Alloy Piping Products, Inc. v. United States

Slip-Op. 02-27

UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: HONORABLE GREGORY W. CARMAN, CHIEF JUDGE

__________________________________________
:
ALLOY PIPING PRODUCTS, INC., :
FLOWLINE DIVISION., MARKOVITZ :
ENTERPRISES, INC., GERLIN, INC., :
and TAYLOR GORGE STAINLESS, INC. :
:
Plaintiffs, :
:
v. : Consol. Court No. 01-00099
:
UNITED STATES OF AMERICA, :
:
Defendant, :
:
and :
:
KANZEN TETSU SDN. BHD., :
SCHULZ (MFG) SDN. BHD., and :
SCHULZ U.S.A., INC., :
:
Defendant-Intervenors. :
:
__________________________________________:

[Defendant-Intervenors’ renewed motion to supplement the administrative record is
denied. Plaintiffs’ and Defendant-Intervenors’ respective motions for judgment upon the agency
record are denied. The Department of Commerce’s Final Determination is sustained.
Defendant-Intervenors’ application for oral argument is denied.]

Date: March 11, 2002

Collier Shannon Scott, PLLC (Jeffrey S. Beckington and Mary T. Staley), Washington,
D.C., for Plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General of the United States; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice; Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice; Richard P. Schroeder, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of Justice; Robert E. Nielsen, Office
of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for
Defendant.

White & Case, LLP (Walter J. Spak, Robert G. Gosselink, and Frank H. Morgan),
Washington, D.C., for Defendant-Intervenors.

OPINION

CARMAN, CHIEF JUDGE: This consolidated action comes before the Court on Plaintiffs’

and Defendant-Intervenors’ respective motions for judgment upon the agency record pursuant to

USCIT R. 56.2. At issue are several elements of the Department of Commerce’s (“Commerce”)

final affirmative antidumping duty (“AD”) determination in Notice of Final Determination of

Sales at Less Than Fair Value: Stainless Steel Butt-Weld Pipe Fittings From Malaysia, 65 Fed.

Reg. 81,825 (Dec. 27, 2000) (“Final Determination”).

Plaintiffs Alloy Piping Products, Inc., Flowline Division., Markovitz Enterprises, Inc.,

Gerlin, Inc., and Taylor Gorge Stainless, Inc. (“Alloy” or “Domestic Industry”) contest

Commerce’s use of third country sales as the basis for normal value (“NV”). Defendant-

Intervenors Kanzen Tetsu Sdn. Bhd., Schulz (Mfg) Sdn. Bhd., and Schulz U.S.A., Inc.

(“Kanzen”) claim the Final Determination is subject to a ministerial error that Commerce has

failed to correct. Kanzen also renews its motion, pursuant to USCIT Rules 7(f) and 71(a), for an

order requiring Commerce to supplement the administrative record. Defendant, United States,

opposes all three motions. On the basis of the papers submitted, the relevant statutes and

regulations, and for the reasons set forth herein, the Court denies Alloy’s motion for judgment

upon the agency record. The Court also denies Kanzen’s motion to supplement the

administrative record and its motion for judgment upon the agency record. Commerce’s Final
Consol. Court No. 01-00099 Page 3

Determination is sustained. Kanzen’s application for oral argument is denied. The Court has

jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (1994).

BACKGROUND

On January 18, 2000, Commerce initiated an AD investigation into whether stainless

steel butt-weld pipe fittings from Malaysia were being sold, or were likely to be sold in the

United States at less than fair value.1 See Initiation of Antidumping Duty Investigation: Stainless

Steel Butt-Weld Pipe Fittings from Germany, Italy, Malaysia and the Philippines, 65 Fed. Reg.

4,595 (Jan. 31, 2000). On February 10, 2000, Kanzen submitted a questionnaire response,

alleging that its Malaysian home market sales were not “viable” for purposes of calculating

normal value because their volume was less than five percent of the volume of Kanzen’s U.S.

sales. (Alloy Confidential Appendix (Alloy Conf. App.) Tab 3.) Kanzen, therefore, submitted

third country market information to serve as the basis for NV. (Id.) On February 24, 2000, the

ITC published its preliminary determination that there was a reasonable indication that an

industry in the United States was being materially injured by reason of imports of the subject

merchandise from Malaysia. See Certain Stainless Steel Butt-Weld Pipe Fittings From

Germany, Italy, Malaysia, and the Philippines, Investigations Nos. 731-TA-864-867

(Preliminary), 65 Fed. Reg. 9,298 (Feb. 24, 2000).

On August 2, 2000, after reviewing the questionnaire responses submitted by Kanzen,

1
Commerce determined that it would not be practicable to investigate all four Malaysian
producers/exporters listed in the AD Petition and therefore limited its investigation to the largest producer/exporter,
Kanzen Tetsu Sdn. Bhd., pursuant to 19 U.S.C. § 1677f-1(c)(2). See Notice of Preliminary Determination of Sales
at Not Less Than Fair Value and Postponement of Final Determination: Stainless Steel Butt-Weld Pipe Fittings
Consol. Court No. 01-00099 Page 4

Commerce published its preliminary determination. See Notice of Preliminary Determination of

Sales at Not Less Than Fair Value and Postponement of Final Determination: Stainless Steel

Butt-Weld Pipe Fittings from Malaysia, 65 Fed. Reg. 47,398 (Aug. 2, 2000) (“Preliminary

Determination”). Commerce estimated a de minimis weighted-average dumping margin of 0.59

percent and thus preliminarily determined that stainless steel butt-weld pipe fittings from

Malaysia were not being sold, nor were they likely to be sold, in the United States at less than

fair value. Id. Important to the instant review, Commerce determined that Kanzen’s “aggregate

volume of home market sales of the foreign like product was less than five percent of its

aggregate volume of U.S. sales for the subject merchandise, . . . [and thus] not viable.” Id. at

47,399. Therefore, Commerce based NV on Kanzen’s sales to the United Kingdom because

Kanzen’s aggregate volume of sales of the foreign like product in the U.K. was more than five

percent of its aggregate volume of U.S. sales of the subject merchandise and therefore viable.

See id.

Commerce then conducted a sales verification of Kanzen between September 25 and

September 29, 2000. See Sales Verification Report for the Anti-Dumping Duty Investigation

Covering Stainless Steel Butt-Weld Pipe Fittings from Malaysia for the period October 1, 1998

through September 30, 1999 (Oct. 11, 2000) (“Sales Verification Report”), reproduced at

Kanzen’s Conf. App. Tab 3. During its verification, Commerce conducted full quantity and

value reconciliation of Kanzen’s U.K., U.S., and home market sales. See December 15, 2000

Issues and Decision Memorandum (“Decision Memo”) from Joseph A. Spetrini, Deputy

Assistant Secretary, Import Administration, to Troy H. Cribb, Assistant Secretary for Import

from Malaysia, 65 Fed. Reg. 47,398, 47,399 (Aug. 2, 2000) (“Preliminary Determination”).
Consol. Court No. 01-00099 Page 5

Administration at Comment 2, reproduced at U.S. App. at 7. Commerce found nothing to

contradict Kanzen’s assertion that its Malaysian home market was not viable for purposes of

determining NV but that its third country sales to the United Kingdom did constitute a viable

market for such purposes. Id.

In its comments on the Preliminary Determination Alloy objected to Commerce’s

reliance on Kanzen’s third country sales to the United Kingdom as the basis for NV.

(Petitioners’ Case Brief at 3, reproduced at Alloy Conf. App. Tab 6.) Kanzen countered that the

U.K. market was a proper, viable market for calculating NV. Decision Memo at Comment 2.

After Commerce held a public hearing on November 22, 2000, it addressed all issues raised by

the parties in its Decision Memo. See Final Determination, 65 Fed. Reg. at 81,826. There,

Commerce agreed with Kanzen that the U.K. market was viable and proper to use as the

comparison market. Id.

