Hussey Copper, Ltd. v. U.S.
| Decision Date | 13 February 1997 |
| Docket Number | Court No. 91-12-00919.,Slip Op. 97-25. |
| Citation | 960 F.Supp. 315 |
| Parties | HUSSEY COPPER, LTD., The Miller Company, Outokumpu American Brass, Revere Copper Products, Inc., International Association of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFL-CIO), Mechanics Educational Society of America (Local 56), and United Steelworkers of America (AFL-CIO/CLC), Plaintiffs, v. UNITED STATES, Defendant, Wieland-Werke Ag, Langenberg Kupfer Und Messingwerke GMBH Kg, Mettallwerke Schwarzwald GMBH, and Wieland Metals, Defendants-Intervenors. |
| Court | U.S. Court of International Trade |
Collier, Shannon, Rill & Scott (David A. Hartquist, Jeffrey S. Beckington and David C. Smith, Jr., Washington, DC), for plaintiffs.
Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (A. David Lafer, on the brief) and David W. Richardson, General Attorney, International Office of Chief Counsel for Import Administration, of counsel, Washington, DC, for defendant.
Arnold & Porter (Richard A. Johnson and Susan G. Lee, Washington, DC), for defendants-intervenors.
This action arises from the administrative review of an antidumping duty order concerning brass sheet and strip from Germany. Commerce reviewed the activities of five companies between August 22, 1986 and February 29, 1988. Brass Sheet and Strip from the Federal Republic of Germany, 56 Fed. Reg. 60,087 (Dep't Comm.1991) (final admin. review), as amended, 57 Fed.Reg. 276 (Dep't Comm.1992) [hereinafter Final Determination]. This is the fourth time that the action has appeared before this court. Hussey Copper v. United States, 17 CIT 993, 834 F.Supp. 413 (1993) [hereinafter Hussey I], appealed after remand, 18 CIT 454, 852 F.Supp. 1116 (1994) [hereinafter Hussey II], appealed after remand, 19 CIT ____, 895 F.Supp. 311 (1995) [hereinafter Hussey III]. As the arguments raised in the current appeal are untimely, plaintiffs' request for yet another remand is denied, and Commerce's latest redetermination is affirmed.
Commerce determines the margin of dumping in an antidumping investigation by comparing prices of United States and home market sales, adjusting for differences whenever the products compared are not identical. 19 U.S.C. §§ 1673, 1677(16), 1677b(a)(1) (1988); 19 C.F.R. §§ 353.2(f), 353.57 (1993). In its third and most recent remand, the court ordered Commerce to revise this comparison by (1) selecting the most similar home market merchandise on the basis of physical characteristics rather than production costs; (2) matching United States sales of specific alloy products with home market sales of specific alloy products; and (3) matching United States sales with contemporaneous home market sales. Hussey III, 19 CIT at ___ _ ____, 895 F.Supp. at 314-15.
As in its original Final Determination, in each remand Commerce found that some United States sales did not have exact home market matches. The third remand significantly altered this list of unmatched sales. See Hussey III, 19 CIT at ____, 895 F.Supp. at 314; .) In such situations, Commerce ordinarily compares similar products, then adjusts for differences in the compared merchandise (difmer adjustments). Final Determination at 60,089. However, because members of the Wieland Group did not report difmer information needed to make those comparisons, Commerce instead used a best information available (BIA) rate, defined as "the highest weighted-average margin for any member of the Wieland Group[,]" for unmatched sales. Id.
Commerce issued a preliminary draft of its latest remand results on October 31, 1995. Final Results of Redetermination Pursuant to Court Remand: Hussey Copper, Ltd. et al. v. United States, Slip Op. 95-145 (Aug. 11, 1995) [hereinafter Results of Redetermination III]. In its response, Wieland urged Commerce to recalculate the 27.48% BIA rate. (Letter from Arnold & Porter to Comm. Dep't of 11/13/95, at 6; Response of Def.-Intervenors to Comments of Pls. Contesting Comm. Dep't Redetermination on Remand, at 3-4 [hereinafter Def.-Intervenors' Response].) Wieland argued that the BIA rate should equal the highest margin resulting from the latest remand, not the highest margin existing in the initial final results. Results of Redetermination III at 6 (Comment 9). Commerce agreed and substantially reduced the BIA rate, explaining that "[c]onsistent with the BIA methodology which governed the original administrative review of this order, we have used the highest weighted-average margin for a Wieland company resulting from this remand as the applicable BIA[.]" Id. While the BIA rate for unmatched sales changed as a result of the remand, the methodology used remained the same.
