SIGMA, UV INTERN. v. US

Decision Date15 July 1996
Docket NumberSlip Op. 96-111. Court No. 91-02-00154,92-04-00283 and 92-06-00424.
PartiesSIGMA CORPORATION, U.V. International, Southern Star, Inc., City Pipe and Foundry, Inc. and Long Beach Iron Works; Overseas Trade Corporation; D & L Supply Co.; Deeter Foundry Inc., Alhambra Foundry, Inc., Allegheny Foundry, Co., Bingham & Taylor Division, Virginia Industries Inc., Campbell Foundry Co., Charlotte Pipe & Foundry Co., East Jordan Iron Works, Inc., LeBaron Foundry Inc., Municipal Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Pinkerton Foundry Inc., Tyler Pipe Industries Inc., U.S. Foundry & Manufacturing Co. and Vulcan Foundry, Inc., Plaintiffs, v. UNITED STATES, Defendant, D & L Supply Co.; Deeter Foundry, Inc., et al., Defendants-Intervenors. SIGMA CORPORATION, Southern Star, Inc., City Pipe and Foundry, Inc. and Long Beach Iron Works, Inc.; Overseas Trade Corporation; Guangdong Metals & Minerals Import & Export Corporation; U.S. Foundry & Manufacturing Co., Alhambra Foundry, Inc., Allegheny Foundry, Co., Bingham & Taylor Division, Virginia Industries Inc., Charlotte Pipe & Foundry Co., Deeter Foundry Inc., East Jordan Iron Works, Inc., LeBaron Foundry Inc., Municipal Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Tyler Pipe Industries, Inc. and Vulcan Foundry, Inc., Plaintiffs, U.V. International, Plaintiff-Intervenor, v. UNITED STATES, Defendant, Guangdong Metals & Minerals Import & Export Corporation; U.S. Foundry and Manufacturing Co., et al., Defendant-Intervenors. D & L Supply Co. and Guangdong Metals & Minerals Import & Export Corporation; U.V. International, Sigma Corporation, Southern Star, Inc., City Pipe and Foundry, Inc. and Long Beach Iron Works, Inc.; Overseas Trade Corporation, Plaintiffs, United States, Defendant, Alhambra Foundry, Co., Allegheny Foundry Co., Bingham & Taylor Division, Virginia Industries, Inc., Charlotte Pipe & Foundry Co., East Jordan Iron Works, Inc., LeBaron Foundry Inc., Municipal Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Tyler Pipe Industries, Inc., U.S. Foundry & Manufacturing Co. and Vulcan Foundry, Inc., Defendant-Intervenors.
CourtU.S. Court of International Trade

Ross & Hardies, Jeffrey S. Neeley, Washington, DC, for plaintiff Overseas Trade Corporation.

White & Case, Walter J. Spak and Vincent Bowen, Washington, DC, for plaintiffs Sigma Corporation, Southern Star, Inc., City Pipe and Foundry, Inc., Long Beach Iron Works and plaintiff/plaintiff-intervenor U.V. International.

Cameron & Hornbostel, Dennis James, Jr., Washington, DC, for plaintiff and defendant-intervenor D & L Supply Company, plaintiff/defendant-intervenor Guangdong Metals & Minerals Import & Export Corporation.

Collier, Shannon, Rill & Scott, Paul C. Rosenthal, Mary T. Staley and Robin H. Gilbert, Washington, DC, for plaintiffs/defendants-intervenors Deeter Foundry, Inc., Alhambra Foundry, Inc., Allegheny Foundry Co., Bingham & Taylor Division, Virginia Industries, Inc., Campbell Foundry Co., Charlotte Pipe & Foundry Co., East Jordan Iron Works, Inc., LeBaron Foundry Inc., Municipal Castings, Inc., Neenah Foundry Co., Opelika Foundry Co., Inc., Pinkerton Foundry Inc., Tyler Pipe Industries, Inc., U.S. Foundry & Manufacturing Co. and Vulcan Foundry, Inc.

Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Velta A. Melnbrencis, Paul M. Herrup and Cynthia B. Schultz (Jeffrey C. Lowe and Robert J. Heilferty, Attorney-Advisors, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel), Washington, DC, for defendant.

OPINION

TSOUCALAS, Judge:

Pursuant to Rule 681 of this Court, plaintiff, Overseas Trade Corporation ("Overseas"), has filed for an award for costs, attorneys' fees and expenses under the Equal Access to Justice Act (the "EAJA"), 28 U.S.C. § 2412 (1994), together with interest pursuant to 26 U.S.C. § 6621 (1994). For convenience, because similar issues of law and fact are involved, plaintiff's application includes the combined costs and expenses incurred in Consolidated Court Nos. 91-02-00154, 92-0400283 and 92-06-00424.

