National Steel Corporation v. US
| Decision Date | 13 December 1994 |
| Docket Number | No. 93-09-00616-AD. Slip Op. 94-194.,93-09-00616-AD. Slip Op. 94-194. |
| Citation | 18 CIT 1126,870 F. Supp. 1130 |
| Parties | NATIONAL STEEL CORPORATION, Armco Steel Company, L.P., Bethlehem Steel Corporation, Gulf States Steel, Inc. of Alabama, Inland Steel Industries, Inc., LTV Steel Company, Inc., Sharon Steel Corporation, U.S. Steel Group A Unit of USX Corporation, WCI Steel, Inc., Plaintiffs, v. UNITED STATES, Defendant, Hoogovens Groep B.V. and N.V.W. (U.S.A.), Inc., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Dewey Ballantine, Alan Wm. Wolff and Michael H. Stein, Washington, DC, for plaintiffs.
Skadden, Arps, Slate, Meagher & Flom, Robert E. Lighthizer and John J. Mangan, Washington, DC, for plaintiffs.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Velta A. Melnbrencis), Edward Reisman, Atty.-Advisor, Office of the Chief Counsel for Import Adm'n, U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.
Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Neil R. Ellis, and Niall P. Meagher, Washington, DC, for defendant-intervenors.
National Steel Corporation, Armco Steel Company, L.P., Bethlehem Steel Corporation, Gulf States Steel, Inc. of Alabama, Inland Steel Industries, Inc., LTV Steel Company, Inc., Sharon Steel Corporation, U.S. Steel Group A Unit of USX Corporation, and WCI Steel, Inc. (Domestic Producers) and Hoogovens Groep B.V. and N.V.W. (U.S.A.), Inc. (Hoogovens) challenge the final determination of the United States Department of Commerce concerning certain cold-rolled flat steel products from the Netherlands. Final Determinations of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products and Certain Cold-Rolled Carbon Steel Flat Products From the Netherlands, 58 Fed.Reg. 37,199 (Dep't Comm. 1993), amended by Antidumping Duty Order and Amendments to Final Determinations of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products and Certain Cold-Rolled Carbon Steel Flat Products From the Netherlands, 58 Fed.Reg. 44,172 (Dep't Comm.1993). Plaintiffs and defendant-intervenors cross-move for Judgment Upon an Agency Record pursuant to USCIT R. 56.2. The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).
Domestic Producers filed a petition requesting imposition of antidumping duties on carbon steel flat products from various countries. The investigated products included cold-rolled carbon steel flat products from the Netherlands, at issue in this case. Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Various Countries, 57 Fed.Reg. 33,488 (Dep't Comm. 1992).
On August 19, 1992, Commerce presented Hoogovens Groep B.V., the primary Dutch exporter of the subject merchandise, with its antidumping questionnaire. Hoogovens responded on September 10, 1992 and October 21, 1992. The responses of Hoogovens' affiliates, Rafferty-Brown Steel Co., Inc. of Connecticut (RBC) and Rafferty-Brown Steel Co., Inc. of North Carolina, were filed on November 4, 1992.
Commerce established December 21, 1992 as the deadline for remedying deficiencies in the questionnaire responses, in order "to allow case analysts and other interested parties ... time to review the submissions prior to verification." Final Determ., 58 Fed.Reg. at 37,202. On that date, at the invitation of the Department, Hoogovens submitted a computer tape and narrative explanation correcting certain errors in its previous submissions. The Department published its preliminary determination on February 4, 1993. Certain Hot-Rolled Carbon Steel Flat Products and Certain Cold-Rolled Carbon Steel Flat Products From the Netherlands, 58 Fed.Reg. 7113 (Dep't Comm.1993) (prelim. determ.).
On February 10, 1993, in a letter to Hoogovens, the Department offered the foreign producers "an opportunity to clarify" information that had previously been submitted. (Pub.Doc. 109, Letter from Dep't. of Commerce to Powell, Goldstein, of Feb. 10, 1993, at 1.) Commerce specifically instructed Hoogovens that it would not accept any new information after February 17, 1993.