Commerce expressly adopted its resolution of the issues raised in its Decision Memo

when it published its affirmative final determination of sales at less than fair value on December

27, 2000. See Final Determination, 65 Fed. Reg. at 81,826. Commerce calculated a final

weighted-average dumping margin of 7.51 percent for all Malaysian producers/exporters. See id.

at 81,827.

On December 28, 2000 Kanzen filed its first request with Commerce for correction of

certain alleged ministerial errors that Commerce denied because it claimed the alleged errors did

not fall within the definition of ministerial errors as provided for in the applicable statute and
Consol. Court No. 01-00099 Page 6

regulation. 2 Kanzen filed a second request for correction of alleged ministerial errors on

February 1, 2001, which Commerce again rejected, this time because it was untimely filed

factual information.

On July 6, 2001 Kanzen made a motion before the Court to supplement the

administrative record. Kanzen sought to include the submissions made by all parties related to

its request for correction of ministerial errors. Both the United States and Alloy opposed this

motion on July 20, 2001. On August 15, 2001 the Court denied Kanzen’s motion with leave to

renew at the time of filing its motion for judgment upon the agency record.

STANDARD OF REVIEW

This Court will sustain a final determination by Commerce unless it is “unsupported by

substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. §

1516a(b)(1)(B)(i) (1994). The substantial evidence standard applies to Commerce’s factual

findings. This standard requires more than a “mere scintilla” of evidence, Primary Steel, Inc. v.

United States, 834 F. Supp. 1374, 1380 (Ct. Int’l Trade 1993), and consists of “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co., Ltd. v. United

States, 750 F.2d 927, 933 (Fed. Cir. 1984). Under this standard, the Court will not disturb an

agency determination if its factual findings are reasonable and supported by the record as a

whole, even if there is some evidence that detracts from the agency’s conclusion. See Heveafil

Sdn. Bhd. & Filati Lastex Sdn. Bhd. v. United States, No. 98-04-00908, 2001 WL 194986, at *2

2
The nature of the ministerial errors will be discussed in more detail in the Court’s discussion of Kanzen’s renewed
Consol. Court No. 01-00099 Page 7

(Ct. Int’l Trade Feb. 27, 2001) (citing Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1563

(Fed. Cir. 1984)).

“Otherwise in accordance with law” governs Commerce’s legal interpretations of the

statutes it administers. To determine whether Commerce’s legal interpretation and application of

the antidumping statutes are in accordance with law, the Court applies the two-step test set forth

by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resource Defense Counsel, Inc., 467

U.S. 837, 842 (1984). Under this test, the Court examines whether the relevant statute addresses

the specific question at issue, and if not, whether the agency’s statutory interpretation is

reasonable in light of the overall statutory scheme. See id. at 842-43.

DISCUSSION

There are three questions presented in this case. The first, posed by Alloy’s 56.2 Motion,

is whether Commerce’s determination to rely on Kanzen’s third country sales to the United

Kingdom as the basis for NV is supported by substantial evidence on the record and is otherwise

in accordance with law. The second, posed by Kanzen’s 56.2 Motion, is whether Commerce’s

decision not to correct certain alleged ministerial errors is supported by substantial evidence on

the record and is otherwise in accordance with law. The third, posed by Kanzen’s renewed

motion, is whether there is any basis upon which to supplement the administrative record in this

case.

motion to supplement the administrative record and motion for judgment upon the agency record.
Consol. Court No. 01-00099 Page 8

I. Alloy’s Motion for Judgment Upon the Agency Record

A. Contentions of the Parties:

1. Plaintiffs/Alloy

Alloy contends Commerce’s decision to rely upon Kanzen’s third country sales as the

basis for NV is not supported by substantial evidence on the record and is not otherwise in

accordance with law. (Memorandum in Support of 56.2 Motion for Judgment Upon the Agency

Record Submitted by Plaintiffs Alloy Piping Products, Inc., et al. (“Alloy 56.2 Br.”) at 1.) Alloy

makes two primary arguments in support of this contention: (1) Commerce erred in relying upon

Kanzen’s third country sales to the United Kingdom as the basis for NV because those prices

were not “representative” as required by 19 U.S.C. § 1677b(a)(1)(B)(ii)(I); and (2) Commerce

should have used its discretion to use home market sales as the basis for NV even though

Kanzen’s home market sales fell below the five percent viability threshold required by 19 U.S.C.

§ 1677b(a)(1)(C). (Id. at 10-13.)

Alloy notes, at the outset, that the term “representative” is not defined in the statute,

corresponding regulation, legislative history, or case law. (Id.) Therefore, Alloy proposes that

the Court apply, by analogy, the methodology used in Commerce’s decision underlying Thai

Pineapple Pub. Co. v. United States, 946 F. Supp. 11, 16 (Ct. Int’l Trade 1996). In Thai

Pineapple, Commerce considered eight factors to determine whether third country sales were

made in the ordinary course of trade: customers, terms of sale, volume of sales, frequency of

sales, sales quantity, sales price, profitability, and market demand. Alloy believes these eight

factors could be applied to determine if Kanzen’s third country sales were “representative”

within the meaning of the statute. (Id. at 17-18.)
Consol. Court No. 01-00099 Page 9

Alloy bases its conclusion that Kanzen’s third country sales are not representative on four

factors. First, Alloy contends Kanzen’s sales to the U.K were not representative because they

were made at dumped prices. (Id. at 19.) Alloy argues Commerce must avoid using prices that it

has “reason to believe or suspect” are being dumped. (Id. at 18-19.) Alloy asserts that

Commerce did not, but should have, conducted a comparative analysis of sales price between

third country and home market, as Commerce did in Thai Pineapple. (Id. at 22.) This analysis

would have demonstrated to Commerce that there was a significant disparity between the

respective sales prices. (Id at 23.) Alloy asserts reliance on dumped sales in a third country will

understate the degree to which a foreign producer is dumping in the United States. (Id. at 19.)

Second, Alloy contends Kanzen’s U.K. sales were not representative because they were

made to only one customer. (Id. at 25.) In Thai Pineapple, Commerce found that sales were

made outside the ordinary course of trade, noting only one customer existed. Thai Pineapple,

946 F. Supp. at 16. In the case at hand, Alloy asserts that because Kanzen received only a small

number of orders by a single U.K. customer during the POI, the potential for price manipulation

precluded a finding that the U.K. sales were representative. (Alloy 56.2 Br. at 26, citing Koenig

& Bauer-Albert AG v. United States, 15 F. Supp. 2d 834, 840 (Ct. Int’l Trade 1998), aff’d in

part, rev’d in part (on other grounds), 2001 WL 893900 (Fed. Cir. Aug. 9, 2001).)

Third, Alloy contends Kanzen’s U.K. sales should not have been used because the terms

of sale were not representative of Kanzen’s sales to the United States. (Alloy 56.2 Br. at 27.)

Citing the “terms of sale” factor of Thai Pineapple, Alloy argues that the terms of sale between

Kanzen and its U.K. customer were aberrational and considerably more favorable to its U.K.

customer than those offered to Kanzen’s U.S. customers. (Alloy 56.2 Br. at 27.)
Consol. Court No. 01-00099 Page 10

Fourth, Alloy contends Kanzen’s third country sales should not be considered

representative because their volume differed only slightly from that of the home market. (Id. at

24.)

Finally, Alloy concludes that Commerce should reconsider using Kanzen’s home market

sales as the basis for NV. (Id. at 24-25.) Alloy argues both the statute and the regulation express

a preference for home market sales as the basis for NV. (Id., citing 19 U.S.C. § 1677b(a)(1)(B)

and 19 C.F.R. § 351.404(a).) In this case, adherence to the five percent test subverts the purpose

of the law. (Alloy Conf. Br. at 23.)

Alloy asks the Court to remand this case to Commerce with instructions to reconsider all

possible choices, including the use of home market sales, as the basis for NV. (Id. at 30.)

2. Defendant/United States & Defendant-Intervenors/Kanzen

The United States and Kanzen (collectively “Defendants”) contend Commerce’s decision

to use Kanzen’s third country sales to the United Kingdom as the basis for NV is supported by

substantial evidence on the record and is otherwise in accordance with law. (Defendant’s

Memorandum in Opposition to Plaintiffs’ and Defendant-Intervenors’ Rule 56.2 Motions for

Judgment Upon the Agency’s Record and Appendix (“U.S. Br.” and “U.S. App.”) at 12.)

Defendant makes two arguments in support of its contention: (1) Commerce properly decided to

use Kanzen’s third country sales as the basis for NV; and (2) Kanzen’s third country prices were

representative.

Defendants assert Kanzen’s home market sales fell below the five percent threshold

required by the so-called viability test, rendering them insufficient for purposes of determining
Consol. Court No. 01-00099 Page 11

NV. (Id. at 13-15.) Thus, as Defendant explains, the statute, 19 U.S.C. § 1677b(a)(1)(C), and

the corresponding regulation, 19 C.F.R. § 351.404(b)(1), direct Commerce to use third country

sales for such purpose. (Id. at 14-15.) Although Defendants agree with Alloy that inclusion of

the word “normally” in the statute provides Commerce with some flexibility in applying the five

percent test, Defendants contend Alloy has failed to make any convincing argument justifying a

departure from the test. (Id. at 24-25.)

Defendants next assert that Kanzen’s third country prices were representative.

Defendants argue that by simply using the term “representative,” without further elaboration,

Congress intended to give Commerce the discretion to determine representative prices on a case-

by-case basis. (Id. at 18.) Defendants argue Alloy’s reliance on the eight-factor approach of

Thai Pineapple is misguided. (Id. at 23.) Defendants contend the issue in Thai Pineapple, which

was whether a sale was made outside the ordinary course of trade, is distinguishable from the

issue in this case, which is whether Kanzen’s third country sales are representative. (Id.)

Defendants refute Alloy’s assertion that Kanzen’s third country sales to the U.K. were

sold at dumped prices and, therefore, not representative. (Id. at 22.) The United States contends

(1) Alloy incorrectly applies the “reason to believe or suspect” standard and (2) there is no

evidence to support Alloy’s contention that Kanzen’s third country sales were dumped. (Id. at

19-24.)

Defendants next refute Alloy’s claims that Kanzen’s U.K. sales are not representative

because they were made to only a single customer. (Id. at 25.) As discussed previously,

Defendants reject Alloy’s reliance on the eight factors laid out in Thai Pineapple, distinguishing

it from the instant case. (Id. at 26.) Even if the Court were to find the eight factors applicable,
Consol. Court No. 01-00099 Page 12

Defendants argue the various factors were evaluated in the aggregate; no one factor was deemed

to be dispositive, as Alloy urges in this case. (Id.) Defendants also reject Alloy’s claim that the

“potential for manipulation” of prices existed because Alloy made no attempt to support its

argument with any record evidence. (Id. at 27.)

Third, Defendants refute Alloy’s claims that Kanzen’s U.K. sales are not representative

because Kanzen’s terms of sale for its U.K. sales differed significantly from the terms of sale

offered on its U.S. sales. (Id.) Defendants point out that Commerce conducted a thorough

verification and found no discrepancies. (Id. at 27-28.) Accordingly, Defendants argue, this

argument lacks merit. Defendants conclude Kanzen’s U.K. sales are representative and urge the

Court to deny Alloy’s motion for judgment upon the agency record.

B. Analysis:

1. The Statutory Scheme

Under U.S. antidumping law, Commerce determines dumping margins by comparing

“the weighted average of the normal values to the weighted average of the export prices (and

constructed export prices) for comparable merchandise.” 19 U.S.C. § 1677f-1(d)(1)(A)(i). The

question presented in this case is whether Commerce’s reliance upon Kanzen’s third country

sales to the United Kingdom as the basis for normal value (“NV”) is supported by substantial

evidence on the record and is otherwise in accordance with law. Thus, the Court’s analysis

begins with an examination of the statute, 19 U.S.C. § 1677b, governing the calculation of NV.

The statute first directs Commerce to use the exporter’s home market sales as the basis for NV:

(a)(1)(A) In general
Consol. Court No. 01-00099 Page 13

The normal value of the subject merchandise shall be the price described
in subparagraph (B), . . .
(B) Price

The price referred to in subparagraph (A) is –

(i) the price at which the foreign like product is first sold (or, in the
absence of a sale, offered for sale) for consumption in the exporting
country, in the usual commercial quantities and in the ordinary course of
trade and, to the extent practicable, at the same level of trade as the export
price or constructed export price . . . .

§ 1677b(a)(1)(A) & (B)(i).

Commerce must use the home market so long as it is viable. The home market will be

deemed non-viable if:

(ii) the administering authority determines that the aggregate quantity (or,
if quantity is not appropriate, value) of the foreign like product sold in the
exporting country is insufficient to permit a proper comparison with the
sales of the subject merchandise to the United States, or

§ 1677b(a)(1)(C)(ii) (emphasis added).3 For purposes of subparagraph (ii), supra, the statute

specifies that home market sales “shall normally be considered to be insufficient if such quantity

(or value) is less than 5 percent of the aggregate quantity (or value) of sales of the subject

merchandise to the United States.” § 1677b(a)(1)(C) (emphasis added).

If Commerce determines that the home market is non-viable, the statute directs

Commerce to use third country sales as the basis for NV. § 1677b(a)(1)(C). The statute imposes

a viability requirement upon third country sales as well. The statutory requirements for

Commerce’s selection of a third country NV are that:

(I) such price is representative,
Consol. Court No. 01-00099 Page 14

(II) the aggregate quantity (or, if quantity is not appropriate, value)
of the foreign like product sold by the exporter or producer in such
other country is 5 percent or more of the aggregate quantity (or
value) of the subject merchandise sold in the United States or for
export to the United States, and

(III) the administering authority does not determine that the
particular market situation in such other country prevents a proper
comparison with the export price or constructed export price.

§ 1677b(a)(1)(B)(ii). Finally, if Commerce determines that neither the home market nor a third

country furnish a viable measure of normal value, the statute directs Commerce to use a

constructed value to calculate NV. See § 1677b(a)(4).4

2. Commerce’s Determination That the Home Market Was Not Viable Is Supported by
Substantial Evidence on the Record and Is Otherwise In Accordance With Law

The Court finds Commerce’s determination that Kanzen’s home market was not viable

for comparison purposes is supported by substantial evidence on the record and is otherwise in

accordance with law because the aggregate quantity of home market sales was less than five

percent of the aggregate quantity of sales of the subject merchandise to the United States. See

Preliminary Determination, 65 Fed. Reg. at 47,399. On the other hand, the aggregate volume of

Kanzen’s U.K. sales was more than five percent of its aggregate volume of U.S. sales. Id.

Therefore, after conducting full sales verifications of Kanzen’s U.K., U.S., and home market

sales, Commerce properly determined the home market was not viable.

