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B. Discussion

     In U.S. Steel, the court ruled that, under 19 U.S.C. § 1677a(f), the statutory ratio applied to “actual profit” for purposes of calculating CEP profit must be calculated on a proportional basis. 15 F. Supp.2d at 896-98. The court left undecided whether the “actual” profit calculation under 19 U.S.C. § 1677a(f)(2)(D) must include categories of expenses present in the ratio. See id. at 898 n.6. The court indicated that defendant had presented no argument that this was so. Id.

     In this action, defendant has attempted an explanation of why actual profit should not contain “imputed expenses” based on the use of the word “actual” in 19 U.S.C. § 1677a(f)(2)(D), but not elsewhere in the provision. This is facially a plausible reason for the omission. Commerce’s argument misses the mark, however, where it indicates that the statute and the SAA require that total expenses in the statutory ratio applied to actual profit must be exclusive of imputed expenses just because some form of total expenses is also used in the actual profit calculation.

     First, in the total actual profit provision, 19 U.S.C. § 1677a(f)(2)(D), the term “total expenses” is used simply to indicate the pool of sales from which to calculate actual profit. Second, the SAA makes clear that the pool of sales involved is the same for both total expenses in the ratio and total actual expenses in the total actual profit calculation. SAA, at 824-25. Third, the three alternatives for selection of a sales pool for calculation of expenses found at 19 U.S.C. § 1677a(f)(2)(C) do not relate directly to the selection of the categories of expenses to be used in the ratio. As with subsection 1677a(f)(2)(D), it is the choice of the sales pool which is specified, not categories of expenses.

     Commerce has some flexibility in determining total U.S. expenses under 19 U.S.C. §§ 1677a(d)(1)-(2), the figure which is used in the ratio calculation, pursuant to 19 U.S.C. § 1677a(f)(2)(B). But if Commerce decides to include a category of expenses in calculating total U.S. expenses in the numerator, it must also include such expenses in the denominator of the ratio, unless they are already represented in total expenses in some other fashion. See U.S. Steel, 15 F. Supp.2d at 898. The statutorily defined denominator represents a figure containing both total U.S. expenses and the expenses attributable to the foreign like product sold in the home market. See 19 U.S.C. § 1677a(f)(2)(C)(i). Commerce cannot arbitrarily remove part of the total U.S. expenses from the statutory ratio.

     The court concludes that there is some ambiguity in the use of the word “actual” in § 1677a(f)(2)(D). It may not be an unreasonable interpretation to conclude that imputed expenses should be excluded in the actual profit calculation, if that construction can be squared with the necessity of a properly calculated statutory ratio. It is a proper ratio that ensures proper allocation of profit to U.S. sales. If the profit allocable to CEP is somewhat lower because U.S. expenses are made higher by the addition of imputed expenses, this would not seem to be antithetical to the statute. There is also nothing that categorically prevents the inclusion of imputed expenses. Rather, imputed expenses should be omitted from actual profit if they duplicate expenses already accounted for. Their inclusion is not per se incompatible with the use of the word “actual.” The question is whether the imputed expenses represent some real, previously unaccounted for, expense.

     Commerce may not ignore the statutory language just because, for administrative reasons, it has chosen a different starting point for its profit calculation. Of course, it may continue to use a different form of calculation if the result comports with the statute. What Commerce must do in this case is to start with the statutory scheme. If its method of calculating U.S. expenses is not compatible with the new CEP statute, it must amend that approach. It cannot ignore that “total expenses” in the denominator includes both U.S. expenses and expenses allocable to the foreign sold product. See 19 U.S.C. § 1677a(f)(2)(C). Of course, if the imputed expenses are simply a part of an expense which was allocated to U.S. sales, and that portion is fully retained as to the foreign sales as a part of “total expenses,” it is perforce included in the denominator of the ratio. If this is so, Commerce needs to support this with citations to the record.15 Commerce has not established that the expenses at issue are already in the denominator and thus, has not distinguished U.S. Steel. This issue is remanded for calculation in accordance with this opinion.

IV. Use of a Single Assessment Rate

A. Facts

     If Commerce makes a final affirmative dumping determination and the International Trade Commission ("ITC") makes a final affirmative injury determination, the statute requires that Commerce publish an antidumping order which directs Customs to "assess an antidumping duty equal to the amount by which the normal value of the merchandise exceeds the export price (or the constructed export price) of the merchandise" and to collect cash deposits for estimated antidumping duties pending liquidation of
entries. See 19 U.S.C. § 1673e(a)(1),(3) (1994). If an administrative review is subsequently requested, the statute provides that Commerce will "review, and determine (in accordance with paragraph (2)), the amount of any antidumping duty." 19 U.S.C. § 1675(a)(1)(B) (1994). "[P]aragraph (2)" provides that Commerce shall determine "the normal value and export price (or constructed export price) of each entry of the subject merchandise" and "the dumping margin for each such entry." 19 U.S.C. § 1675(a)(2)(A) (emphasis added).