Background

On May 13, 1985, the United States Department of Commerce, International Trade Administration ("Commerce") was petitioned by the Municipal Castings Fair Trade Council ("MCFTC"), a trade association representing domestic producers of iron construction castings ("castings"), and fifteen individually-named members of the association to investigate imports of certain iron construction castings from the People's Republic of China ("PRC"). Petitioners believed that imports of castings from the PRC are being, or are likely to be, sold in the United States at less than fair value ("LTFV") and are materially injuring the United States castings industry or threatening it with material injury. Finding the petition sufficient, Commerce conducted an antidumping investigation of exports of PRC castings during the period December 1, 1984 through May 31, 1985. The final determination reached in the LTFV investigation was published in Certain Iron Construction Castings From the People's Republic of China; Final Determination of Sales at Less Than Fair Value ("LTFV Investigation Results"), 51 Fed.Reg. 9,483 (March 19, 1986). The LTFV Investigation Results established a dumping margin of 11.66% ad valorem for all PRC producers, manufacturers and exporters. Id. at 9,485. After Commerce made its dumping finding and the International Trade Commission issued a final affirmative determination of threat of material injury, Commerce issued an antidumping duty order on iron construction castings from the PRC. Antidumping Duty Order, Iron Construction Castings From the People's Republic of China (the PRC), 51 Fed.Reg. 17,222 (May 9, 1986).

No administrative review of the imported PRC castings was requested for the first review period — October 28, 1985 through April 30, 1987. However, reviews were sought and conducted for the second and third periods of review — May 1, 1987 through April 30, 1988 and May 1, 1988 through April 30, 1989. In a consolidated determination, Commerce preliminarily established dumping margins for all unnamed branches of the PRC corporations reviewed of 47.54% for the 1987-88 review period and 97.57% for the 1988-89 period. These margins were calculated utilizing best information available ("BIA"). Iron Construction Castings From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Review ("Preliminary Results"), 55 Fed.Reg. 22,939 (June 5, 1990). Subsequently, a final determination was published in Iron Construction Castings From the People's Republic of China; Final Results of Antidumping Duty Administrative Review ("Final Results"), 56 Fed.Reg. 2,742 (Jan. 24, 1991). The Final Results "calculated a weighted-average margin for all imports of the subject merchandise by applying the highest margin calculated for any responding branch of the China National Metals and Minerals Import and Export Corporation to the imports of the non-responsive firms." Final Results, 56 Fed.Reg. at 2,749. The resulting margins were 24.21% for 1987-1988 and 45.92% for 1988-1989, applicable to all exports of iron construction castings from the People's Republic of China. Id.

Overseas challenged the Final Results, 56 Fed.Reg. at 2,749, in Consolidated Court No. 91-02-00154. The Court reviewed Overseas' claims in this case in Sigma Corp. v. United States, 17 CIT 1288, 841 F.Supp. 1255 (1993), and remanded the case to Commerce. Commerce's redetermination pursuant to Court remand was reviewed in Sigma Corp. v. United States, 19 CIT ___, 890 F.Supp. 1077 (1995).

In Consolidated Court No. 92-04-00283, Overseas challenged Commerce's final determination entitled Final Results of Antidumping Duty Administrative Review: Certain Iron Construction Castings From the People's Republic of China ("Final Results"), 57 Fed.Reg. 10,644 (Mar. 27, 1992). These Final Results covered the fourth period of review ("POR") May 1, 1989 through April 30, 1990 and examined one exporter, the Guangdong Branch of China National Metals and Minerals Import and Export Corporation ("Minmetals Guangdong"). No other named exporters responded to Commerce's questionnaire. For exporters not responding to the questionnaire, Commerce applied BIA utilizing the highest margin calculated in the review, i.e., the margin calculated for Minmetals Guangdong. Id. The Court reviewed Overseas' claims concerning these Final Results in Sigma Corp. v. United States, 17 CIT 1358, 841 F.Supp. 1275 (1993); see also Sigma Corp. v. United States, 19 CIT ___, 888 F.Supp. 159 (1995).

In Consolidated Court No. 92-06-00424, Overseas contested Certain Iron Construction Castings From the People's Republic of China; Final Results of Antidumping Duty Administrative Review ("Final Results"), 57 Fed.Reg. 24,245 (June 8, 1992). These Final Results covered the fifth POR May 1, 1990 through April 30, 1991. Questionnaires were forwarded to nine PRC manufacturers/exporters of the subject merchandise for this period. Two companies reported no shipments during the POR and the other seven, including Minmetals Guangdong, failed to respond. Therefore, Commerce utilized BIA for all companies. Id. The Court reviewed Overseas' challenge to these Final Results in D & L Supply Co. v. United States, 17 CIT 1419, 841 F.Supp. 1312 (1993); see also D & L Supply Co. v. United States, 19 CIT ___, 888 F.Supp. 1191 (1995).

The facts in Consolidated Court Nos. 91-02-00154, 92-04-00283 and 92-06-00424 are virtually identical. In all three cases, the Court found that one respondent, China National Machinery Import and Export Corporation, Liaoning ("MACHIMPEX Liaoning" or "Liaoning"), a PRC producer from which Overseas purchased iron construction castings during the PORs in question, is not within the scope of the...

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