3
The statute provides two other scenarios that will cause the home market to be non-viable, however, they are not at
issue in this case. See 19 U.S.C. § 1677b(a)(1)(C)(i) & (iii).
4 While the statute grants Commerce discretion to choose third country sales or constructed value, Commerce’s
regulation expresses a preference for third country sales as the basis for NV. The regulation provides:
(f) Third country sales and constructed value. The Secretary normally will calculate normal value based on
sales to a third country rather than on constructed value if adequate information is available and verifiable .
. . . 19 C.F.R. § 351.404(f) (1994). Commerce followed this sequence in its investigation, first examining
home market viability and then proceeding to third country market viability.
Consol. Court No. 01-00099 Page 15

The Court rejects Alloy’s argument that Commerce’s strict adherence to the five percent

test in this case is subversive and contradicts the intent of the statute. The Court agrees the

statute provides Commerce with flexibility to consider home market sales even if the aggregate

volume of sales is less than five percent by stating such sales “shall normally be considered to be

insufficient . . . .” 19 U.S.C. § 1677b(a)(1)(C) (emphasis added).5 The Statement of

Administrative Action (“SAA”) supports this interpretation by explicitly providing an exception

to this general rule: “In unusual situations . . . home market sales constituting less than five

percent of sales to the United States could be considered viable . . . .” H.R.REP. NO. 103-826, at

821, reprinted in 1994 U.S.C.C.A.N. 4040, at 4162 (emphasis added).6

However, Alloy fails to demonstrate how this is an “unusual situation” that renders the

five percent threshold inappropriate, and it points to no supporting evidence in the record. The

Court finds Commerce properly chose to proceed to an examination of the viability of Kanzen’s

third country sales to the United Kingdom as the basis for NV because Commerce followed its

consistent practice of strictly abiding by the five percent test as a threshold for viability. See,

e.g., Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Wire Rod

from Japan, 63 Fed. Reg. 40,434, 40,441-42 (July 29, 1998). Additionally, this Court has

affirmed Commerce’s reliance on the five percent threshold absent a showing of some unusual

situation that would render its application inappropriate. See, e.g., Chemetals, Incorporated v.

5
Commerce notes in the preamble to the final regulations that it “retained the word ‘normally’ in order to provide
the Department with the flexibility to deal with unusual situations.” Antidumping Duties; Countervailing Duties:
Final Rule, 62 Fed. Reg. 27,296, 27,358 (May 19, 1997) (“Preamble”).
6 The Court notes the questionnaire Commerce issued to Kanzen states that “[i]f the volume of your home market
sales . . . is less than five percent of the volume of your sales to the United States of the subject merchandise . . .
contact the official in charge because the Department, except in unusual situations, will not use your home market as
the basis for calculating normal value.” (Alloy Conf. App. Tab 3, at 3 (emphasis added).) This demonstrates to the
Court that this is an established practice for Commerce.
Consol. Court No. 01-00099 Page 16

United States, 138 F. Supp.2d 1338, 1349 (Ct. Int’l Trade 2001) (holding plaintiffs failed to

demonstrate an unusual situation invalidating use of five percent test).

3. Commerce’s Determination to Use Kanzen’s Third Country Sales to the United
Kingdom as the Basis for Normal Value is Supported By Substantial Evidence on the
Record and is Otherwise in Accordance With Law

The Court finds Commerce’s selection of the United Kingdom as Kanzen’s third country

comparison market and its determination that Kanzen’s third country sales to the U.K. are viable

is supported by substantial evidence on the record and is otherwise in accordance with law.

Neither the statute, legislative history, nor regulations define “representative,” but the

regulation does limit the inquiry of market viability to one criterion: the sufficiency of sales in

the third country. See 19 C.F.R. § 351.404. The third country market will be deemed viable if

Commerce is “satisfied that sales of the foreign like product . . . are of sufficient quantity [i.e. 5

percent or more of the aggregate quantity of the subject merchandise to the United States] to

form the basis of normal value.” 19 C.F.R. § 351.404(b)(1) & (2). Once Commerce is satisfied

that the third country market is viable, the party alleging that the prices are not “representative”

bears the burden of “establish[ing] to the satisfaction of [Commerce] that” the criterion is not

met.7 See § 351.404(c)(2); Preamble, 62 Fed. Reg. at 27,357. In the Preamble Commerce

explains its rationale for focusing only on the sufficiency of the sales for the purpose of

establishing viability:

[T]he criteria of a “particular market situation” and the “representativeness” of prices fall

7
Commerce also commented on the burden of proof in this scenario in its preamble to the final rules:
[B]y using the phrase “if it is established to the satisfaction of the Secretary” in paragraph (c)(2), we merely were
attempting to provide that the party alleging . . . that sales are not “representative” has the burden of
demonstrating that there is a reasonable basis for believing . . . that sales are not “representative.”
Preamble, 62 Fed. Reg. at 27,357.
Consol. Court No. 01-00099 Page 17

into the category of issues that the Department need not, and should not, routinely
consider. . . . [T]he SAA at 821 recognizes that the Department must inform exporters at
an early stage of a proceeding as to which sales they must report. This objective would
be frustrated if the Department routinely analyzed the existence of a “particular market
situation” or the “representativeness” of third country sales.

Preamble, 62 Fed. Reg. at 27,357. The Court finds this approach to be a reasonable application

of the statute. The time frame within which Commerce must conduct its investigation is

necessarily very short. Therefore, it is sensible to establish a bright line rule for determining

viability. Indeed, the SAA states that “[a] clear standard governing most cases is necessary

because Commerce must determine whether the . . . market is viable at an early stage in each

proceeding to inform exporters which sales to report.” SAA at 821. If a party wishes to

challenge the use of third country sales because it believes those sales are not representative,

there is a procedure for that party to do so.

In this case, Alloy does not dispute Commerce’s determination that the aggregate

quantity of the foreign like product sold by Kanzen in the U.K. was 5 percent or more of the

aggregate quantity of the sales of the subject merchandise to the United States. See Preliminary

Determination, 65 Fed. Reg. at 47,399. Thus, Kanzen’s third country sales to the U.K. are

presumptively representative, and the burden is on Alloy to “establish[] to the satisfaction of

[Commerce] that . . . the price is not representative . . . .” 19 C.F.R. § 351.404(c)(2)(ii). Alloy

contends Commerce erred in basing NV on Kanzen’s third country sales to the U.K. because

those sales were not “representative” as required by 19 U.S.C. § 1677b(a)(1)(B)(ii)(I). Alloy

bases this contention on four factors. For the reasons that follow, the Court finds Alloy has

failed to satisfy its burden in this case.
Consol. Court No. 01-00099 Page 18

a. There is No Evidence Kanzen’s Third Country Sales Were Dumped

Alloy argues that Commerce must avoid using any prices that it has “reason to believe or

suspect” may be dumped. However, the Court is not persuaded that the standard from non-

market economy proceedings should be applied to the determination of a suitable comparison

market. Even if it were, Alloy’s application of the standard would still be incorrect because the

“reason to believe or suspect” standard requires some formal finding of dumping. See, e.g.,

Issues and Decisions Memo for the 1998-99 Administrative Review of Tapered Roller Bearings

and Parts Thereof, Finished and Unfinished, from the People’s Republic of China, Final Results,

reprinted at 2001 WL 118968 (Jan. 10, 2001) (Comment 1). There was no formal finding of

dumping in this case. Thus, the Court finds without merit Alloy’s contention that Commerce

“could have evaluated for itself (as the domestic industry did) whether Kanzen’s U.K. prices

were dumped and were therefore unsuitable for use as normal value.” (Alloy 56.2 Br. at 21-22.)

Second, while the Court agrees that the goal of accuracy cannot be achieved if Commerce

relies upon dumped third country prices to calculate NV, there is simply no record evidence to

support Alloy’s conjecture here. Alloy provided none of the information normally required in a

dumping investigation to perform the necessary margin calculations. Simply having a lower

price in the U.K is insufficient for the purpose of demonstrating dumping.

b. Kanzen’s Sales to a Single U.K. Customer Do Not Make Them Unrepresentative

The Court rejects Alloy’s argument that Kanzen’s U.K. sales are not representative

because they were made to a single customer. First, Alloy’s reliance on Thai Pineapple is

misguided. Thai Pineapple is distinguishable from the present case for two reasons. The

question presented in Thai Pineapple was whether the respondent’s sale was outside the ordinary
Consol. Court No. 01-00099 Page 19

course of trade, not whether the respondent’s third country sales were “representative.”

