Slip Op. 10-25



## UNI TED STATES COURT OF INTERNATIO NAL T RADE

: SHI NHAN D I AMOND I

NDUSTRI AL

CO., : L TD., : : Plaintiff, :

: v. : Be fore : R. Kenton Musgr ave, Senior J udg e : Court No. 09-00509 UNI TED STATES, : : Def endant, :

: and :

: DI AMOND SAWBL ADES : MANUF ACTURERS’ COAL I TI ON, : : Def

endant- I nterve nor. : :

OP INION AND ORDER [Granting Def

endant’ s motion for corr ection of minist eria l err o r s ; s tay ing all other court proce eding s in this matter until issuance of a conclusive court decision in Diamond Sawblades Manufacturers’ Coalit ion v. United States , Slip Op. 09-5.] Dated: Marc h 11, 2010
Perkins Coie, LLP (

Michae l P. House) , for the pla intiff. Tony W est , Assistant Attorney Gene ral; Jeanne E. Davidson , Di re ct o r, Franklin E. W hite , Jr ., Assistant D irec tor, Commercial L itigation Br anch, Civil Division, U.S. Department of Justi ce ( Delisa M. Sanchez ); Offic e of the Chief Counsel for I mport Administration, U.S. Depa rtment of Commerce (

Joanna V. Theiss ), for

the def endant U.S. De partment of Commerc e. W iley Re in LL P (

Daniel B. Pick

ard, Mauree n E. Thorson) for the de fenda nt-intervenor

.Court No. 09-00509 Pag e 2

Musgr ave, Senior J udg e: Be fore the court is a mo ti o n s ubmitted by Def endant United
States Depa

rtment of Commerce, I nterna tional Trade Administrati o n (“Commerc e” or “the Depa rtment”) seeking leave from the Cou rt to issue and publish an amende d deter mination that incorpora tes corr ections to c erta in a lleg ed minist eria l e rror s in the dumping marg in calc ulation set forth in its final aff

irmative antidumping deter mination reg arding diamond sawblade s an d p arts there of imp o rt ed fr om the Republic of Kore a. See Def .’s Mot. for L eave to Publis h Am. Final
Deter m. Correc ting Mini sterial Errors (“Def .’s Mot.”); Notice of Final Determ ination of Sales at Less than Fair Value and Final Determ ination of Criti cal Circumstances: Diamond Sawblades and Parts There of from the Republic of Korea , 71 Fe d. Reg . 29310 (May 22, 2006) (“ Final Re sults ”). Plaintiff Shinhan Diamond I ndustrial Co., L t d

. , (“ S h inhan”) consents to the motion; DefendantI nterve nor Diamond Sawblades Manufa cture r s ’ Co a li ti o n (“D SMC”) opposes the motion on sever al
g rounds. Def

-I nt’s Opp’n to De f.s’ Mot. for L eave to A mend Final Deter m. ( “De f-I nt’s Opp’n” ).
For the re asons set for

th below, the motion will be gr anted.

I. Back ground
Commerce published the Final Results on May 22, 2006. The Final Results differ ed from the preliminary deter mination in sever al respe cts that are rele vant to this matter. First, contra ry to its preliminary finding s, Commerce determined that respondents Ehwa and Shinhan should not be “collapse d” into a s ingle entity and instead trea ted them as separ ate entities with differ ent d u m ping marg ins. See Final Results , 71 Fe d. Reg

. at 29312; I ssues and Dec ision Memora n d u m (“D ecision Mem.”), Pub. R. Doc. 529 at 51. Second, the weig hted aver ag e dumping marg ins wer eCourt No. 09-00509 Pag e 3

revised upwar d from 11.25% to 12.76% for Ehwa, from 11.25% to 26.55% for Shinhan, and 16.39% for the “all others” rate, which had been previously set at 10.25%. Final Results , 7 1 Fe d

. R eg. at 29312. See Notice of Preliminary Determ ination of Sales at Less Than Fair Value, Postponement

o f F in a l D e te rmination, and Negative Preliminary Criti cal Circumstances Determ inatio n : D ia m o n d Sawblades and Parts T

hereof from the Re

public of Korea , 70 Fe d. Reg . 77135 (De pt. Comm erc e, Dec

. 29, 2005) (“

Preliminary Results ”). Finally , the Depa rtment found that, due (at least in part) to the highe r dumping marg ins, “cr itical circ umstances” exis ted for Shinhan and for the “all others”
cate g ory of companies, trig g ering the 90-day “re troac tive” suspension of liquidation pursuant to 19 U.S.C. § 1673d(c)(4) (B ). Final Results , 71 Fe d. Reg . at 29312.