On February 22, 1993, the first day of verification, Hoogovens notified Commerce that it had discovered a number of inaccuracies affecting a small number of the product characteristics submitted to Commerce for home market sales, regarding thickness groupings, product type, and tolerance. At verification, Hoogovens also disclosed its discovery of misreporting on a small number of U.S. sales with regard to the quality characteristic.
On April 28, 1993, Commerce asked Hoogovens to submit revised computerized sales listings with corrected product characteristic data. Hoogovens provided the data on May 10, 1993. Commerce then asked Hoogovens to resubmit the computerized data in slightly different formats, which it did on May 18, 1993. Due to time constraints on Commerce from various concurrent steel investigations, the Department decided not to accept the submitted corrections. Consequently, Commerce resorted to best information available (BIA) for the product characteristic data. In determining the appropriate BIA, Commerce concluded that the errors were limited in nature. Therefore, it used the weighted-average of the calculated positive dumping margins for each class of merchandise as BIA.
The Department also conducted verification of Hoogovens' exporter sales price (ESP) data at Hoogovens' affiliate, RBC, on April 7-8, 1993. During that verification, Hoogovens attempted to submit new factual information regarding omitted ESP transactions.
The number of omitted transactions was substantial. (Pub.Doc. 142, Conf.Doc. 52, RBC Verification Report of Apr. 27, 1993 at 2). Commerce had advised RBC that the new information could not be accepted because it was submitted after the deadline. RBC attempted to resubmit the same information on April 9, 1993. Commerce did not accept the submission, and applied the highest non-aberrant margin as BIA.
In its final determination, Commerce made an adjustment to the United States Price to account for the Dutch value-added tax and eliminate the false dumping margin created by the tax. Value-added taxes (VAT) are assessed only on sales within the Netherlands, but not on products exported to the United States.
In making the adjustment, the Department increased the United States Price by the absolute amount of tax actually incurred on sales of comparison Dutch merchandise. The Domestic Producers contest this as contrary to the methodology required by 19 U.S.C. § 1677a(d)(1)(C) (1988). Rather, the Domestic Producers allege that, under the statute, Commerce should have multiplied the price of the merchandise exported to the United States by the foreign market tax rate and added this amount to the United States Price.
Hoogovens now contests Commerce's (1) resort to BIA for the unreported ESP transactions; (2) selection of the highest non-aberrant margin as BIA; and (3) application of that margin. The Domestic Producers challenge Commerce's (1) characterization of Hoogovens' misreported home market sales data as limited in nature and resultant application of the weighted average of the positive calculated dumping margins as BIA; and (2) calculation of the adjustment to U.S. price for tax forgiven upon exportation of the steel products to the United States, and failure to measure the amount of the tax passed through to home market customers.1
This court shall uphold Commerce's final determination in an antidumping duty investigation unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).
Respondent Hoogovens contests Commerce's resort to BIA for the omitted data for RBC's ESP transactions. According to Hoogovens, the omissions can not be categorized as unreported transactions. Instead, due to inadvertent computer errors, multiple invoices for single coils of metal were treated as a single transaction. Therefore, Hoogovens argues, "the missing data did not relate to shipments pursuant to unreported sales orders or to previously-unreported customers or through previously-unreported sales channels." (Resp't Conf.Mem.Supp.J.Agcy.R. at 15.)
Hoogovens also contends that the omissions were limited in nature, noting that the RBC sales represented only percent of Hoogovens' total U.S. sales. (Resp't Conf. Mem.Supp.J.Agcy.R. at 14.) Therefore, Hoogovens argues, the additional administrative burden placed on Commerce or unfairness to petitioners in accepting and verifying the data would have been minimal.
Finally, Hoogovens alleges that Commerce invited Hoogovens to submit new information in its letter of February 12, 1993. According to Hoogovens, Commerce's request (authorizing Hoogovens to bring minor inadvertent errors to its attention at verification) "must be interpreted as indicating a willingness on the Department's part to accept minor changes ... and as extending the Department's regulations on the timeliness of questionnaire responses. ..." (Resp't Conf. Mem.Supp.J.Agcy.R. at 17.)
This court does not agree. Hoogovens failed to meet clear deadlines for submitting new information. Once such deadlines have passed, whether Commerce accepts the late submissions is within its discretion. See 19 C.F.R. § 353.31(b) (1994).
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