World Finer Foods, Inc. v. United States

Slip Op. 00-72

UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________________
WORLD FINER FOODS, INC., et al. )
)
Plaintiff, )
)
v. )
) Consol. Court No.
THE UNITED STATES ) 99-03-00138
)
Defendant, )
)
and ) PUBLIC VERSION
)
BORDEN, INC., NEW WORLD PASTA CO., )
AND GOOCH FOODS, INC., )
)
Defendant-Intervenors. )
_____________________________________ )

[ITA determination remanded.]

Dated: June 26, 2000

Akin, Gump, Strauss, Hauer & Feld, L.L.P. (Spencer S.
Griffith, Patrick F. J. Macrory and Thomas J. McCarthy) for
plaintiff World Finer Foods, Inc.

O’Melveny & Myers L.L.P. (Peggy A. Clarke and Gary N. Horlick)
attorneys for plaintiff Barilla Alimentare, S.p.A.

Barnes, Richardson & Colburn (Michael J. Chessler and Matthew
T. McGrath) for plaintiff La Molisana Industrie Alimentari,
S.p.A.

David W. Ogden, Acting Assistant Attorney General, David M.
Cohen, Director, Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice (Erin E.
Powell), Patrick V. Gallagher, Jr., Senior Attorney, Office of
the Chief Counsel for Import Administration, United States
Department of Commerce, of counsel, for defendant.

Collier, Shannon, Rill & Scott (Paul Rosenthal and David
Smith) for defendant-intervenors Borden, Inc., New World
Pasta, Co. and Gooch Foods, Inc.
CONSOL. CT. NO. 99-03-00138 PAGE 2

Opinion

RESTANI, Judge: This matter is before the court on a

Motion for Judgment Upon the Agency Record, pursuant to USCIT

Rule 56.2, brought by plaintiffs World Finer Foods, Inc.

(“Finer Foods”), Barilla Alimentare, S.p.A. (“Barilla”) and La

Molisana Industrie Alimentari, S.p.A. (“La Molisana”).

Under review are the results of the U.S. Department of

Commerce’s (“Commerce”) first administrative review of the

antidumping duty order in Certain Pasta from Italy, 64 Fed.

Reg. 6615 (Dep’t Commerce 1999) (notice of final results and

partial rescission of antidumping duty admin. rev.)

[hereinafter “Final Results”]. It covers the period from

January 19, 1996 through June 30, 1997. Final Results, 64

Fed. Reg. at 6,615.

Finer Foods contests Commerce’s application of total

adverse facts available under 19 U.S.C. § 1677e (1994). Both

Finer Foods and Barilla challenge whether the total adverse

facts available rate selected by Commerce is properly

corroborated. Finally, La Molisana protests Commerce’s

refusal to accept corrected clerical information as

ministerial correction.

Jurisdiction and Standard of Review

The court has jurisdiction pursuant to 28 U.S.C. §
CONSOL. CT. NO. 99-03-00138 PAGE 3

1581(c) (1994). In reviewing Commerce’s determination in

antidumping investigations, the court will hold unlawful those

agency determinations which are unsupported by substantial

evidence on the record, or otherwise not in accordance with

law. 19 U.S.C. § 1515a(b)(1)(B) (1994).

I. Application of Total Adverse Facts Available to Arrighi

Background

Arrighi S.p.A. Industrie Alimentari (“Arrighi”), an

Italian pasta manufacturer, was a supplier of Finer Foods at

the time of the original antidumping investigation. Letter

from Finer Foods to Commerce (Mar. 10, 1998), at 1, C.R. Doc.

38, Finer Foods’ App., Tab 4, at 1. Arrighi received a

partial facts available margin of 21.34% in the original

antidumping investigation, which effectively precluded it from

exporting to the United States. Letter from Finer Foods to

Commerce (Oct. 20, 1997), at 7, P.R. Doc. 67, Finer Foods’

App., Tab 3, at 7. Arrighi stopped exporting pasta to the

United States in May, 1997.1 Commerce’s Memorandum to File

(Aug. 8, 1997), at 1, P.R. Doc. 10, Finer Foods’ App., Tab 1,

at 1. Arrighi advised Commerce that it had ceased exporting

1
Finer Foods continued to import pasta from Arrighi
while it wound down its purchases of Arrighi pasta after the
high cash deposit rate was imposed. It is the duties due on
the last entries from Arrighi that give rise to this action.
CONSOL. CT. NO. 99-03-00138 PAGE 4

to the United States and the brand name pasta it previously

exported to the United States was now being produced and

exported by another Italian company. Id.

