F.2d 898, 903 (Fed.Cir. 1988) (footnotes omitted). Both the determination underlying the Federal Circuit's Washington Red Raspberry Comm'n decision, Red Raspberries from Canada; Final Affirmative Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 19,768 (May 10, 1985), and the determination in this action were rendered before Commerce promulgated 19 C.F.R. § 353.24 (1988), a regulation regarding de minimis margins. See Washington Red Raspberry Comm'n v. United States, 12 CIT ___, 670 F.Supp. 1004 (1987), aff'd, 859 F.2d 898 (Fed.Cir.1988). See also Carlisle Tire and Rubber Co. v. United States, 10 CIT 301, 634 F.Supp. 419 (1986).

Commerce states that whether a margin is de minimis does not depend on the existence of other tariffs. While traditional customs tariffs raise revenue or protect domestic industries, Commerce identifies the intent of antidumping duties as offsetting effects of price discrimination. Upon this framework Commerce found the 0.02% and 0.04% dumping margins to be de minimis by applying a "cents per pound" standard. Antidumping duties are assessed on the exporter's net price, i.e., the gross sales price net of items such as freight and insurance. Under the standard applied, the freight charges are high in relation to unit prices because castings are heavy yet relatively inexpensive.

The actual margins for RSI and Kajaria would result in a truly negligible antidumping duty. If estimated duty deposits had been imposed, these companies would have paid less than one hundredth of a cent per pound. See Remand Results at 15. Upon review of Commerce's explanation and the confidential remand results, the Court finds Commerce's determination of de minimis margins to be supported by substantial evidence on the record as a whole and according to law.

C. EXPLANATION OF APPARENTLY INCONSISTENT PRACTICE

The domestic producers argued that Commerce acted inconsistently because it treated Indian Price Reimbursement Scheme (IPRS) payments for steel as a "circumstance of sale adjustment" in Certain Welded Carbon Steel Standard Pipe and Tube From India; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9089, 9091 (Mar. 17, 1986) (the "Sawhill determination"), and then two days later treated IPRS payments for pig iron as an "offset to material costs." Certain Iron Construction Castings From India; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9486 (Mar. 19, 1986).

Noting that "an agency must either conform itself to its prior decisions or explain the reasons for its departure," the Court remanded to Commerce "for an explanation of why the practice in this case is different from Sawhill, or, in the alternative, for recalculation of the IPRS rebates as a circumstance of sale adjustment to conform to the practice approved in Sawhill." Alhambra I, 12 CIT at ___, 685 F.Supp. at 1258.

In this limited remand the Court excluded, on grounds of failure to exhaust administrative remedies, other arguments of the domestic industry concerning Commerce's treatment of IPRS payments. The Court found it appropriate to require the exhaustion of administrative remedies because Commerce did not have an opportunity to comment on those arguments during the administrative investigation. Alhambra I, 12 CIT at ___, 685 F.Supp. at 1257.

Before undertaking to explain why Commerce did not make the same adjustments for IPRS payments in Sawhill and Alhambra I, Commerce's Office of Investigations solicited comments from the interested parties:

In Alhambra I, the Court of International Trade remanded the antidumping duty determination of iron construction castings from India to Commerce.... In part, the Court held that Commerce's treatment of IPRS

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