Slip Op. 99-66
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
:
PEER BEARING COMPANY, :
:
Plaintiff, :
:
:
L & S BEARING COMPANY, :
:
Plaintiff-Intervenor, :
:
v. : Court No. 97-12-02123
:
UNITED STATES, :
:
Defendant, :
:
:
THE TIMKEN COMPANY, :
:
Defendant-Intervenor. :
:
Plaintiff Peer Bearing Company (“Peer”) moves pursuant to Rule
56.2 of the Rules of this Court for judgment on the agency record
challenging the final determination of the Department of Commerce,
International Trade Administration (“Commerce”), entitled Tapered
Roller Bearings and Parts Thereof, Finished and Unfinished, From
the People’s Republic of China; Final Results of Antidumping
Administrative Review, 62 Fed. Reg. 61,276 (Nov. 17, 1997).
Specifically, Peer alleges that Commerce made certain clerical
errors in its calculation of labor rates and in its selection of
factors of production data.
Held: Plaintiff’s motion for judgment on the agency record is
granted in part and denied in part. The case is remanded for
correction of clerical errors in Commerce’s calculations of labor
rates. Commerce is affirmed in all other respects.
[Plaintiff’s motion granted in part and denied in part. Case
remanded.]
Court No. 97-12-02123 Page 2
Dated: July 21, 1999
Arent Fox Kintner Plotkin & Kahn, PLLC (John M. Gurley,
Matthew J. McConkey and Jinhee K. Wilde) for plaintiff.
David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Michele D. Lynch); of counsel: Rina
Goldenberg, Attorney, Office of Chief Counsel for Import
Administration, U.S. Department of Commerce, for defendant.
Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr.
and Amy S. Dwyer) for defendant-intervenor.
Cohen Darnell & Cohen, PLLC (Mark A. Cohen) for plaintiff-
intervenor.
OPINION
TSOUCALAS, Senior Judge: This case involves the shipments of
tapered roller bearings (“TRBs”) and parts thereof, finished and
unfinished, from the People’s Republic of China (“PRC”).
On July 9, 1997, the Department of Commerce, International
Trade Administration (“Commerce”), published the preliminary
results of its administrative review covering TRBs from the PRC.
See Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, From the People’s Republic of China; Preliminary
Results of Antidumping Administrative Review and Partial
Termination of Administrative Review (“Preliminary Results”), 62
Fed. Reg. 36,764.
Court No. 97-12-02123 Page 3
Plaintiff1 Peer Bearing Company (“Peer”) moves pursuant to
Rule 56.2 of the Rules of this Court for judgment on the agency
record challenging Commerce’s final determination, entitled Tapered
Roller Bearings and Parts Thereof, Finished and Unfinished, From
the People’s Republic of China; Final Results of Antidumping
Administrative Review, (“Final Results”) 62 Fed. Reg. 61,276 (Nov.
17, 1997). Specifically, Peer alleges that Commerce made certain
clerical errors in its calculation and selection of labor rates and
factors of production data in the Final Results.2
Oral argument was held at the Court on February 26, 1999.
Discussion
This Court has jurisdiction in this case pursuant to 19 U.S.C.
§ 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).
The Court must uphold Commerce’s final determination unless it
is “unsupported by substantial evidence on the record, or otherwise
1
The Court granted L & S Bearing Company’s Motion to Intervene
on February 27, 1998. L & S Bearing Company did not file
additional papers.
2
The determination at issue covers the ninth period of review
from June 1, 1995 through May 31, 1996. Because Commerce initiated
this review after January 1, 1995, the applicable law in this case
is the antidumping code as amended by the Uruguay Round Agreements
Act, Pub. L. No. 103-465,108 Stat. 4809 (1994). See Torrington Co.
v. United States, 68 F.3d 1347, 1352 (Fed. Cir. 1995).
Court No. 97-12-02123 Page 4
not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B).
Substantial evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). “It is not within the Court’s domain either to
weigh the adequate quality or quantity of the evidence for
sufficiency or to reject a finding on grounds of a differing
interpretation of the record.” Timken Co. v. United States, 12 CIT
955, 962, 699 F. Supp. 300, 306 (1988), aff’d, 894 F.2d 385 (Fed.
Cir. 1990).
Ministerial Errors
1. Labor Rates
Because this case deals with bearings imported from the PRC,
a nonmarket economy, and because no other usable data was
available, Commerce calculated normal value (“NV”) based on factors
of production (“FOP”) pursuant to 19 U.S.C. § 1677b(c) (1994).
Peer challenges the labor rates used to calculate FOP for one
of its Chinese suppliers. In the Final Results, in calculating FOP
for NV, Commerce accidentally used an unskilled labor rate of 46.6
Rupees per hour and a skilled labor rate of 25.42 Rupees per hour
instead of the reverse.