Furthermore, in that case this Court was applying pre-Uruguay Round law. The applicable

statute, 19 U.S.C. § 1677b, changed significantly after enactment of the Uruguay Round

Agreements Act. Indeed, the requirement that a respondent’s third country sales be

“representative” was added by the Uruguay Round Agreements Act.

Second, Alloy’s argument that the existence of only one customer provides the potential

for manipulation of prices is flawed for two reasons. First, Koenig & Brauer-Albert AG is

inapposite. There one of the respondents amended its contracts by increasing the sales price

several months after petitioner filed its AD petition. See Koenig, 15 F. Supp.2d at 840. The

respondent challenged Commerce’s refusal to accept the amendments in its margin calculation.

This Court upheld Commerce’s rejection of the price amendments to the contract based upon the

potential for manipulation. To support its conclusion, this Court pointed to Commerce’s

standard practice “not to accept price adjustments instituted after the filing of a petition . . . so as

to discourage potential manipulation of potential dumping margins . . . .” Id. (internal citations

and quotations omitted) (emphasis added). That is simply not the scenario in this case. Here,

there was no action taken by Kanzen that would cause Commerce to believe the potential for

manipulation existed. Second, and perhaps more significant, Alloy cites no record evidence to

support its assertion. Indeed, in rejecting petitioner’s claim in Koenig this Court noted that the

“price amendments themselves, made after the initiation of the investigation, constitute evidence

that manipulation may occur.” Id. There were no adjustments or amendments in this case

indicating Kanzen was attempting to manipulate the margin. The Court therefore rejects this

argument.
Consol. Court No. 01-00099 Page 20

c. The Difference in U.K.’s Terms of Sale Do Not Make Them Unrepresentative

The Court also rejects Alloy’s final argument that Kanzen’s U.K. sales are not

representative because Kanzen’s U.K. terms of sale differed significantly from its U.S. terms of

sale. Differences in the terms of sales do not automatically lead to the conclusion that Kanzen’s

U.K. sales are not “representative.” Alloy does not demonstrate how the differences cause them

to be unrepresentative. Commerce specifically addressed Alloy’s concerns over these

differences in the terms of sale in its Decision Memo after conducting a thorough sales

verification. For example, with respect to the early payment discount offered by Kanzen to its

U.K. customer but not its U.S. customers, Commerce noted that:

The record is clearly developed from the sales verification as to establish that the early
payment discount was applied only to a specific invoice for a U.K. sale, and was
specifically calculated according to the details and circumstances of that sale.
Furthermore, we . . . found no other early payment discounts during the POI. . . . We are
properly treating the discount as a post-sale price adjustment . . . addressed in our normal
value calculation.

Decision Memo at Comment 7 (internal citations omitted). Additionally, Commerce addressed

petitioners concerns over the change in terms of payment from FOB to CIF, stating:

This further supports our basis for using invoice date as the date of sale in the comment
section on “Market viability,” . . . and our determination that the material terms of sale
for the U.K. market during the POI were not necessarily established at
confirmation/contract date, but rather remained alterable by the parties after that time.

Id. at Comment 6. Commerce concluded that the differences in the terms of sale did not affect

market viability:

As for the substantial changes which petitioners claim render the U.K. market an
improper comparison market, while such changes serve to justify the choice of invoice
date as the date of sale, they are not so problematical or anomalous as to place the
viability of the U.K. market in question. In fact, Kanzen provided at verification full
documentation regarding these changes. This documentation supports a conclusion that
Consol. Court No. 01-00099 Page 21

these circumstantial changes were made in the ordinary course of business, and do not
support petitioners’ assertion that these constituted “unique” post-sale adjustments
specifically designed “to lower the selling price for it’s {sic} U.K. market.” See
Petitioner’s Brief at 12.

Decision Memo at Comment 2. The Court finds Commerce thoroughly considered these

discrepancies during the investigation. The Court therefore holds Commerce’s decision to use

Kanzen’s third country sales to the U.K. as the basis for NV is supported by substantial evidence

on the record and is otherwise in accordance with law.

II. Kanzen’s Renewed Motion to Supplement the Administrative Record and Motion for
Judgment Upon the Agency Record

A. Background

Kanzen brings two motions before the Court. First, Kanzen renews its motion to

supplement the administrative record. Second, Kanzen alleges in its motion for judgment upon

the agency record that Commerce failed to correct certain alleged ministerial errors.

Kanzen alleges that its August 15, 2000 Section C supplemental questionnaire response

contained ministerial errors in the reporting of payment dates and credit expenses for 64 of its

listing of 10,028 U.S. sales. (Memorandum of Points and Authorities in Support of Plaintiff,

Kanzen Tetsu’s CIT Rule 56.2 Motion for Judgment Upon the Agency Record (Confidential

Version) (“Kanzen 56.2 Br.”) at 4.) Kanzen alleges that an incorrect high value of $42.00 was

reported as the credit expense for these 64 sales. (Id. at 5; Kanzen Conf. App. Tab 4) Kanzen

claims it prepared its Section C U.S. sales listing using Microsoft Excel, and originally reported

“#N/A” in those fields that required calculated values (e.g. credit expenses) for which the

number was not available since payment had not been received at the time of filing. (Kanzen
Consol. Court No. 01-00099 Page 22

56.2 Br. at 8.) Kanzen asserts the credit expense errors resulted from a technical problem in the

SAS software when “#N/A” in the Excel spreadsheet was converted into SAS format. (Id.)

Kanzen alleges that the program incorrectly converted the symbol “#N/A” into the numeric value

“42.00.” Kanzen claims the $42.00 amount was hundreds of times higher than most of the credit

expenses reported for Kanzen’s 9,964 other U.S. sales. (Id. at 6.) Kanzen asserts that, but for

the computer conversion error, the de minimis margin calculated in the Preliminary

Determination would have remained in effect for the Final Determination. As noted earlier,

Commerce declined to correct the alleged errors.

B. Kanzen’s Renewed Motion to Supplement the Administrative Record

The Court notes the standard of review governing the merits of the underlying action, is

whether it is unsupported by substantial evidence on the record, or otherwise not in accordance

with law.” 19 U.S.C. 1516a(b)(1)(B)(i) (emphasis added). Judicial review is therefore limited

to the evidence contained in the administrative record. See Kerr-McGee Chem. Corp. v. United

States, 955 F. Supp. 1466, 1471 (Ct. Int’l Trade 1997) (citing Neuweg Fertigung GmbH v.

United States, 797 F. Supp. 1020, 1022 (Ct. Int’l Trade 1992)). The administrative record for

review shall consist of:

(i) a copy of all information presented to or obtained by the Secretary, the administering
authority, or the Commission during the course of the administrative proceeding,
including all governmental memoranda pertaining to the case and the record of ex parte
meetings required to be kept by section 1677f(a)(3) of this title; and
(ii) a copy of the determination, all transcripts or records of conferences or hearings, and
all notices published in the Federal Register.
Consol. Court No. 01-00099 Page 23

19 U.S.C. § 1516a(b)(2)(A) (emphasis added). The statute and case law of this Court are clear

that the administrative record is limited to “the information that was presented to or obtained by

the agency making the determination during the particular review proceeding for which section

1516 authorizes judicial review.”8 Beker Indus. Corp. v. United States, 7 CIT 313, 316 (1984);

see also Kerr-McGee, 955 F. Supp. at 1472; Win-Tex Prods., Inc. v. United States, 797 F. Supp.

1025, 1026 (Ct. Int’l Trade 1992). The Court has also held that “[a]ny information received by

Commerce after the particular determination at issue is not part of the reviewable record.”

Intrepid v. Pollock, 15 CIT 84, 85 (1991) (citing Ipsco, Inc. v. United States, 715 F. Supp. 1104,

1109 (Ct. Int’l Trade 1989). The “particular determination at issue” in this case is the ITA’s

Final Determination published on December 27, 2000. Therefore, the administrative record in

this case consists of all materials submitted to or obtained by the ITA between the initiation of

the AD investigation on January 18, 2000 and the publication of the Final Determination on

December 27, 2000.

This Court has consistently held that “[i]f ministerial errors exist in the Final

Determination, they will be manifest in the administrative record as submitted and plaintiff can

ask this Court for a remand to correct any such errors based on the record as submitted.” NSK

Ltd. v. United States, 788 F. Supp. 1228, 1229 (Ct. Int’l Trade 1992); see also Brother Indus.,

Ltd. v. United States, 771 F. Supp. 374, 384, 388 (Ct. Int’l Trade 1991); Koyo Seiko, 746 F.

8
The legislative history of the Trade Agreements Act of 1979 is also clear on this point. The Senate
Committee on Finance specifically stated:
Judicial review of determinations subject to the provisions of subsection (a)(1) would proceed upon the
basis of information before the relevant decision-maker at the time the decision was rendered including any
information that has been compiled as part of the formal record. The court is not to conduct a trial de novo
in reviewing such determinations.
S. REP. NO. 96-249 at 247-48 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 633 (emphasis added).
Consol. Court No. 01-00099 Page 24

Supp. at 1110; Serampore, 696 F. Supp. at 673. Kanzen contends NSK Ltd. is distinguishable

from the present case. There Commerce neither retained the parties’ submissions nor made a

ruling on the request for correction. Kanzen claims the instant case is different because

Commerce accepted and retained the parties’ submissions and issued a decision memorandum

denying the request for correction. Thus, those documents should be considered part of the

administrative record. (Kanzen 56.2 Br. at 9-10.) The Court finds this is a distinction without a

difference. The materials are not properly part of the record because they had no bearing on

Commerce’s findings and decisions in its Final Determination. If an error was committed, it

will be “manifest from the record as submitted.” The Court, therefore, denies Kanzen’s renewed

motion to supplement the administrative record.

C. Kanzen’s Motion for Judgment Upon the Agency Record

1. Contentions of the Parties

a. Defendant-Intervenors/Kanzen

Kanzen contends that Commerce’s decision not to correct certain alleged ministerial

errors (“ME”) in its Final Determination is unsupported by substantial evidence on the record

and not otherwise in accordance with law. (Id. at 2.) Kanzen supports this contention with three

main arguments: (1) Commerce’s decision is inconsistent with the case law of both this Court

and the Court of Appeals for the Federal Circuit (“CAFC” or “Federal Circuit”); (2) statutory

authority does not prohibit Commerce from correcting a respondent’s clerical errors; (3)

Commerce’s Final Determination cannot be supported by substantial evidence if an error exists

in the record.
Consol. Court No. 01-00099 Page 25

First, Kanzen argues that Commerce’s failure to correct certain ME’s was an abuse of

discretion and not consistent with this Court’s precedent. (Id. at 13-17, citing Koyo Seiko Co. v.

United States, 746 F. Supp. 1108 (Ct. Int’l Trade 1996); Technoimportexport v. United States,

766 F. Supp. 1169, 1179 (Ct. In’tl Trade 1991); Serampore v. United States, 696 F. Supp. 665,

673 (Ct. Int’l Trade 1988)). Kanzen notes that both this Court and the CAFC have stated that the

statutory goal of calculating accurate dumping margins often outweighs the interest of finality,

particularly where the correction does not pose a significant burden on Commerce. (Id. at 13.)

Kanzen contends the CAFC’s holding in NTN Bearing Corp. v. United States, 74 F.3d 1204

(Fed. Cir. 1995) is controlling and the alleged errors should be corrected. (Kanzen 56.2 Br. at

24.) Kanzen notes the issue in NTN Bearing was whether Commerce’s refusal to accept

corrections resulting from the respondent’s error after the time for submitting new factual

information had expired was an abuse of discretion. The CAFC held Commerce’s refusal did

constitute an abuse of discretion because “[c]orrection of NTN errors would neither have

required beginning anew nor have delayed making the final determination. A straightforward

mathematical adjustment was all that was required.” (Id. at 23, quoting NTN Bearing, 74 F.3d at

1208.)

Kanzen contends Commerce’s rejection of Kanzen’s request for correction of ME’s as

untimely is clearly not in accordance with NTN Bearing because the statutory provision cited by

the CAFC, as well as Commerce’s regulation, expressly provide that Commerce is permitted to

correct clerical errors after a final determination is issued. (Kanzen 56.2 Br. at 24, citing 19

U.S.C. § 1675(h); 19 C.F.R. § 351.224(c).) Correcting the errors would not pose a burden on

Commerce since it would merely require an adjustment to the computer program to correct the
Consol. Court No. 01-00099 Page 26

deficiency. Commerce could then simply rerun the program. (Kanzen 56.2 Br. at 21-22.)

Kanzen asserts this Court has also specifically recognized that computer programming

errors are the type of ME’s Commerce should correct. (Id. at 26-27, citing Toyota Motor Sales,

U.S.A., Inc. v. United States, 930 F. Supp. 636 (Ct. Int’l Trade 1996); Torrington Co. v. United

States, 853 F. Supp. 446 (Ct. Int’l Trade 1994); Federal Mogul Corp. v. United States, 872 F.

Supp. 1011 (Ct. Int’l Trade 1994).) Kanzen concedes the three cases cited involved situations in

which the errors committed were in Commerce’s own margin calculation program. (Id. at 27.)

Nonetheless, Kanzen argues in each case this Court sought accurate determinations,

demonstrating that accuracy frequently weighs more heavily in the balance against finality. (Id.)

Second, Kanzen argues that nothing in the statute, legislative history, or Commerce’s

regulations prohibits Commerce from correcting the clerical errors existing in this case. (Id. at

18 (emphasis added).) Kanzen notes that neither the statute nor Commerce’s regulation specify

whose errors may be deemed ministerial. (Id. at 18-20, citing 19 U.S.C. § 1673d(e); 19 C.F.R. §

351.224(c)(1), (e), & (f).) Furthermore, Kanzen argues, the Conference Report accompanying

Section 1333 of the Omnibus Trade and Competitiveness Act of 1988 (establishing procedures

for the correction of ME’s) expresses concern for the accuracy of Commerce’s final

determinations, but it does not create any requirement that Commerce correct only its own errors.

(Kanzen 56.2 Br. at 19, citing H.R. Conf. Rep. 100-576 at 109, Apr. 20, 1988.) Kanzen

concedes that the Preamble states the regulation applies only “to errors made by the

Department.” (Kanzen 56.2 Br. at 20, citing Preamble, 62 Fed. Reg. at 27,327.) However,

Kanzen asserts Commerce qualifies this by acknowledging it has a practice of correcting clerical

errors made by a respondent “if the Department can assess from the information already on the
Consol. Court No. 01-00099 Page 27

record that an error has been made, that the error is obvious from the record, and that the

correction is accurate.” (Kanzen 56.2 Br. at 20, citing Preamble, 62 Fed. Reg. at 27,327.)

Kanzen argues that it satisfies each of the three prongs of this test. (Kanzen 56.2 Br. at 20-21.)

Third, Kanzen contends Commerce’s decision is unsupported by substantial evidence.

(Id. at 28.) Kanzen argues the record clearly shows the final margin calculated by Commerce

incorporated incorrect credit expenses reported for certain sales. This error was an inadvertent

programming conversion error that fundamentally affects the accuracy of the margin. Kanzen

argues Commerce’s determination cannot be supported by substantial evidence when contrary

evidence demonstrates the Final Determination is fundamentally inaccurate. (Id.) Kanzen

contends the Court should remand to Commerce for correction of these errors. (Id. at 30.)

b. Defendant/United States & Plaintiffs/Alloy

The United States and Alloy contend Commerce’s decision not to correct Kanzen’s

alleged ministerial errors is supported by substantial evidence on the record and otherwise in

accordance with law.

First, United States and Alloy argue that the respondents bear the burden of creating an

adequate and accurate record within the prescribed statutory time limits. (U.S. Br. at 30-31,

citing, Tianjin Machinery Import & Export Corp. v. United States, 806 F. Supp. 1008, 1015 (Ct.

Int’l Trade 1992); Domestic Industry’s Response to Kanzen Tetsu’s Rule 56.2 Motion for

Judgment Upon the Agency Record (“Alloy Resp. Br.”) at 14, citing RHP Bearings v. United

States, 875 F. Supp. 854, 857 (Ct. Int’l Trade 1995).) United States and Alloy contend this Court

has held Commerce is not required to correct a respondent’s errors when erroneous data is
Consol. Court No. 01-00099 Page 28

reported and not timely corrected. (Alloy Resp. Br. at 14-15.) Accordingly, United States and

Alloy argue Kanzen’s failure to submit correct data in the August 15, 2000 submission remains

its own responsibility, and Commerce did not abuse its discretion by not correcting the alleged

errors. (U.S. Br. at 31; Alloy Resp. Br. at 15.)

Second, United States and Alloy distinguish the case law used by Kanzen in support of its

position that Commerce should have corrected Kanzen’s alleged error. In Koyo Seiko, United

States and Alloy note that the final margin was 70.44 percent, a drastic difference from the final

margin of 7.51 percent in this case. Thus, there was no reason to believe the Final

Determination was tainted with numerous ME’s as in Koyo Seiko. Additionally, unlike the

scenario in Koyo Seiko, Commerce never possessed a hard copy of the Excel spreadsheet data

and only learned of the alleged errors after issuing the Final Determination. (U.S. Br. at 32-34;

Alloy Resp. Br. at 17, n.7.) In Technoimportexport, the respondents notified Commerce prior to

the final determination and the Court directed Commerce to make the correction. (U.S. Br. at

34.) Finally, in Serampore, the Court had already ordered a remand for Commerce to reconsider

a separate issue and so also directed Commerce to determine whether there was an error in the

computer input calculation. Here, there has been no remand ordered, thus there is no similar

basis to remand for the correction of the alleged errors. (U.S. Br. at 35.) Furthermore, United

States and Alloy emphasize that in all three computer error cases cited by Kanzen, Commerce

committed the programming errors. Thus, the computer error cases support the position that

only Commerce’s ministerial errors are the type of errors to be corrected. (Id. at 35-36.)

United States and Alloy also distinguish NTN Bearing from the present case. United

States and Alloy note in NTN Bearing the respondent informed Commerce of its own error in its
Consol. Court No. 01-00099 Page 29

case brief filed three months prior to the issuance of the final determination. (Id. at 39.) The

CAFC noted that because the respondent informed Commerce of the alleged errors shortly after

the preliminary determination, “the tension between finality and correctness simply did not exist

at the time NTN requested correction.” (Id. at 39, quoting NTN Bearing, 74 F.3d at 1208.) In

this case, Kanzen notified Commerce of the alleged errors after the Final Determination,

heightening the “tension” between the strict statutory time limits for correcting ME’s and the

need for correctness. (U.S. Br. at 39-40.) United States and Alloy posit that if interested parties

were allowed to submit unlimited lists of their own alleged errors after a final determination,

Commerce might never be able to complete its work within the statutory time limits. (Id. at 40.)

Third, United States and Alloy argue neither the statute, legislative history, nor

Commerce’s regulations require Commerce to correct respondent’s errors following a final

determination. (Id. at 36.) (emphasis added). United States and Alloy assert Congress provided

for the correction of ME’s because it recognized the need to report dumping margins as

accurately as possible. (Id.) However, United States and Alloy note the Preamble clearly

applies the procedures for correction of ME’s only to errors attributable to Commerce. (Id. at 38,

citing Preamble, 62 Fed. Reg. at 27,327.) In addition, United States and Alloy argue Commerce

will accept corrections of respondent’s errors under the six conditions outlined in Certain Fresh

Cut Flowers From Colombia; Final Results of Antidumping Duty Administrative Reviews, 61

Fed. Reg. 42,833 (Aug. 19, 1996) (“Colombian Flowers”). (U.S. Br. at 41.) United States and

Alloy point out that Commerce corrected other clerical errors properly brought to its attention

immediately after the Preliminary Determination, but Kanzen failed to avail itself of these

corrective procedures for the errors at issue in this case. (Id. at 41-42, citing Decision Memo at
Consol. Court No. 01-00099 Page 30

Comment 1.)

Fourth, United States and Alloy reject Kanzen’s argument that the error in this case is

“obvious,” and therefore excepts a respondent from the burden of submitting accurate data.

(Alloy Resp. Br. at 21.) United States and Alloy claim the error could not be “obvious” since

Kanzen did not notice its own error in the four months that passed between its August 15, 2000

submission and the issuance of the Final Determination. (Id.) United States and Alloy also

reject Kanzen’s argument that Commerce should have realized an error existed because the final

margin calculations were affirmative in comparison to the de minimis preliminary determination.

(Alloy Resp. Br. at 22.) United States and Alloy argue Commerce made many significant

changes between the Preliminary and Final Determinations, including changes to the third-

country and U.S. databases, Kanzen’s addition of new U.S. selling expenses in the August 15,

2000 submission, and the use of facts available in certain instances. (Id. at 22; U.S. Br. at 43.)

Finally, United States and Alloy contend correction of Kanzen’s alleged error would

require additional fact-finding. (Alloy Resp. Br. at 23.) United States and Alloy assert that

during the course of the investigation, Kanzen did not fully disclose the nature of its U.S. credit

expense calculation. Further, Kanzen never submitted its Excel database or disclosed that it was

submitting new payment dates for certain sales on August 15,2000, and it never revealed that it

had not received payment for other sales. (Id. at 24.) United States and Alloy argue that it

would have been improper for Commerce to have accepted at face value the new claims and

factual assertions submitted by Kanzen after the Final Determination was issued. (Id.) Thus,

Commerce’s decision to reject Kanzen’s claims that a clerical error had been submitted was not

an abuse of discretion.
Consol. Court No. 01-00099 Page 31

2. Analysis

The statute governing the correction of ministerial errors directs Commerce to “establish

procedures for the correction of ministerial errors in final determinations within a reasonable

time after the determinations are issued . . . .” 19 U.S.C. § 1673d(e). The regulations

promulgated pursuant to the statute set out the “[p]rocedures for the correction of ministerial

errors,” allowing parties to “submit comments concerning any ministerial error” in the

calculations and commanding the Secretary to “analyze any comments received and, if

appropriate, . . . correct any ministerial error by amending the final determination . . . .” 19

C.F.R. § 351.224(c), (e) (2000). The term “ministerial error” is defined in the regulation as “an

error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate

copying, duplication, or the like, and any other similar type of unintentional error which the

Secretary considers ministerial.” § 351.224(f).

Commerce’s stated practice is to correct only its own errors: “The provisions of §

351.224—covering disclosure of the Department’s calculations and procedures for correction of

ministerial errors . . . [apply] only to errors made by the Department.” Preamble, 62 Fed. Reg. at

27,327 (emphasis in original). Furthermore, Commerce has stated that “[e]rrors made by

respondents in their submissions to the Department, such as transposing digits as a result of a

data input error or other computer errors resulting in the omission of data . . . are not governed by

the provisions of § 351.224.” Id. (emphasis in original). The Court finds it is a reasonable

application of the statute for Commerce to limit the correction of ME’s to those attributable to

Commerce.
Consol. Court No. 01-00099 Page 32

Applying Commerce’s standard practice to the facts of this case, it is clear that Kanzen’s

alleged errors are not properly subject to correction under the provisions of 19 C.F.R. § 351.224.

The errors allegedly occurred during the conversion of data from Microsoft Excel to SAS. The

data was under the control of Kanzen both before and after the conversion. Thus, this is an issue

of “[e]rrors made by respondents in their submission” to Commerce “as a result of a data input

error or other computer errors.” Id.