Nevertheless, Commerce sent Arrighi a questionnaire and

requested that Arrighi respond and cooperate with regard to

the administrative review. Letter from Commerce to Arrighi

(Sept. 4, 1997), at 1, P.R. Doc. 18, Finer Foods’ App., Tab 2,

at 1. Commerce stated that it would “attempt to accommodate

any difficulties that [Arrighi] encounter[ed] in answering

this questionnaire,” and asked Arrighi to contact the official

in charge if there were any questions. Id. at 2, Finer Foods’

App., Tab 2, at 2.

Arrighi responded to Commerce and explained in further

detail that its financial situation had deteriorated

dramatically due to the antidumping duty rate that Commerce

imposed in the original investigation and that Arrighi had to

devote its limited resources to developing alternative markets

outside of the United States. Letter from Finer Foods to

Commerce (Oct. 20, 1997), at 6-9, Finer Foods’ App., Tab 3, at

6-9. Arrighi could not spare the personnel required to answer

Commerce’s questionnaire even though Finer Foods had offered

to pay all the legal and experts’ fees for Arrighi to respond

to the questionnaire. Id. at 8, Finer Foods’ App., Tab 3, at
CONSOL. CT. NO. 99-03-00138 PAGE 5

8. Arrighi did offer to “supply limited information if the

Department felt that might be worthwhile or helpful” in its

review. Id. at 9, Finer Foods’ App., Tab 3, at 9. Commerce

never responded to this letter.

Finer Foods submitted to Commerce all the information in

its possession regarding purchases from Arrighi. Letter from

Finer Foods to Commerce (Mar. 10, 1998), at 1-7, Finer Foods’

App., Tab 4, at 1-7. Commerce also did not respond to this

letter.

Commerce determined in the Final Results that Arrighi

failed to cooperate by not responding to the antidumping

questionnaire and did not act to the best of its ability to

comply with Commerce’s request for information. Final

Results, 64 Fed. Reg. at 6616. Commerce assigned an adverse

facts available margin of 71.49%, the highest margin from the

petition. Id. Finer Foods challenges the use of adverse

facts available against Arrighi.

Discussion

Finer Foods objects to the use of adverse facts available

where it has made every effort to cooperate; it has urged

Arrighi to cooperate; Arrighi offered limited cooperation and

Commerce never responded to these offers of cooperation. The

court agrees.
CONSOL. CT. NO. 99-03-00138 PAGE 6

Commerce correctly notes that it may resort to facts

available if Arrighi failed “to provide [the requested]

information by the deadlines for submission . . . or in the

form and manner requested.” 19 U.S.C. § 1677e(a)(2)(B).

Before Commerce can resort to adverse facts available,

however, Commerce is required to comply with 19 U.S.C. §

1677m. Id. Commerce did not properly comply with the

requirements of subsections (c) and (e) of § 1677m.

In Borden, Inc. v. United States, this court made clear

that the new statutory scheme, 19 U.S.C. § 1677m, is designed

to prevent the unrestrained use of facts available as to a

firm that makes its best efforts to cooperate with Commerce.

4 F. Supp.2d 1221, 1245 (Ct. Int’l Trade 1998), aff’d sub nom.

F. LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United

States, No. 99-1318, 2000 U.S. App. Lexis 14148 (Fed Cir. June

16, 2000). This section was enacted as a part of the Uruguay

Rounds Agreement Act (“URAA”), Pub. L. 103-465, § 231, to

implement portions of Annex II to the Antidumping Agreement,

which provides, in part, that information which “may not be

ideal” should not be disregarded if the party “has acted to

the best of its ability.” Annex II of the Agreement on

Implementation of Article VI of GATT at ¶ 5, reprinted in,

U.S. Trade Representative, Final Texts of the GATT Uruguay
CONSOL. CT. NO. 99-03-00138 PAGE 7

Round Agreements 168 (1994) [hereinafter “Annex II”].

