Shakeproof Assembly Com. Div. Of Ill. Tool v. U.S.

• Decision Date: 22 December 2005
• Docket Number: Slip Op. 05-163. Court No. 05-0404.
• Citation: 412 F.Supp.2d 1330
• Parties: SHAKEPROOF ASSEMBLY COMPONENTS DIVISION OF ILLINOIS TOOL WORKS, INC., Plaintiff, v. UNITED STATES, Defendant, and Hang Zhou Spring Washer Co., Ltd., Defendant-Intervenor.
• Court: U.S. Court of International Trade

412 F.Supp.2d 1330

SHAKEPROOF ASSEMBLY COMPONENTS DIVISION OF ILLINOIS TOOL WORKS, INC., Plaintiff, v. UNITED STATES, Defendant, and Hang Zhou Spring Washer Co., Ltd., Defendant-Intervenor.

Slip Op. 05-163. Court No. 05-0404.

United States Court of International Trade.

December 22, 2005.

McDermott, Will & Emery, LLP (David John Levine), Washington, DC, for Plaintiff Shakeproof Assembly Components Division of Illinois Tool Works, Inc.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Patricia M. McCarthy, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David Samuel Silverbrand); Ada Bosque, Office of the Chief Counsel, U.S. Department of Commerce, for Defendant United States.

White & Case, LLP (Adams Chi-Peng Lee and Emily Lawson), Washington, DC, for Defendant-Intervenor Hang Zhou Spring Washer Co., Ltd.

OPINION

GOLDBERG, Senior Judge.

This case is before the Court on a partial consent motion for voluntary remand of the final results of an administrative review of an antidumping duty order by the U.S. Department of Commerce ("Commerce").

I. BACKGROUND

In Certain Helical Spring Lock Washers from the People's Republic of China, 70 Fed.Reg. 28274 (Dep't Commerce May 17, 2005) (final determination) (the "Final Results"), Commerce determined that the weighted average dumping margin on sales of helical spring lock washers (the "subject imports") to the United States by the Chinese respondent, Hang Zhou Spring Washer Co., Ltd. ("Defendant-Intervenor"), was 0.00 percent of the adjusted U.S. price for the subject imports as determined by Commerce. Final Results at 28274. This resulted in calculation of an antidumping duty rate of the same percentage. Id.

To reach this conclusion, it was necessary for Commerce to value the factors of production associated with the subject imports in order to calculate their normal value.¹ Id. at 28275; see also Defendant's Partial Consent Motion for a Voluntary Remand ("Commerce's Mot.") at 1. One such factor of production under consideration by Commerce was the value of socalled "plating services." Id. Commerce performed the same plating services valuation in both the preliminary results and the Final Results. Id.; see also Certain Helical Spring Lock Washers from the People's Republic of China, 69 Fed.Reg. 64903, 64905 (Dep't Commerce Nov. 9, 2004) (preliminary determination); Defendant-Intervenor's Opposition to Defendant's Motion for Voluntary Remand ("Def.-Int.'s Opp.") at 2. Although provided the opportunity to do so, the domestic petitioner, Shakeproof Assembly Components Division of Illinois Tool Works, Inc. ("Plaintiff"), did not object to Commerce's plating services valuation in its comments on the preliminary results or case brief to the agency. Final Results at 28275.²

Following publication of the Final Results, Plaintiff commenced this action by filing a summons with the Court on June 16, 2005. The next day, Plaintiff also timely filed with Commerce a request to correct certain "ministerial errors" purportedly made in the calculation of the dumping margin for Defendant-Intervenor. See Complaint dated July 15, 2005 ("Compl.") ¶ 6. Specifically, Plaintiff alleged that Commerce had valued the plating services factor of production erroneously, leading to a flawed normal value calculation and thus an incorrect dumping margin. Id. Plaintiff argued that, while Commerce had applied the correct plating price, it did so to the wrong weight value (i.e., Commerce applied the price to each kilogram of raw plating materials instead of each kilogram of lock washers). Id. ¶ 7. As proof of the mistake, Plaintiff noted that Commerce had "correctly applied" the plating price derived from the same source document in the previous administrative review of the same antidumping duty order. Id.

Commerce denied Plaintiff's request to correct the Final Results on July 8, 2005 concluding that Plaintiff's allegations "pertain[ed] to a methodological rather than ministerial issue" and were therefore not subject to correction using the ministerial error procedure.³ Id. ¶ 10 (quoting Mem. to Edward C. Yang from Wendy J. Frankel, Re: Antidumping Duty Review of Certain Helical Spring Lock Washers from the People's Republic of China—Ministerial Error Allegations in Final Results, dated July 8, 2005). Three days later, on July 11, 2005, "senior Commerce officials discussed with counsel for [Plaintiff] ... a course of action whereby, following the filing of a complaint, Commerce would move this Court for a `voluntary remand' in order for Commerce to reconsider its decision." Compl. ¶ 11. Although described in Plaintiff's complaint, this ex parte communication was not documented on the administrative record. However, two other conversations which took place on that same day were made part of the record: a senior Commerce official was contacted separately by staff members from the offices of Senator Herb Kohl and Congresswoman Gwen Moore regarding Commerce's ministerial error determination. See Mem. to File from Susan Kuhbach, Acting Assistant Secretary, Import Administration, Re: Phone Conversation Regarding Ministerial Errors Memorandum, dated July 11, 2005. Specifically, the Congressional staffers sought a delay in Commerce's ministerial error determination to permit Plaintiff additional time to meet with the agency. Id. The Commerce official advised the Congressional staffers that this determination had in fact already been issued, and that the agency "did not view the issue as a ministerial error; and that if there was a possible methodological error, the only way for [Commerce] to consider it at this point would be if [Commerce] were sued." Id.

Plaintiff filed its complaint four days later, on July 15, 2005. The sole issue raised in the complaint concerned the allegedly erroneous valuation of the plating services factor of production and Commerce's failure to correct it through the ministerial error procedure. Compl. ¶ 12. On October 13, 2005, Commerce filed a motion requesting voluntary remand of the Final Results. Commerce's Mot. at 1. In its motion, Commerce did not admit error in the Final Results; rather, Commerce requested remand to enable the agency to "examine the methodologies available to value plating to discern which methodology leads to the most accurate results and explain its choice of methodology employed." Id. at 2. In its motion, Commerce also indicated that it would possibly seek additional information to augment its inquiry on this issue. Id. Plaintiff filed a brief supporting Commerce's request for voluntary remand on November 8, 2005. See Plaintiff's Response in Support of Defendant's Partial Consent Motion for Voluntary Remand ("Pl.'s Resp.") at 1. Defendant-Intervenor filed its brief in opposition on the same day. Def.-Int.'s Opp. at 1.

II. JURISDICTION AND JUSTICIABILITY

Pursuant to 28 U.S.C. § 1581(c), the Court has jurisdiction over cases involving appeals of the final results of administrative reviews performed by Commerce in the context of antidumping proceedings. Before exercising this jurisdiction in a given case, however, the Court is directed by statute to require the exhaustion of administrative remedies "where appropriate[.]" 28 U.S.C. § 2637(d) (1999). Mindful of this prudential consideration, the Court believes that there is a question as to whether Plaintiff's failure to contest the valuation of plating services in response to Commerce's preliminary results should give rise to partial dismissal of this action for failure to exhaust. Nonetheless, after careful consideration, the Court concludes that dismissal is not warranted as to Plaintiff's claim of error in the Final Results.

Exhaustion is required principally because "[a] reviewing court usurps the agency's function when it sets aside a determination upon a ground not previously presented and deprives the agency of an opportunity to consider the matter, make its ruling, and state the reasons for its action." Wieland Werke, AG v. United States, 13 CIT 561, 567, 718 F.Supp. 50, 55 (1989). As a result of these concerns, the Court has generally declined to exercise jurisdiction over a claim involving methodological objections raised to Commerce only during the ministerial error procedure following a final determination. See, e.g., Tianjin Mach. Imp. & Exp. Corp. v. United States, 28 CIT ____, ____, 353 F.Supp.2d 1294, 1306-07 (2004), aff'd, 146 Fed.Appx. 493 (Fed.Cir.2005); Peer Bearing Co. v. United States, 23 CIT 454, 457-60, 57 F.Supp.2d 1200, 1204-06 (1999); Aramide Maatschappij V.o.F. v. United States, 19 CIT 1094, 1097-98, 901 F.Supp. 353, 357-58 (1995). Nevertheless, the Court has found it appropriate to exercise jurisdiction under such facts where Commerce itself has voiced support for the belated claim by requesting voluntary remand. See, e.g., Magnesium Corp. of Am. v. United States, 20 CIT 1092, 1104-05, 938 F.Supp. 885, 898 (1996), aff'd, 166 F.3d 1364 (Fed.Cir.1999); Ad Hoc Comm. of S. Cal. Producers of Gray Portland Cement v. United States, 19 CIT 1398, 1403-04, 914 F.Supp. 535, 541-42 (1995); Sugiyama Chain Co. v. United States, 16 CIT 526, 533-35, 797 F.Supp. 989, 996-97 (1992).

Although the Court's rationale for this past exercise of jurisdiction has not been fully articulated, the Court has noted in other contexts that it "may exercise its discretion to prevent knowingly affirming a determination with errors." Torrington Co. v. United States, 21 CIT 1079, 1082 (1997). Likewise, where Commerce raises serious concerns about the accuracy of a determination through a request for voluntary remand, the Court may exercise its discretion with regard to the exhaustion of administrative remedies in order to subject to review a potentially erroneous administrative determination. Cf. Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 321, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961) (in weighing reconsideration request,...