Plaintiffs have appealed Commerce's decision to change the BIA rate applied to unmatched sales. They argue that Commerce was not authorized to do so because the BIA issue was not one of the subjects of this court's third remand order. See Hussey III, 19 CIT at ___ _ ____, 895 F.Supp. at 314-15 (describing remand order). In the alternative, they argue that if Commerce is permitted to update the BIA rate based on revisions to Wieland's margins on remand, Commerce must also update its BIA methodology. (Response by Pls. to Ct.'s Aug. 21, 1996 Supplemental Questions at 1-2.) They urge the court to require Commerce to follow its "current practice," a two-tier methodology approved by the Court of Appeals for the Federal Circuit. (Pls.' Br. at 6-9;) see Allied-Signal Aerospace Co. v. United States, 28 F.3d 1188, 1190-91 (Fed.Cir.1994), cert. denied, 513 U.S. 1077, 115 S.Ct. 722, 130 L.Ed.2d 628 (1995); see also, e.g., NSK Ltd. v. United States, 20 CIT ___, ___ _ ____, 939 F.Supp. 901, 904-05 (1996). For the reasons indicated below, plaintiffs' appeal is denied.
Plaintiffs argue that Commerce should preserve the 27.48% BIA rate for unmatched sales calculated in the original Final Determination. Commerce did not calculate new margins in the first remand results because it had decided to request that the court reopen the record for further investigation. Final Results of Redetermination Pursuant to Court Remand: Hussey Copper, Ltd. et al. v. United States, Slip Op. 93-179, at 3 (Jan. 10, 1994). Commerce did calculate new margins in the second remand. At that time, Wieland commented that the BIA rate for unmatched sales should equal the highest margin resulting from the remand, apparently out of concern that Commerce would adopt a higher margin taken from a subsequent administrative review. Final Results of Redetermination Pursuant to Court Remand: Hussey Copper, Ltd. et al. v. United States, Slip Op. 94-81, at 7 (Sept. 13, 1994) (Comment 5). Commerce agreed with Wieland, and stated that it would use as BIA "the highest adjusted margin resulting from this remand of the first administrative review[.]" Id. The parties disagree as to whether Commerce actually adjusted the BIA rate in the second remand or inadvertently neglected to do so. (Cf. Def. Br. at 4 and Def.-Intervenors Br. at 4-5.) In the draft version of its third remand results, Commerce used the original 27.48% BIA rate instead of an updated version. (Pls.' Br. at 4 ().) When Wieland brought this to Commerce's attention, Commerce reduced the rate to reflect the highest weighted-average margin resulting from the third and most recent remand. (Results of Redetermination III at 6-7.) It is that reduced rate that plaintiffs contest.
Plaintiffs' objections come too late. Plaintiffs had thirty days from the filing of the second remand results to file comments with the court in response. Hussey II, 18 CIT at 460-61, 852 F.Supp. at 1122. The comments filed with Commerce and with the court did not challenge Commerce's statement that it would use as BIA the highest adjusted margin found in the remand results. See Letter from Law Firm of Collier Shannon to Sec. of Commerce of 8/31/94 (comments on Draft Remand Results); Letter from Law Firm of Collier Shannon to Sec. of Commerce of 7/18/94 (comments on Wieland's response to Commerce's July 5, 1994 remand questionnaire) (containing no objection to updating BIA rate); see also Pls.' Mot. Further Remand (Nov. 3, 1994); Pls.' Reply to Resp. by U.S. in Partial Opp'n Pls.' Mot. Further Remand (Dec. 19, 1994) (both filed in conjunction with Hussey III) (also containing no objection to updating BIA rate). Since plaintiffs did not raise the issue during the second remand, their contention that Commerce should preserve the BIA rate calculated in the Final Determination is untimely and therefore moot.
Had the claim been timely, it would not have prevailed, as Commerce correctly revised the BIA rate to reflect the changes ordered by the court. Plaintiffs' assertion that on remand Commerce may only address issues specified in the remand order is accurate. (Pls.' Br. at 5.) Nonetheless, a remand order would be meaningless if Commerce were not permitted to recalculate its final results after changing the underlying formulas. In its original Final Determination, Commerce selected as BIA "the highest weighted-average margin for any member of the Wieland Group." Final Determination at 60,089. In its third remand, the court ordered Commerce to recalculate those dumping margins, eliminating three methodological errors. Hussey III, 19 CIT at ____, 895 F.Supp. at 314-15. As a result, the highest weighted-average margin found no longer equaled 27.48%. (Def.-Intervenors' Response at 6.) It was within the scope of the remand order for Commerce to recalculate any figure based on margins that the remand order had held were not in accordance with law. Commerce therefore acted within its discretion when it...
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