The key provisions of 19 U.S.C. § 1677m for purposes of

this case are subsection (c), regarding “difficulties in

meeting requirements,” and subsection (e) regarding the “use

of certain information.” Subsection (c) requires a party to

promptly notify Commerce as to why it cannot comply with the

requirements of the questionnaire. 19 U.S.C. § 1677m(c)(1)

(1994).2 Arrighi did that. Section 1677m(c)(1) also requires

Arrighi to offer an alternative form in which it could submit

the information. Id. Arrighi did not describe exactly what

form of information it could provide; but it did offer to

supply any “limited information that Commerce felt might be

2 19 U.S.C. § 1677m(c) provides in relevant part:
(c) Difficulties in meeting requirements
(1) Notification by interested party
If an interested party, promptly . . . notifies the
administering authority . . . that such party is unable to
submit the information requested in the requested form and
manner, together with a full explanation and suggested
alternative forms in which such party is able to submit the
information, the administering authority . . . shall consider
the ability of the interested party to submit the information
. . . and may modify such requirements to the extent necessary
to avoid imposing an unreasonable burden on that party.
(2) Assistance to interested parties
The administering authority . . . shall take into
account any difficulties experienced by interested parties,
particularly small companies, in supplying information
requested by the administering authority or the Commission in
connection with investigations and reviews under this
subtitle, and shall provide to such interested parties any
assistance that is practicable in supplying such information.
19 U.S.C. § 1677m(c) (emphasis added).
CONSOL. CT. NO. 99-03-00138 PAGE 8

worthwhile or helpful.” Letter from Finer Foods to Commerce

(Oct. 20, 1997), at 9, Finer Foods’ App., Tab 3, at 9. At

that point, Commerce should have offered Arrighi some

guidance. It did not do so.

Because Arrighi offered to submit what it could, the

burden shifted to Commerce to consider Arrighi’s ability to

respond with some specificity and to modify its requirements,

if necessary. 19 U.S.C. § 1677m(c)(2). Instead, Commerce

focused on Arrighi’s failure to provide a specific counter-

proposal and questioned the veracity of Arrighi’s certified

statement that it did not have the financial resources or

personnel to provide the information Commerce required. Final

Results, 64 Fed. Reg. at 6616. Commerce discounted Arrighi’s

explanation that it had lost 30-40% of its total sales after

Commerce imposed a 21.34% dumping margin in the original

antidumping investigation; that it had laid off a significant

number of employees; and that it no longer had the personnel

or resources to compile the information Commerce sought even

if Finer Foods were to pay for the legal and expert fees.

Letter from Finer Foods to Commerce (Oct. 20, 1997), at 7-8,

Finer Foods’ App., Tab 3, at 7-8. Commerce called this

“merely . . . a business decision not to allocate resources to

this task.” Final Results, 64 Fed. Reg. at 6616.
CONSOL. CT. NO. 99-03-00138 PAGE 9

Finer Foods’ points out that Arrighi’s situation is

comparable to Flores Estrella’s situation in Certain Fresh Cut

Flower from Colombia, 59 Fed. Reg. 15,159, 15,174 (Dep’t

Commerce 1994) (final results). At the time Flores Estrella

received Commerce’s questionnaire, the company had laid off 40

workers and was facing the possibility of liquidation. Id. at

15,173-74. Commerce was not able to “conclude that Flores

Estrella was incapable of responding to the questionnaire.

Nonetheless, [Commerce] recognize[d] that the company was

subject to financial and personnel constraints at that time.”

Id. at 15,174. Additionally, Flores Estrella, like Arrighi,

made a similar offer to provide partial information. Id.

Commerce never responded to Flores Estrella’s offer to

cooperate. Id. Commerce decided not to apply the first tier

BIA rate to Flores Estrella based on Flores Estrella’s offer

to cooperate and Commerce’s own failure to follow up on this

offer. Id.

Commerce’s complete disregard of the information provided

by Arrighi, as well as its failure to respond in any way to

Arrighi’s offer of limited assistance similarly precludes

Commerce from imposing punitive adverse facts available.

Although Arrighi had not yet suggested a specific alternative

form to submit the information as required by 19 U.S.C. §
CONSOL. CT. NO. 99-03-00138 PAGE 10

1677m(c)(1), this was not a situation where the information

was readily available in some other form. Commerce has an

obligation to assist interested parties experiencing

difficulties and “shall provide to such interested parties any

assistance that is practicable in supplying such information.”

19 U.S.C. § 1677m(c)(2) (emphasis added). Commerce did not

suggest any way to avoid a totally adverse margin and provided

no assistance to Arrighi even though Arrighi offered to

cooperate in providing a simpler form of the information

required. See also Allied Signal Aerospace Co. v. United

States, 996 F.2d 1185, 1192 (Fed. Cir. 1993)(holding

impermissible application of first-tier BIA (adverse

inference) to company that offered to cooperate but Commerce

never responded to offer of cooperation).

Commerce has not followed the appropriate steps to reach

an adverse inference from the facts available.3 Commerce

3 The court has repeatedly brought to Commerce’s
attention the new statutory scheme restricting the application
of an adverse inference pursuant to 19 U.S.C. § 1677e(c). See
F. LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United
States, No. 99-1318, 2000 U.S. App. Lexis 14148, *13 (Fed.
Cir. June 16, 2000) (“Commerce’s discretion in these matters .
. . is not unbounded.”) [hereinafter “De Cecco”]. Commerce
is required to make subtler judgments supported by substantial
evidence in the agency record and must pay attention to the
burden allocation in §1677m(c). See e.g., Ferro Union, Inc.
v. United States, 44 F. Supp.2d 1310, 1329 (Ct. Int’l Trade
1999).
CONSOL. CT. NO. 99-03-00138 PAGE 11

might have gotten some information from Arrighi if it had

responded to Arrighi’s offer of cooperation. Only at that

point could it decide if the offer was genuine, if the

information was sufficient, and whether best efforts had been

made or not. Commerce’s response to Arrighi was crucial in

this case. Arrighi, which had left the market, did not have

the normal incentives to cooperate, leaving the importer,

Finer Foods, in a difficult position, as it alone would bear

the full impact of increased duties.4 In such a situation, it

is imperative that Commerce respond to overtures of

cooperation from the exporter/producer.5

4 As the producer, Arrighi normally would try and obtain
the lowest dumping margin possible in an effort to be able to
sell at a competitive price. In this case, though, Arrighi
had received a dumping margin in the prior administrative
review that was so high that it precluded further exports to
the U.S. market. See Certain Pasta from Italy, 61 Fed. Reg.
38,547, 38,548 (Dep’t Commerce 1996) (setting Arrighi’s final
weighted average dumping margin at 21.34%); and Letter from
Finer Foods to Commerce (Oct. 20, 1997), at 6-9, Finer Foods’
App., Tab 3, at 6-9. Thus, Arrighi no longer had the usual
“incentive” to cooperate with either Finer Foods or Commerce.
As the importer of record, Finer Foods would be responsible
for paying the dumping duty and bear the onus of any perceived
failure of Arrighi to cooperate. See 19 C.F.R. § 141.1(b)
(1998) (“[L]iability for duties . . . constitutes personal
debt due from importer to the United States.”); see also 19
C.F.R. § 351.402(f) (2000).
5 Even where Commerce may use adverse facts available,
obtaining as much information as possible might provide a
better basis for corroborating a substitute margin.
Nonetheless, the court does not hold that every general
(continued...)
CONSOL. CT. NO. 99-03-00138 PAGE 12

The court also disagrees with Commerce’s refusal to

consider the information submitted by Finer Foods. The

information meets all of the criteria set forth in 19 U.S.C. §

1677m(e) for the use of information.6 Commerce did not reject

Finer Foods’ submissions based on any of the five statutory

criteria but stated generally that “it was insufficient for

purposes of calculating a dumping margin for Arrighi in

accordance with the statute.” Final Results, 64 Fed. Reg. at

6620. Commerce is required to consider the information

submitted even though it “does not meet all the applicable

5
(...continued)
overture of cooperation warrants a response from Commerce.
The court’s ruling is based on the particular situation
affecting Arrighi and its importers.
6 Section 1677m(e) provides in relevant part:
In reaching a determination . . . the administering
authority . . . shall not decline to consider information that
is submitted by an interested party and is necessary to the
determination but does not meet all the applicable
requirements established by the administering authority . . .
if –
(1) the information is submitted by the deadline
established for submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot
serve as a reliable basis for reaching the applicable
determination,
(4) the interested party has demonstrated that it has
acted to the best of its ability in providing the information
and meeting the requirements established by the administering
authority . . . with respect to the information, and
(5) the information can be used without undue
difficulties.
19 U.S.C. § 1677m(e) (emphasis added).
CONSOL. CT. NO. 99-03-00138 PAGE 13

requirements established by the administrative authority.” 19

U.S.C. § 1677m(e). Thus, even though Commerce could not use

the information to determine the normal value, the information

that Finer Foods provided indicated that Arrighi likely would

not have received a high margin, and certainly not a margin as

high as the one selected by Commerce. See Letter from Finer

Foods to Commerce (Mar. 10, 1998), at 1-3, Finer Foods’ App.,

Tab 4, at 1-3. Commerce has not indicated that this

information, though limited, is unreliable for the narrow

purpose for which it was submitted.7 Commerce shall

reconsider the information provided by Finer Foods and

determine an appropriate facts available rate for Arrighi.8

II. Corroboration of Adverse Facts Available Rate

Background

Finer Foods and Barilla9 contest Commerce’s adoption of

the highest margin from the petition as the adverse facts

available rate. They claim its selection violates 19 U.S.C. §

7 []
8 The court understands that at this point a substitute
margin likely will be required, but it may not be the entirely
adverse margin selected by Commerce.
9 Barilla never responded to Commerce’s questionnaire.
Final Results, 64 Fed. Reg. at 6616. Barilla does not
challenge Commerce’s use of adverse facts available, instead
it limits its challenge to the corroboration of the adverse
facts available rate.
CONSOL. CT. NO. 99-03-00138 PAGE 14

1677e(c).10

To corroborate the petition margin, Commerce used

individual transaction margins from the original less than

fair value (“LTFV”) investigation. Commerce’s Memorandum to

File (Feb. 3, 1999), at 2, C.R. Doc. 120, Finer Foods’ App.,

Tab 6, at 2. Because a few of these specific transaction

margins exceeded 71.49% (the highest petition margin),

Commerce determined that the highest petition rate was

corroborated. Id. at 2-3, Finer Foods’ App., Tab 6, at 2-3.

Commerce next compared the petition rate with specific

transaction margins calculated for fully cooperative

respondents in this administrative review and found that the

petition rate fell within the range of individual transaction

margins calculated. Final Results, 64 Fed. Reg. at 6,621.

Commerce concluded that the petition rates represented a

reasonable estimate of the level of dumping that occurred

during the period of review. Commerce’s Memorandum to File

(Feb. 3, 1999), at 3, Finer Foods’ App., Tab 6, at 3.

Commerce claims that the use of petitioners’ margin is

10 19 U.S.C. § 1677e(c) provides:
When the administering authority or the Commission relies on
secondary information rather than on information obtained in
the course of an investigation or review, the administering
authority or the Commission, as the case may be, shall, to the
extent practicable, corroborate that information from
independent sources that are reasonably at their disposal.
CONSOL. CT. NO. 99-03-00138 PAGE 15

corroborated by the individual transaction margins from the

LTFV investigation. Barilla and Finer Foods challenge this

finding.

The court’s determination in the preceding section

prevents application of the petition margin to Arrighi. The

issue is outstanding as to Barilla.

Discussion

Pursuant to 19 U.S.C. § 1677e(c), Commerce must

corroborate secondary information it relies on “to the extent

practicable” from independent sources reasonably at its

disposal. Both the Antidumping Agreement of GATT 1994 and the

URAA indicate that secondary information is to be

corroborated. The Antidumping Agreement requires Contracting

Parties use secondary sources with “special circumspection”

and to check secondary information from other “independent

sources,” including published price lists, official import

statistics, customs returns or information from other

interested parties. Annex II at ¶ 7, reprinted in U.S. Trade

Representative, Final Texts of the GATT Uruguay Round

Agreements 168-69 (1994). The Statement of Administrative

Action (“SAA”) further clarifies that “secondary information

may not be entirely reliable” and that “[c]orroborate means

that the agencies will satisfy themselves that the secondary
CONSOL. CT. NO. 99-03-00138 PAGE 16

information to be used has probative value.” SAA accompanying

the URAA, H.R. Rep. No. 103-826(I) at 870, reprinted in 1994

U.S.S.C.A.N. at 4199. The SAA specifically singles out the

information contained in the petition as an example of

unreliable information because it is based upon unverified

allegations. Id.

In keeping with these guidelines, the court instructed

Commerce in Ferro Union that: 1) Commerce cannot apply a

margin that has been discredited; and 2) Commerce must select

a margin which bears a rational relationship to the matter to

which it is to be applied. 44 F. Supp.2d at 1334-35

(citations omitted). Barilla correctly notes that the

petitioners’ margins were not corroborated and had been

previously discredited in this court’s review of the original

antidumping duty order. De Cecco, No. 99-1318, 2000 U.S. App.

Lexis 14148 at *15. The petitioners’ margin, considered

inherently suspect by the SAA, is further suspect in this

review because the calculated rates for all parties

participating in this review have fallen even further.

Compare Certain Pasta from Italy, 61 Fed. Reg. at 38,548

(final LTFV investigation margins ranged from 0.67% to

21.34%), with Final Results, 64 Fed. Reg. at 6,630-31 (final

admin. rev. margins ranged from 0.32% to 12.26%). A bare
CONSOL. CT. NO. 99-03-00138 PAGE 17

possibility does exist that Barilla’s overall margin may be in

the very high range selected by Commerce because that

possibility cannot be eliminated without verifying its own

data. The improbability that the hypothesis is true, however,

is demonstrated by the low margins of all respondents, and the

trend of those margins.