Court No. 97-12-02123 Page 5
Commerce agrees that its inadvertent reversal of the skilled
and unskilled labor rates in its calculations constitutes a
ministerial error and requests a remand to correct it. Commerce’s
Mem. Opp’n to Mot. J. Agency R. at 2, 6. Timken does not object to
a remand. Timken’s Mem. Opp’n to Mot. J. Agency R. at 6.
The Court has often remanded in cases such as these to correct
ministerial errors of this type. See Federal-Mogul Corp. v.
United States, 18 CIT 1168, 1172, 872 F. Supp. 1011, 1014 (1994).
Consequently, the Court grants Commerce’s request for a remand to
correct the inadvertent reversal of the labor rates in its FOP
calculations and to adjust the dumping margins accordingly.
2. Factors of Production Data for Bearing Part
On May 13, 1997, Commerce sent a questionnaire to Peer and
Chin Jun Industrial Ltd. (“Chin Jun”), an affiliate of Peer’s,
requesting FOP data from all suppliers for the bearings under
review. Peer’s response, received on June 4, 1997, provided the
following information:
Peer/Chin Jun has attempted to obtain factors of
production FOP data for all of its suppliers. However,
Peer/Chin Jun does not control the Chinese suppliers and
must not be held responsible for their failure to supply
FOP data. However, many of Peer’s suppliers have
supplied similar information as respondents in this
review. To the extent factors data is available from
these respondents, then it should be used. We are
Court No. 97-12-02123 Page 6
incorporating by reference the factor information
supplied by various respondents. A listing of model and
the corresponding supplier is listed in Exhibit 1. . . .
[A]lso enclosed at Exhibit 1 is a list of models produced
by other factories which can be used as FOP for Chin
Jun/Peer models for which FOP data is not available.
See Response of Peer to Commerce’s Supplemental Questionnaire, Pub.
Doc. No. 205, Def.’s App., Ex. 4.
Attached to Peer’s submission was a letter from counsel for
other respondents who also used Peer/Chin Jun’s suppliers. Peer
authorized Commerce to use the cooperating respondents’ FOP
information to calculate the production costs for Peer/Chin Jun
during the relevant POR. Both parties used data from an agreed
upon factory supplier3 as an analog for Peer’s product model. See
Peer’s Comments Regarding Commerce’s Final Calculations, at 2
(Public Version), Peer’s Mem. Supp. Mot. J. Agency R., Attachment
1 (Nov. 25, 1997).
Peer submitted a chart to Commerce to identify which model
numbers already on file with Commerce correspond to Peer’s models
for purposes of determining FOP. Peer noted that FOP data for
models LM67010 and LM 67048 could be found in the set LM67048/10.
Peer’s listing also noted that the set contained FOP information
3
The name of the relevant supplier used by Peer and Commerce
for FOP data is part of the Confidential Record.
Court No. 97-12-02123 Page 7
for both the cup and the cone.4 Commerce used the factors for the
set to determine the FOP data of part LM67048. See id.
Peer argues that to determine the FOP for LM67048, Commerce
needed only to deduct the factors of LM67010 from the total factors
for the set LM67048/10. Commerce did not perform this additional
calculation, but instead used the FOP of the set as the FOP for
Peer’s single bearing part LM67048. See id.
Only after the publication of the Final Results, in a letter
dated November 25, 1997, did Peer inform Commerce for the first
time that Commerce erroneously used the FOP for the set LM67048/10
instead of the FOP for the individual parts LM67048 and LM67010.
See id. Commerce refused to consider this information after the
publication of the Final Results.
Peer now argues that its simple instruction on its submission
to Commerce indicating that a set contains FOP data for both a cup
and cone clearly indicated that Commerce had to subtract the FOP of
part LM 67010 from the set of LM67048/10 to obtain the FOP for part
LM67048. Essentially, Peer argues that Commerce misunderstood its
4
A TRB consists of a cone (inner race), cage (roller
retainers), and a roller in one assembled unit, and the cup (outer
race), which is the outer ring on which the rollers turn. See Peer
Bearing Co. v. United States, 22 CIT __, __, 12 F. Supp. 2d. 445,
454 n.8 (1998). In this case, LM67048 and LM670410 are the cup and
cone comprising the LM67048/10 set.
Court No. 97-12-02123 Page 8
instruction and misapplied the substitute FOP data in determining
NV.
Commerce responds that it used the information as submitted by
Peer in its chart of corresponding model matches and that its
deliberate use of this information is not a clerical error.
Commerce further contends that it used the same information in the
Preliminary Results and in the Final Results and that Peer is
barred at this time from raising this issue because Peer failed to
exhaust its administrative remedies as required by 28 U.S.C. §
2637. See Commerce’s Mem. Opp’n to Mot. J. Agency R. at 7-14.
As a preliminary matter, the Court is not convinced that
Commerce committed any error at all. At oral argument, Commerce
asserted that it will often use data for bearing sets to determine
the FOP for a bearing part in lieu of better information. If Peer
did not approve of Commerce’s use of the data it submitted, Peer
should have raised the issue to Commerce during the administrative
proceedings. Commerce could have then determined not to use the
information submitted by Peer at all, and to resort to best
information available. The Court cannot simply bypass this process
and remand for Commerce to use a particular value for FOP when
Commerce was not given the opportunity to expound and justify its
reasoning for using the FOP of an entire set in its calculations.
Court No. 97-12-02123 Page 9
Further, a “ministerial error” includes clerical errors
resulting from inaccurate copying, duplication, or the like, and
any other type of unintentional error which the administering
authority considers ministerial. 19 U.S.C. § 1675(h)(1994); 19
C.F.R. § 351.224(f) (1998). Peer presents substantive arguments
for an alternative method of interpreting the data it submitted.
The Court’s consideration of Peer’s arguments at this late juncture
is outside the scope of permissible corrections of ministerial
errors. See Kerr-McGee Chem. Corp. v. United States, 21 CIT __,
__, 955 F. Supp. 1466, 1475 (1997) (holding that plaintiff’s
submissions after the final determination contesting selection of
surrogate values do not identify clerical or ministerial errors,
but rather contain new information and therefore cannot be included
in the record or considered by the Court).
Moreover, the allegation of faulty judgment inherently falls
outside the purview of a ministerial error. See NTN Bearing Corp.
v. United States, 74 F.3d 1204, 1208 (Fed. Cir. 1995)(“Clerical
errors are by their nature not errors in judgment but merely
inadvertencies.”); see also 19 C.F.R. § 351.224(f) (defining
ministerial error). Commerce’s alleged inability to understand
Peer’s directions would constitute an error in its “judgment.” If
the use of the FOP of a set was an error in Commerce’s
Court No. 97-12-02123 Page 10
interpretation of Peer’s poorly drafted instructions, this would be
an interpretative error, not an error in “arithmetic function,”
“clerical error resulting from inaccurate copying” or an
“unintentional error.” See 19 C.F.R. § 353.224(f). Peer is
therefore not challenging a calculation which could be classified
as a ministerial error. Further, Peer did not raise the error at
the earliest reasonable opportunity. Under these circumstances,
the Court will not order a remand for the correction of these
alleged errors.
Notably, Commerce has broad discretion to determine what
constitutes a ministerial error. See Cemex, S.A. v. United States,
19 CIT 587, 593 (1995) (“Commerce is given fairly broad discretion
to determine which types of unintentional error to regard as
ministerial.”). The Court deems it significant that Commerce
denies committing any error in this case. However, even if there
were a clerical error, Peer is time-barred from raising it now.
“The exhaustion doctrine reflects a respect for values of
judicial economy and administrative autonomy.” Mitsubishi Heavy
Indus., Ltd. v. United States, 22 CIT __,__, 15 F. Supp. 2d 807,
820 n.6 (1998) (internal quotations omitted)(citing Al Tech
Specialty Steel Corp. v. United States, 11 CIT 372, 377, 661 F.
Supp. 1206, 1210 (1987)). Judicial economy, fairness to the
Court No. 97-12-02123 Page 11
parties and the need to fulfill Congress’ intent of prompt
resolution of these trade matters requires that errors of
methodology, data selection and calculation be raised at the
outset, unless some extraordinary factor supports relief at a later
date. See IPSCO, Inc. v. United States, 965 F.2d 1056, 1062 (Fed.
Cir. 1992). There are no such extraordinary factors here. See,
e.g., Peer Bearing, 22 CIT at __, 12 F. Supp. 2d at 452-53 (finding
that Commerce’s use of an antidumping duty rate invalidated by
Court order was an error warranting judicial review despite the
lack of exhaustion) (citing Mitsui & Co. v. United States, 18 CIT
185, 194 (1994)); see also NTN, 74 F.3d at 1208 (court granted
remand for clerical error discovered after preliminary
determination because preliminary determinations are inherently
subject to change).
“[A] remand requires a showing that the failure to raise an
issue was not the result of a lack of due diligence on the part of
the claimant.” Bethlehem Steel Corp. v. United States, 22 CIT __,
__, 27 F. Supp. 2d 201, 206 (1998) (citing ILWU Local 142 v.
Donovan, 12 CIT 87, 91, 678 F. Supp. 307, 310 (1988)). Peer does
not dispute that the alleged error was present in the margin
calculations in the Preliminary Results of this review. Peer
therefore failed to exercise due diligence and cannot raise, at
Court No. 97-12-02123 Page 12
this point in time, allegations of ministerial errors which were
discoverable in the calculations of the preliminary results. This
is especially true when the gravamen of the dispute is whether a
ministerial error occurred in the first place.
It is not clear to the Court why the use of the FOP data of
the set became obvious to Peer only after the Final Results were
published, if, as Peer claims, the same error had been made in the
Preliminary Results and if it were so egregious that it raised the
margin by more than 100 percent. What is clear to the Court,
however, is that it was the job of Peer’s counsel to review
Commerce’s calculations upon publication of the Preliminary
Results. According to counsel for Peer, “a large part of the
dumping margin . . . was caused by dumping margins attributable to
Model LM67010” and that model was “one of the most prevalent
model[s] sold” by respondent. Peer’s Mot. J. Agency R. at 4, 5.
With that information, the Court is all the more perplexed at
counsel’s failure to discover the error in question in a timely
fashion.
Failure to review the calculations because it had “no time to
carefully consider” the Preliminary Results, as Peer’s counsel
argued to the Court, is no excuse for Peer’s failure to discover
and raise the possibility of error as early in the administrative
Court No. 97-12-02123 Page 13
process as possible and thereby to exhaust its administrative
remedies, as required under 28 U.S.C. § 2637(d). However, in this
case, Commerce, too, may have been remiss in its duty. The
instruction included in Peer’s submission should have alerted
Commerce to the need, at the very least, to request further
clarification of the “set” versus “individual product” issue.
Diligence is incumbent upon all parties involved in an
administrative proceeding or litigation. Nonetheless, unlike
ministerial errors, there is no way for the Court to determine with
accuracy whether Commerce made an inadvertent error in inputting
the data or whether Commerce’s selection of the set’s data to
calculate the FOP was an error at all.
In fact, Commerce does not admit to committing any error,
ministerial or substantive. Rather, Commerce insists that it
deliberately and reasonably applied the information as submitted by
Peer.5 In any event, this dispute should have been developed
further, or at least raised, at the administrative level. The
doctrine of administrative exhaustion prevents the development and,
hence the litigation, of these types of issues before this Court.
5
At oral argument, counsel for the government asserted that
Commerce could have reasonably interpreted Peer’s notation to mean
that Peer was aware it was submitting FOP data for an entire set to
be used for a bearing part. The Court does not find this
interpretation to be unreasonable.
Court No. 97-12-02123 Page 14
In the current case, Peer/Chin Jun did not raise the set/part
dispute until after the issuance of the Final Results. As stated
in Aramide Maatschappij V.o.F. v. United States, 19 CIT 1094, 901
F. Supp. 353 (1995), the critical issue in determining whether the
plaintiff failed to exhaust its administrative remedies, is whether
the plaintiff was on “notice of Commerce’s intended computation.”
Aramide, 19 CIT at 1097, 901 F. Supp. at 357.
Similar to Aramide, the plaintiffs were on notice of
Commerce’s intended computation. In the preliminary determination
calculation worksheets, Commerce used the FOP of the model set for
the individual parts LM67048 and LM67010. In addition, Peer/Chin
Jun should have reviewed Commerce’s calculations after the
Preliminary Results. Had Peer’s counsel done so, they would have
noticed that Commerce used the factor of a set for the individual
parts LM67048 and LM67010.
The need for judicial economy and administrative autonomy
requires the Court to adhere to Commerce’s Final Results. “There
can be no doubt that Congress intended final determinations to be
precisely that. Indeed, if determinations were constantly subject
to amendment, it would be difficult to answer the question as to
when a final determination would ever be made.” Sugiyama Chain Co.
v. United States, 16 CIT 526, 533, 797 F. Supp. 989, 995 (1992)
Court No. 97-12-02123 Page 15
(internal quotations omitted) (quoting Koyo Seiko Co. v. United
States, 14 CIT 680, 682, 746 F. Supp. 1108, 1110 (1990) (quoting,
in turn, Badger-Powhatan, Div. of Figgie Int’l v. United States, 10
CIT 241, 245, 633 F. Supp. 1362, 1369 (1986)). Since Peer could
have raised these issues regarding the calculation of FOP during
the course of the administrative proceedings, the Court declines to
review Peer’s position.
Conclusion
The Court remands so that Commerce may correct the inadvertent
reversal of labor rates in its FOP calculations. Commerce is
affirmed in all other respects.
_________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: July 21, 1999
New York, New York