Shortly afte r t he publi cation of the Final Results , Ehwa and Shin h an s u b m itted, in compliance with the Depa rtment’s reg ulation s , m i nisterial err or comments alleg ing, among other things, that the dumping marg in calc ulation was incorre ct beca use Commerce had inadver t entl y failed to allow for a constructe d export price (“ C E P ”) offse t in its calc ulations for Ehwa and Shinhan. See May 24, 2006 Ministerial Error Comments, Pub. R. Docs. 542, 543. I n rebuttal, thenpetitioner DSMC arg ued that the Depa rtment’s failure to include a CEP offse t was not a minist eria l

err or beca use the lack of analy sis in the Final Results indicated that “Commerce di d n o t analy ze whether Ehwa or Shinhan are entitled to

. . . a CEP offse t adjustment as separ ate entities.” May 30, 2006 Ministerial Error

Reply , Pub. R. Doc. 545.
I n a J une 28, 2006 memorandum to the Acting Direc tor, a senior I nterna tional Trade Compli ance Analy st conclude d that the Depa rtment had indeed made a minist eria l err or with respe ct
to Ehwa and Shinhan’s CEP offse t, and rec ommended that the err or be correc ted. MinisterialCourt No. 09-00509 Pag e 4

Allegations Mem ., Pub. R. Doc. 547 at 2, 4. The analy st explained that “g iven that the preliminary deter mination analy sis was based upon Shinhan and Ehwa’ s individual selling functions, and g iven that no information or arg ument was submitt ed subsequent to the preliminary dete rm i n at i on to demonstrate othe rwise, we find that a ministerial er ror oc curr ed . . . .” Pub. R. Doc. 547 a t 2-3.
Howeve r, two subsequ en t events preve nted Commerce from implementing the

rec ommended corr ection s. First, on J uly 11, 2006, the I nterna tional Trade Commi ssion (“I TC”) published i n the Fe dera l Reg ister its final deter mination that the domestic diamond sawblade industry was not materia lly injured or threa tened wit h m aterial injury by rea son of the subject impor ts

. See Diamond Sawblades and Parts Thereof from China and Korea , I nvestig ation Nos. 731-
TA-1092 and 1093 (F inal), 71 Fe d. Reg

. 39128 (I TC J uly 11, 2006). Acc ording ly , and pursuant to the Depa rtment’s own reg ulations, the antidumping investiga tion ter minated automatically on that date. See 19 C.F.R. § 351.207(d) (2009) (stating that “an investiga tion terminates automatically
upon publication in the Fe dera l Reg ister” of neg ative I TC deter mination). See also Customs Telex, Pub. R. Doc. 553. Second, as noted by the defe nd ant, DSMC initiated a challeng e to the Final Results on J uly 25, 2006 ( see Diamond Sawblades Manufacturers’ Coalit ion v. United States , Court No. 06-00248), w hich divested Commerc e of jurisdiction over the matter. On Octobe r 12, 2006, DSMC’s Court No. 06-00248 challeng e to the Final Results

wa s s t ay ed pending the outcome of Court No. 06-00247, DSMC’s para llel action contesting the
I TC’s neg ative-injury deter mination. See October 12, 2006 Stay Orde r, Court N o. 06-00248. The challeng e to the I TC deter mination is not y et resolved. After a rema nd and subsequent reve rsal by the I TC on the question of threa t-of-ma terial-injury , the court issued a final decision sustaining theCourt No. 09-00509 Pag e 5

I TC’s (now aff

irmative) rema

nd deter m i nation on J anuar y 25, 2009. Diamond Sawblades Manufacturers’ Coalit ion v, United States , 33 CI T __, Slip Op. 09-5 ( appeal docketed , Oct. 15, 2009; argued Fe b. 2, 2010) (“ Diamond Sawblades II

”). Yet beca

use Diamond Sawblades II is now pending appea l befor e the United States Court of Appea ls for the Fe dera l Circuit (“F eder al Circuit”), the conclusive outcome of that case has not been deter mined. Be cause the outcome of that case has the potential to obviate Shinhan’s curr ent challeng e to the Final Results , the court will stay the merits adjudication of this ac tion until issuance of a fina l and conc lusive decision in that case

. Pursuant to the mandamus relief g rante d in Diamond Sawblades Mfrs. ’ Coalit ion v. United States , 33 CI T

_

_ , 6 5 0 F. S u pp 1331 (2009) ( appeal docke ted , Oct. 15, 2009) (“ Diamond Saawblades III

”) , C ommerce issued and published antidumping duty order s and order ed the collection of cash deposits on imports of subject merc handise. See Diamond Sawblades and Parts The reof From the People’ s Republic of China and the Republic of Korea: Antidumping Duty Orders , 74 Fe d. Reg

. 57145 (De p’t Commerce Nov. 4, 2009). Acc ording ly , Shinhan, as well as two

o t h er plaintiffs have initiated challeng es to the Final Results pursuant to 19 U.S.C. § 1516a(a )(2) (A)( i)(I I ). See Ehwa Diamond Industr i a l Co ., Ltd., v. United States, (Court No. 09- 00508) and Hyosung D&

P Co., Ltd., v. United States , (Court No. 09-00510). I n all four actions that challeng e the Final Results the g overnme nt has filed para llel motions for leave to issue an amende d deter mination corr ecting minist eria l er ro rs ; all but DSMC have consente d to the motion.

DSMC opposes the motion on the g ro u n ds that (1) the alleg ed err ors are not minist eria l; (2) the defe ndant has failed to show g ood cause for making the corr ections; and (3) the balanc e of ha

rdships are in DSMC’s favor, bec ause the merits of t he case will reve al that the ca shCourt No. 09-00509 Pag e 6

deposit rate is “alr eady lower than it should be” and that even i f it is deter mined otherwise, any excess cash de posits would ult imately be re turned. De f-I nt’s Opp’n a t 2, 5, 6.
II. Disc ussion A. The court’s jurisdiction over this matter is derive d from 28 U.S.C. 1581(c ) (2006). The term “ministerial err or” is define d both in statute and reg ul at i o n as “an err or in addition,

su b tr a c ti o n , o r o th e r a

r it h me ti c f u n c ti o n , c le r ical err or resulting from inacc urate copy ing, duplication,

or the like, and any other simil ar ty pe of unintentional err or wh i ch the Secre tary considers minist eria l

. ” 19 U.S.C. § 1623d(e) (2006); 19 C.F.R. § 351.224(f) (2009). The power of an administrative ag ency to corr ect its own minist eria l err ors is presumed and considere d analog ous to the power of a court to corr ect mini sterial errors set forth in Fe dera l R u l e o f P roce dure (“F RCP ”) Rule 60(a)

. American Trucking Ass’n v. Frisco , 358 U.S. 133, 145 (1958). I n this c ase, Congr ess expressly deleg ated that power to the Depa rtment by the enac tment of section 1333 of The Omnibus Trade and Competitiveness Act of 1988 ( codified a s 19 U.S.C. § 1673d(e)).

Howeve r, once a lawsuit has been commence d in this Court, Commerce is no longe r authorized to amend its deter mination. See 28 U.S.C. § 1581(c)

. As the Zenith Cou rt explained,
“once [t his] court’s exclusive jurisdiction has been invoked, Commerce may corr ect cler ical err ors only with the court’s prior authorization.” Zenith Electronics Corp. v. United States , 884 F.2d 566,
561 (F ed. Cir. 1989). The “prior authorization” require ment announce d in Zenith is also analog ized from FRCP Rule 60(a) , which provides that, once an appea l has been dockete d in the appellate court, cler ical mistakes may only be corr ecte d “with leave o f t h e ap p ell ate court.” FRCP Rule 60(a) ;Court No. 09-00509 Pag e 7

USCI T Rule 60(a)

. Wit hout the court’s authorization, Commerce would be left to corr ect the err ors only if the j udicial review process results i n a re mand to the ag ency that specific ally or i mplicitly contemplates such corr ection rathe r than throug h the proce dure contemplated by section 1673d(e)

. See NTN Corp v. United States , 32 CI T __, 587 F. Supp.2d 1313 (2008)

.

On t h e other hand, “it is axiom atic that fair and acc urate deter minations are fundame ntal to the proper administration of our dumping laws[;] [c] onsequently , co urts have uniforml y au t h o ri zed the corr ection of any cler ical err ors which would aff ect the acc urac y of a deter mination.” Koyo Seiko Co. v. United States , 14 CI T 680, 682, 746 F. Supp. 1108, 1110 (1990).
Moreove r, wh er e, as here , