SGL Carbon LLC v. United States

• Decision Date: 22 February 2012
• Docket Number: Slip Op. 12–23.Court No. 11–00389.
• Parties: SGL CARBON LLC and Superior Graphite Co., Plaintiffs, v. UNITED STATES, Defendant,andFushun Jinly Petrochemical Carbon Co., Ltd., et al., Defendant–Intervenors.Fushun Jinly Petrochemical Carbon Co., Ltd., et al., Plaintiffs, v. United States, Defendant,andSGL Carbon LLC and Superior Graphite Co., Defendant–Intervenors.
• Court: U.S. Court of International Trade

34 ITRD 1225

819 F.Supp.2d 1352

SGL CARBON LLC and Superior Graphite Co., Plaintiffs,

v.UNITED STATES, Defendant,andFushun Jinly Petrochemical Carbon Co., Ltd., et al., Defendant–Intervenors.Fushun Jinly Petrochemical Carbon Co., Ltd., et al., Plaintiffs,

v.United States, Defendant,andSGL Carbon LLC and Superior Graphite Co., Defendant–Intervenors.

Slip Op. 12–23.Court No. 11–00389.

United States Court of International Trade.

Feb. 22, 2012.

David A. Hartquist, R. Alan Luberda, and Mary T. Staley, Kelley Drye & Warren LLP, of Washington, D.C., for Plaintiffs SGL Carbon LLC and Superior Graphite Co.

Melissa M. Devine, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant. With her on the brief were Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director, Commercial Litigation Branch. Of counsel on the brief was Daniel J. Calhoun, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce.

Lizbeth R. Levinson and Ronald M. Wisla, Kutak Rock LLP, of Washington, D.C., for Defendant–Intervenors Fushun Jinly Petrochemical Carbon Co., Ltd., Beijing Fangda Carbon Tech Co., Ltd., Fushun Carbon Co., Ltd., Fangda Carbon New Material Co., Ltd., Chengdu Rongguang Carbon Co., Ltd., and Hefei Carbon Co., Ltd.

OPINION

RIDGWAY, Judge:

In this consolidated action, the U.S. Department of Commerce's Final Results in the first administrative review of the antidumping duty order on small diameter graphite electrodes from the People's Republic of China are under assault from both directions. See generally Small Diameter Graphite Electrodes from the People's Republic of China: Final Results of the First Administrative Review of the Antidumping Duty Order and Final Rescission of the Administrative Review, in Part, 76 Fed.Reg. 56,397 (Sept. 13, 2011) (“Final Results”).¹

Two domestic producers of electrodes—SGL Carbon LLC and Superior Graphite Co. (“Domestic Producers”)—commenced Court No. 11–00389, asserting that the Final Results understate the extent of the dumping by Fushun Jinly Petrochemical Carbon Co., Ltd. (“Fushun Jinly”) and the “Fangda Group” companies (including Beijing Fangda Carbon Tech Co., Ltd., Fushun Carbon Co., Ltd., Fangda Carbon New Material Co., Ltd., Chengdu Rongguang Carbon Co., Ltd., and Hefei Carbon Co., Ltd.), among others. On the other side, Fushun Jinly and the Fangda Group brought Court No. 11–00407, challenging the dumping margins reflected in the Final Results as overstated.

Pending before Commerce at the time the Domestic Producers commenced their action were comments from Fushun Jinly, the Fangda Group, and Xinghe County Muzi Carbon Co., Ltd. (“Muzi”) ² requesting that the agency correct certain alleged “ministerial errors” in the Final Results. The Government sought leave of the Court to permit Commerce to correct some of those alleged ministerial errors—a motion that was opposed by the Domestic Producers, and denied in a brief order stating no reasons for the decision. See Order (Oct. 26, 2011). Thereafter, Fushun Jinly and the Fangda Group intervened in the Domestic Producers' action, and the case was assigned to these chambers. In addition, as noted above, Fushun Jinly and the Fangda Group initiated their own action (Court No. 11–00407), which was then consolidated with the Domestic Producers' action.

Now before the Court is a Motion for Reconsideration filed by Fushun Jinly and the Fangda Group, neither of which were parties to the Domestic Producers' action at the time the Government's original motion for leave to correct ministerial errors was denied. See Defendant Intervenors' Motion for Reconsideration of the Court's Order Dated October 26, 2011 Denying Defendant's Motion for Leave to Publish Amended Final Results Correcting Ministerial Errors (“Def.-Ints.' Motion for Reconsideration”).

The Government supports the Motion for Reconsideration, and, indeed, renews its own motion seeking leave to publish amended final results correcting the specified alleged ministerial errors. See Defendant's Response to Defendant–Intervenors' Motion for Reconsideration at 12 (“Def.'s Renewed Motion for Correction of Ministerial Errors”). In contrast, the Domestic Producers oppose the Motion for Reconsideration, asserting that Commerce should not now be permitted to make the corrections. See Plaintiffs' Opposition to Defendant–Intervenors' Motion for Reconsideration of the Court's Order Denying Defendant Leave to Publish Amended Final Results Correcting a Ministerial Error (“Pls.' Opposition to Motion for Reconsideration”).

For the reasons outlined below, the Motion for Reconsideration must be granted, and Commerce permitted to publish amended final results correcting the specified ministerial errors.

I. Background

Commerce's correction of ministerial errors in agency determinations is expressly authorized both by statute and by regulation. See generally 19 U.S.C. § 1675(h) (2006); 19 C.F.R. § 351.224 (2008).³ The legislative history underscores the raison d'etre for the ministerial errors statute and regulation, emphasizing Congress' desire to have Commerce correct such errors in order to preempt needless litigation and thereby promote judicial economy:

It has come to the Committee's attention that certain final determinations contain clerical and other errors which are not corrected, under current procedures, unless the parties to the proceedings resort to judicial review of the final determination. The result is expensive litigation that unnecessarily burdens the court system, in order to correct essentially unintended errors. Therefore, the Committee has adopted this provision to allow for the correction of ministerial errors in final determinations within a limited time period after their issuance.H.R.Rep. No. 100–40, Pt. 1, at 144 (1987) (emphasis added); see generally NTN Bearing Corp. v. United States, 74 F.3d 1204, 1207 (Fed.Cir.1995) (discussing legislative history of statutory provision concerning correction of ministerial errors).

To that end, Congress directed Commerce to establish procedures for the agency's correction of “ministerial errors” in final determinations “within a reasonable time after the determinations are issued.” See 19 U.S.C. § 1675(h). As defined by statute, “ministerial errors” include “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which [Commerce] considers ministerial.” See id.; see also 19 C.F.R. § 351.224(f) (defining “ministerial error” in language virtually identical to that of the statute).

The statute requires that Commerce “ensure opportunity for interested parties to present their views regarding any such [ministerial] errors.” See 19 U.S.C. § 1675(h). Commerce's regulation thus provides, in sum and substance, that, in cases such as this, any allegations of ministerial errors in a final determination are to be filed with Commerce within five days after the agency discloses the calculations underpinning the agency's determination, and that “[r]eplies to comments ... must be filed within five days after the date on which the comments were filed.” See 19 C.F.R. §§ 351.224(b), 351.224(c)(1)–(3). The regulation further provides that Commerce “will analyze any comments received and, if appropriate, ... correct any ministerial error by amending ... the final results of review.” See 19 C.F.R. § 351.224(e).

The Final Results at issue here were published in the Federal Register on September 13, 2011. See Small Diameter Graphite Electrodes from the People's Republic of China: Final Results of the First Administrative Review of the Antidumping Duty Order and Final Rescission of the Administrative Review, in Part, 76 Fed.Reg. 56,397 (Sept. 13, 2011) (“Final Results”). Thereafter, Fushun Jinly, the Fangda Group, and Muzi each submitted timely comments to Commerce alleging various ministerial errors in the Final Results. See Letter from Fushun Jinly to Commerce (Sept. 19, 2011); Letter from Fangda Group to Commerce (Sept. 19, 2011); Letter from Muzi to Commerce (Sept. 19, 2011). Four days later, the Domestic Producers submitted comments to Commerce objecting to correction of some of the alleged errors. See Letter from Domestic Producers to Commerce (Sept. 23, 2011).

Before Commerce could publish amended Final Results addressing the alleged ministerial errors, the Domestic Producers filed their summons and complaint challenging the Final Results. See Domestic Producers' Summons (Sept. 28, 2011); Domestic Producers' Complaint (Sept. 28, 2011).⁴ The commencement of the Domestic Producers' action vested the court with jurisdiction over the administrative proceeding in this case, precluding Commerce from correcting any ministerial errors absent leave of court. See Zenith Elecs. Corp. v. United States, 884 F.2d 556, 560–62 (Fed.Cir.1989) (explaining that “once [the Court of International Trade's] exclusive jurisdiction has been invoked, Commerce may correct clerical errors [in an agency determination] only with the court's prior authorization”).

Accordingly, on October 6, 2011, the Government filed a Motion for Correction of Ministerial Errors. See Defendant's Motion for Leave to Publish Amended Final Results Correcting A Ministerial Error (“Def.'s Motion for Correction of Ministerial Errors”). In its motion, the Government stated that Commerce had reviewed the allegations of ministerial error, as well as the Domestic Producers' comments thereon, and that the agency had determined that the Final Results should be amended to correct certain of the alleged errors in accordance with the “ministerial errors” statute and regulation. See id. at 2.

Specifically, the Government's Motion for Correction of Ministerial Errors explained that Commerce intended to correct two of the three errors alleged by Fushun Jinly—(1)...