In corroborating the petitioners’ margin, Commerce is

under an obligation to use data that bears a rational

relationship to the matter to which it is applied. De Cecco,

No. 99-1318, 2000 U.S. App. Lexis 14148 at *19 (“By requiring

corroboration of adverse inference rates, Congress clearly

intended that such rates should be reasonable and have some

basis in reality.”); see also Ferro Union, 44 F. Supp.2d at

1334. Here, Commerce used individual transactions from other

respondents without explaining: (1) whether these transactions

represented a significant portion of the transactions at

issue; and (2) how these transactions related to a rational

dumping duty margin for Barilla. Commerce nevertheless

concluded from these random, apparently aberrant transactions

of other respondents that exceeded 71.49%11 that the margin

11 To corroborate the petition rate, Commerce examined
the transaction margins from five respondents that fully
cooperated in the original LTFV investigation. Commerce’s
Memorandum to File (Feb. 3, 1999), at 2, Finer Foods’ App.,
(continued...)
CONSOL. CT. NO. 99-03-00138 PAGE 18

alleged in the petition is corroborated. Final Results, 64

Fed. Reg. at 6,620-21. The original LTFV investigation in

this matter involved an extremely large sales database from a

number of respondents. It is highly unlikely that the

petition margin, which was so far from the calculated margins

of both the original investigation and this administrative

review, had any validity at all. Without evidence to support

Commerce’s use of the individual transaction margins as

corroboration, the court cannot uphold the use of these

apparently aberrant transactions as corroboration for

petitioners’ margin. Therefore, Commerce shall reconsider the

11
(...continued)
Tab 6, at 2. From those transactions, Commerce focused on the
25 highest calculated transaction margins of only [] of the
five respondents to justify the use of the petitioners’
margin. Id. [] Id. at 3, Finer Foods’ App., Tab 6, at 3.
Commerce used these transactions to determine that “the
petition rates represent a reasonable estimate of a level of
dumping that occurred during the POI.” Id. The original LTFV
investigation, though, covered well over a million individual
observations. See e.g., Letter from De Cecco to Commerce
(Feb. 15, 1996), at 4, P.R. Doc. 689, De Cecco’s App. in Ct.
No. 96-08-01970, Tab 31, at 4 (reporting over 900,000
observations to Commerce); Delverde’s Section B and C
Response, App. B-2 (Sept. 14, 1995) (reporting 283,977
observations to Commerce), at 37, P.R. Doc. 275, De Cecco’s
App. in Ct. No. 96-08-01970, Tab 38A, at 1; La Molisana’s
Section B Response, App. B-1 (Sept. 13, 1995), C.R. Doc. 63,
De Cecco’s App. in Ct. No. 96-08-01970, Tab 57, at 1
(reporting [] observations to Commerce). Commerce’s use of a
few arbitrarily selected transactions, where such an extensive
database of information exists to test the petition margin,
does not constitute sufficient corroboration.
CONSOL. CT. NO. 99-03-00138 PAGE 19

adverse facts available margin with respect to Barilla.

Commerce shall determine a margin that, although adverse,

bears some rational relationship to the current level of

dumping in the industry and shall provide proper corroboration

explaining the probative value of the data used in determining

the adverse facts available margin.

III. Distinguishing New Information From Clerical Or
Ministerial Error Correction

Background

La Molisana’s original submission to Commerce correctly

indicated in the narrative that it was the importer of record

on most sales. Questionnaire Response to Sections A-D (Nov.

10, 1997), at C-43, C.R. Doc. 11, La Molisana’s App., Tab A-1,

at 2. The computer tape, though, originally recorded Company

A,12 as the importer of record for all sales in the U.S.

market. Corrections to La Molisana’s Questionnaire Response

(Dec. 15, 1997), at 3, C.R. Doc. 20, La Molisana’s App., Tab

A-2, at 3. La Molisana submitted a new U.S. market sales tape

indicating that La Molisana was the importer of record for all

U.S. market sales. Id. at 2, La Molisana’s App., Tab A-2, at

2.