The general rule with regard to a respondent’s submission of data to Commerce during

the course of an AD investigation or review is that the respondent bears the burden and

responsibility of creating an accurate record within the statutory timeline. See RHP Bearings v.

United States, 875 F. Supp. 854, 857 (Ct. Int’l Trade 1995); see also Yamaha Motor Co., Ltd. v.

United States, 910 F. Supp. 679, 687 (Ct. Int’l Trade 1995) (“It is the respondent’s obligation to

supply Commerce with accurate information.”); Societe Nouvelle De Roulements v. United

States, 910 F. Supp. 689, 694 (Ct. Int’l Trade 1995) (“SNR”) (“Respondents ‘must submit

accurate data’ and ‘cannot expect Commerce, with its limited resources to serve as a surrogate to

guarantee the correctness of submissions.’”).

Furthermore, this Court has held that Commerce is not required to correct a respondent’s

errors when erroneous data are reported and not timely corrected. See Sugiyama, 797 F. Supp. at

994 (stating “[e]ven if Commerce possessed the personnel to identify errors Plaintiffs made in

their data base within the statutory deadlines, Commerce would have no basis for deciding which

portion of the submission was correct or erroneous.”); Makita Corp. v. United States, 974 F.

Supp. 770, 780 (Ct. Int’l Trade 1997); see also Acciai Speciali Terni S.p.A. v. United States, 142

F. Supp. 2d 969, 982 (Ct. Int’l Trade 2001) (“It is respondent’s obligation to supply Commerce
Consol. Court No. 01-00099 Page 33

with accurate information. . . . In general, Commerce is not required to correct a respondent’s

errors when erroneous data [are] reported and not timely corrected.”) (internal quotations and

citations omitted).

However, recognizing that the volume of information respondents must submit to

Commerce during an investigation can lead to errors, Commerce has long had a policy of

correcting a respondent’s clerical errors submitted prior to the final determination. In the

Preamble, Commerce explained that “[p]rior to the deadline for submission of factual

information, the Department’s practice normally is to accept a respondent’s correction of an error

in its own data because the Department has time to review, analyze, and where applicable, verify

the corrected data.” 62 Fed. Reg. at 27,327. Even though it has not promulgated a regulation,

Commerce’s current practice is outlined in Colombian Flowers. Commerce explained that it

would accept corrections to a respondent’s clerical errors under the following six conditions:

(1) The error in question must be demonstrated to be a clerical error, not a
methodological error, an error in judgment, or a substantive error; (2) the Department
must be satisfied that the corrective documentation provided in support of the clerical
error allegation is reliable; (3) the respondent must have availed itself of the earliest
reasonable opportunity to correct the error; (4) the clerical error allegation, and any
corrective documentation, must be submitted to the Department no later than the due date
for the respondent’s administrative case brief; (5) the clerical error must not entail a
substantial revision of the response; and (6) the respondent’s corrective documentation
must not contradict information previously determined to be accurate at verification.

Colombian Flowers, 61 Fed. Reg. at 42,834. This Court recognized this methodology in World

Finer Foods, Inc. v United States, No. 99-03-00138, 2000 WL 897752 (CIT June 26, 2000). In

this case, Commerce promptly corrected those clerical errors brought to its attention immediately

after the Preliminary Determination. See Decision Memo at Comment 1. Based on this

methodology, the Court finds it was Kanzen’s responsibility to ensure the accuracy of the data it
Consol. Court No. 01-00099 Page 34

submitted on August 15, 2000. Kanzen’s failure to meet its responsibility does not shift the

burden to Commerce. Therefore, Commerce’s decision not to reexamine Kanzen’s data to

determine when, how, and why Kanzen’s alleged error was committed was not an abuse of

discretion. Respondent simply did not avail itself of a system specifically designed to remedy

the issue in this case.

The parties’ arguments regarding the obviousness of the alleged errors in this case are

misplaced. After NTN Bearing, Commerce has shifted its focus from obviousness and the other

factors of the three-pronged test to the six factors outlined in Colombian Flowers.9 It was in

response to the CAFC’s ruling that Commerce decided to reevaluate its methodology for

correcting a respondent’s clerical errors and developed the six factor approach outlined in

Colombian Flowers. See Preamble, 62 Fed. Reg. at 27,327.

The Court recognizes the tension between finality and correct result raised by the issues

in this case. See NTN Bearing, 74 F.3d at 1208. Unlike the situation in NTN Bearing and World

Finer Foods, however, Kanzen did not raise this issue until after the Final Determination was

issued. In World Finer Foods, respondent had attempted to make the correction from the time of

the publication of the preliminary results. World Finer Foods, 2000 WL 897752, at *9.

Similarly, in NTN Bearing, respondent had informed Commerce of the alleged errors shortly

after the preliminary determination. Thus, in both cases the courts found that at the time

respondents requested the correction, the tension between finality and correctness simply did not

exist. See NTN Bearing, 74 F.3d at 1208; World Finer Foods, 2000 WL 897752, at *9. Kanzen

9
The CAFC held that “while it may be a reasonable exercise of ITA’s discretion to restrict the correction of its own
clerical errors to those obvious from the record, the same rule applied to a respondent’s errors becomes arbitrary.”
NTN Bearing, 74 F.3d at 1208. (emphasis added).
Consol. Court No. 01-00099 Page 35

had more than enough time to check its data between the date of submission and the issuance of

the Final Determination.

The following examples demonstrate that Kanzen’s claim that its ministerial error

correction request would not require Commerce to conduct any further factual analysis in order

to correct the ministerial errors is simply incorrect. Commerce even examined one of the

particular sales that Kanzen claims included the alleged error during the sales verification. In

respect to that sale Commerce noted “[r]egarding the pay date, which had been reported as

2/1/00, Kanzen did not know why this date was included in the data set.” Sales Verification

Report at 23. Commerce then “confirmed that there were no transactions on that day with any of

Kanzen’s banks which pertained to a POI sale of subject merchandise.” Id. Kanzen suggests

that the data conversion error resulted in the incorrect 02/11/00 payment date being reported.

(Kanzen’s 56.2 Br. at 5, n. 8.) However, that Commerce later found that a reported payment date

was erroneous at verification does not explain why the conversion from Excel to SAS would

have spontaneously created a payment date that previously did not exist. Also, the credit

expense of “42.00” was reported for sales with different payment dates, not just the February 11,

2000 payment date.

Additionally, and perhaps most significant is the fact that Kanzen did not submit its

Microsoft Excel spreadsheet containing the original credit expense data as part of its August 15,

2000 submission. Therefore, Commerce would necessarily have to make some factual inquiries

to determine what data was originally submitted by Kanzen. Commerce could not simply apply

a new programming methodology without investigating the original data before and after the

conversion. Kanzen should have been alerted to potential errors and investigated its data
Consol. Court No. 01-00099 Page 36

submission after its exchange with Commerce during verification. Procedures exist allowing

respondents to correct submitted data. Kanzen’s failure to follow those procedures in this case is

fatal to its position.
Consol. Court No. 01-00099 Page 37

CONCLUSION

For the reasons stated above, the Court finds Commerce’s Final Determination is

supported by substantial evidence and is otherwise in accordance with law. Defendant-

Intervenors’ renewed motion to supplement the administrative record is denied. Furthermore,

Plaintiffs’ and Defendant-Intervenors’ respective motions for judgment upon the agency record

are denied. Defendant-Intervenors’ application for oral argument is denied.

______________________________
Gregory W. Carman,
Chief Judge

Dated: March 11, 2002
New York, New York
 ERRATUM

Alloy Piping Products, Inc., et al. v. United States, Consol. Court No. 01-00099, Slip-Op. 02-27,
Dated March 11, 2002.

On Page 1 in the case caption, the party “TAYLOR GORGE STAINLESS, INC.” should read
“TAYLOR FORGE STAINLESS, INC.”

March 18, 2002