     The statute also contains a provision entitled "Deposit of estimated antidumping duty under section 1673b(d)(1)(B) of this title," which provides as follows:

     If the amount of a cash deposit, or the amount of any bond or other security, required as security for an estimated antidumping duty under section 1673b(d)(1)(B) of this title is different from the amount of the antidumping duty determined under an antidumping duty order published under section 1673e of this title, then the difference for entries of merchandise entered, or withdrawn from arehouse, for consumption before notice of the affirmative determination of the Commission [ITC] under section 1673d(b) of this title is published shall be —

     (1) disregarded, to the extent that the cash deposit, bond, or other security is lower than the duty under the order, or

     (2) refunded or released, to the extent that the cash deposit, bond, or other security is higher than the duty under the order.

19 U.S.C.A. 1673f(a) (West Supp. 1999) (emphasis added).

     Plaintiff argues that the statutes, read together, require Commerce to compute two assessment rates, one for the “cap period” (the period from Commerce's preliminary determination through the publication of the ITC's affirmative final determination) and one for the period after publication of the ITC’s affirmative injury determination.

B. Discussion

     The court simply does not agree with plaintiffs’ argument. 19 U.S.C.A. § 1673f(a) is a limitation on collection. It does not depend on the basic direction for deriving margins set forth in 19 U.S.C. § 1675(a)(2)(A).

     In this case, plaintiff is disturbed because high margins relating to sales of merchandise entered during the cap period are part of the final average margin. It categorizes this as importing cap period duties to post-cap entries. Putting aside the usual problem, which may or may not exist in this case, of matching sales and entries, Congress did not provide that dumping margins during the cap period in excess of the anticipated amount of dumping (i.e., amounts in excess of the preliminary finding of dumping) should be disregarded in their entirety. Rather, Congress provided that Commerce should disregard amounts in excess of the preliminary finding of dumping "for entries of merchandise" made during the cap period. See 19 U.S.C.A. § 1673f(a). Congress has also provided that the agency shall determine the dumping margin for "each such entry" during the period of review. 19 U.S.C. § 1675(a)(2)(A)(ii). The Final Results have complied with both of these provisions by determining dumping margins for each entry during the period of review but capping the assessed duties during the cap period at the amount of estimated antidumping duties.

     Previously, this Court has held that Commerce's decision to determine the dumping margin by use of all sales during the period (even sales which occur during the cap period) "will not necessarily result in the violation of the statutory duty cap applicable to entries made between the preliminary less than fair value determination and the publication of the ITC's injury determination." Ad Hoc Comm. of S. California Producers Of Gray Portland Cement v. United States, 19 C.I.T. 1398, 1407-08, 914 F. Supp. 535, 545 (1995). In Ad Hoc, the plaintiff argued that the agency's decision to utilize all sales during the review period to determine the dumping margin violated 19 U.S.C. § 1673f(a). Id. at 1405, 914 F. Supp. at 543. The Court, however, saw no violation because the agency indicated "that it will instruct Customs to liquidate the relevant entries at a rate no higher than the cap, in accordance with 19 U.S.C. § 1673f(a) (1988)."16 Id. at 1408, 914 F. Supp. at 545.

     Commerce explained in the Final Results that the adoption of separate assessment rates "would raise concerns about possible
manipulation of data to avoid AD duties and unrestrained dumping of certain merchandise subject to an order." Final Results, 63 Fed. Reg. at 7,394. Furthermore, the cash deposits on entries during the cap and post-cap periods are simply estimates of dumping liability. The actual assessment of antidumping duties is calculated in an administrative review under 19 U.S.C. § 1675(a) after Commerce reviews actual sales data for the period in question. Under 19 U.S.C. § 1675(a), there is no prohibition against reviewing actual sales data on entries made during the cap period.

     As held in Ad Hoc, 19 CIT at 1408, 914 F. Supp. at 545, Commerce’s determination to use one assessment rate and to instruct Customs to cap the assessment comports with the statute. Because the court finds no effort to segregate cap and post-cap entries is necessary, the issue of whether MFI and MIC, basically the pre- and post-cap period affiliates, should receive separate assessment rates is mooted.

Conclusion

     This matter is remanded for Commerce to reconsider the following issues: 1) the assessment rate for entries made after the Final Results, 2) the matching of costs to sales on a fiscal year basis, 3) the date of sale, and 4) the CEP profit calculation. Remand results are due within 60 days. Objections thereto are due 20 days thereafter and responses 11 days thereafter.

_______________________
Jane A. Restani
JUDGE

 

 

Dated: New York, New York
           This 5th day of May, 1999.


15. Commerce provides no record appendix with its brief, nor did it cite to portions of the appendix provided by plaintiff.

16. The only change made to 19 U.S.C. § 1673f(a), by amendment in 1996, was the replacement of the words "cash deposit" for "cash deposit, bond, or other security." Compare 19 U.S.C. § 1673f(a) (1988) with 19 U.S.C.A. § 1673f(a) (West Supp. 1999).