12
Company A is []. Corrections to La Molisana’s
Questionnaire Response (Dec. 15, 1997), at 3, C.R. Doc. 20, La
Molisana’s App., Tab A-2, at 3.
CONSOL. CT. NO. 99-03-00138 PAGE 20

On March 23, 1998, La Molisana again attempted to correct

the confusion surrounding the importer of record. La

Molisana’s Supplemental Questionnaire Response (Mar. 23,

1998), at C-11, C.R. Doc. 45, La Molisana’s App., Tab A-3, at

2. La Molisana’s narrative correctly explained that La

Molisana was the importer of record for certain entries but

Company A was the importer of record for all entries

designated “FOB, Port of Naples”. Id. The U.S. market sales

tape, though, remained uncorrected and designated La Molisana

as importer of record for all U.S. sales.

La Molisana did not realize this inconsistency existed

until after the Preliminary Result was published on August 7,

1998.13 La Molisana explained that the correction would not

affect Commerce’s margin calculation.14 Letter from La

Molisana to Commerce (Oct. 27, 1998), at 2, La Molisana’s

App., Tab. B-1, at 2.

Commerce rejected La Molisana’s October 27th letter as an

untimely submission of new factual information. Letter from

Commerce to La Molisana (Dec. 2, 1998), at 1-2, La Molisana’s

App., Tab B-2, at 1-2. Pursuant to 19 C.F.R. §351.301(b)(2)

13 []
14 []
CONSOL. CT. NO. 99-03-00138 PAGE 21

(1998),15 the deadline for submitting new factual information

was January 15, 1998 and Commerce argues that La Molisana’s

submission was more than 10 months late. Id. Commerce also

rejected La Molisana’s argument that the corrections should be

accepted as clerical error because they were untimely and

unreliable.16 Commerce published the Final Results without

correcting the alleged error. See Final Results, 64 Fed. Reg.

at 6,615.

La Molisana next submitted a timely request for

15 Section 351.301(b)(2) provides, in pertinent part that
a submission of factual information is due no later than 140
days after the last day of the anniversary month.
16 Commerce accepts clerical corrections if all the
following conditions are satisfied:
(1) the error in question must be demonstrated to be a
clerical error, and not a methodological error, an error in
judgment, or a substantive error;
(2) Commerce 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 Commerce 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 responses;
(6) the respondent’s corrective documentation must not
contradict information previously determined to be accurate at
verification.
Certain Fresh Cut Flowers from Colombia, 61 Fed. Reg. 42,833,
42,834 (Dep’t Commerce 1996). The Department determined that
elements (2) and (4) are not satisfied. Letter from Commerce
to La Molisana (Dec. 2, 1998), at 1-2, La Molisana’s App., Tab
B-2, at 1-2.
CONSOL. CT. NO. 99-03-00138 PAGE 22

correction of ministerial error after the final results are

published. Letter from La Molisana to Commerce (Feb. 17,

1999), at 1, C.R. Doc. 122, La Molisana’s App., Tab A-6, at 1.

Commerce again rejected this request, stating that the

requested correction consisted of new information. Memorandum

from Commerce to Richard Moreland (Mar. 11, 1999), at 2, C.R.

Doc. 125, La Molisana’s App., Tab A-7, at 2. La Molisana now

appeals to this court for relief.

Discussion

Factual information includes “information in

questionnaire responses, publicly available information to

value factors in nonmarket economy cases, allegations

concerning market viability . . . and upstream subsidy

allegations.” 19 C.F.R. § 351.301(a)(1999). Ministerial

error, on the other hand, is “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.” 19 C.F.R. § 351.224(f)

(1999) (emphasis added).

In this case, the U.S. market sales tape in the original

questionnaire response contained errors due to an inaccurate

supply of information. Commerce characterizes La Molisana’s
CONSOL. CT. NO. 99-03-00138 PAGE 23

corrections as new factual information. La Molisana, in

contrast, characterizes the information as clerical errors due

to inaccurate copying. La Molisana argues that Commerce has

abused its discretion by refusing to allow this clerical or

ministerial error correction. The court agrees.

Where the line is difficult to draw between permissible

ministerial or clerical error correction and impermissible

factual or methodological changes, based upon Commerce’s past

practice, it should have classified the error here as clerical

or ministerial error. First, Commerce acknowledged the

“general inconsistency with respect to the database field in

question.” Letter from Commerce to La Molisana (Dec. 2,

1998), at 2, La Molisana’s App., Tab B-2, at 2. Therefore,

when La Molisana offered to correct its incorrect computer

tape to match the narrative that had been submitted to address

this inconsistency, it simply sought to rectify an error that

is apparent from the agency record.

Second, Commerce’s refusal to accept the information

because it is “unreliable” is unjustified. Ordinarily there

is no verification of submissions in an administrative review.

Therefore, there is no reason for Commerce to infer greater

reliability in the information initially submitted as opposed

to the information submitted for corrective purposes.
CONSOL. CT. NO. 99-03-00138 PAGE 24

Further, in this case the error was fully explained and La

Molisana offered corroboration that Company A was an importer

during the POR, though Company A was not specifically listed

as one of La Molisana’s importers. F. LLI De Cecco Di Filippo

Fara San Martino S.P.A. v. United States, No. 96-08-01930, Ex.

A (Ct. Int’l Trade Oct. 23, 1997) (listing Company A as one of

the importers during the improper provisional period).

Moreover, Commerce has offered no evidence that indicates that

the information received was unreliable. Thus, Commerce has

not substantiated its finding that La Molisana’s corrected

information failed to meet the second criteria in its six-part

clerical error test, that the corrected information was

reliable.

La Molisana correctly notes that the facts of this case

are parallel to NTN Bearing Corp. v. United States, 74 F.3d

1204 (Fed. Cir. 1995). In NTN, the plaintiff mistakenly

included in its U.S. sales database four sales which were

actually sales to a Canadian customer for goods that never

entered the United States. See NTN,74 F.3d at 1208. Commerce

did not dispute that this error was clerical. Similarly, in

this case, La Molisana erroneously stated that it was the

importer of record for pasta it did not import. La Molisana,

like the NTN plaintiff, was fully cooperative in the course of
CONSOL. CT. NO. 99-03-00138 PAGE 25

the review and submitted the necessary and correct information

requested by Commerce, except that it failed to incorporate a

portion of this information in its tape. “[D]raconian

penalties are [in]appropriate for the making of clerical

errors” because they are mere inadvertencies, and “[w]hile the

parties must exercise care in their submissions, it is

unreasonable to require perfection.” Id. at 1208. Commerce’s

refusal to adopt the correction violates the notion that

dumping margins are to be determined “as accurately as

possible.” Id. (citing Rhone Poulenc, Inc. v. United States,

899 F.2d 1185, at 1191 (Fed. Cir. 1990)) (quotations omitted).

Moreover, as La Molisana has argued, making the

correction imposes little burden on Commerce. Commerce only

had to correct the specified lines in the assessment rate17

calculation program and then rerun it. Letter from La

Molisana to Commerce (Oct. 27, 1998), at 4-5, La Molisana’s

App., B-1, at 4-5. La Molisana has set forth the exact

17 La Molisana is asking Commerce to comply with the
methodology set forth in 19 C.F.R. § 351.212(b) (1999).
Commerce “normally will calculate an assessment rate for each
importer of subject merchandise covered by the review.
[Commerce] normally will calculate the assessment rate by
dividing the dumping margin found on the subject merchandise
examined by the entered value of such merchandise for normal
customs duty purposes. [Commerce] will instruct the Customs
Service to assess antidumping duties by applying the
assessment rate to the entered value of the merchandise.” 19
C.F.R. § 351.212(b).
CONSOL. CT. NO. 99-03-00138 PAGE 26

corrections to the computer program in its October 27, 1997

letter to Commerce. Id. It would “neither have required

beginning anew nor have delayed making the final

determinations.” NTN, 74 F.3d at 1208. Use of the mistakenly

submitted information would be punitive to La Molisana. Here,

a simple adjustment in the assessment program is all that was

required to serve the dumping duty’s “remedial” rather than

“punitive” purpose. See id. (citation omitted).

The court recognizes the tension between finality and

correct result. See NTN, 74 F.3d at 1208. La Molisana,

though, has been trying to make this same correction from the

time of the publication of the preliminary results. At the

time La Molisana requested the correction, the tension between

finality and correctness simply did not exist. See id. at

1208 (citation omitted). Further, as this matter is remanded

for other reasons, there appears to be no administrative

efficiency reason to perpetuate the error.

Commerce must re-calculate the assessment rate for La

Molisana.

Conclusion

For the foregoing reasons, the court remands this matter

to Commerce to: 1) determine an appropriate facts available

rate for Arrighi; 2) reconsider the adverse facts available
CONSOL. CT. NO. 99-03-00138 PAGE 27

margin with respect to Barilla and assess a dumping margin

that, while adverse, bears a rational relationship to the

probability of dumping; and 3) re-calculate the assessment

rate for La Molisana.18

Remand results are due within 45 days. Objections are

due 20 days thereafter, responses 11 days thereafter.

_______________________
Jane A. Restani
JUDGE

Dated: New York, New York

This 26th day of June, 2000.

18 Specifically, [].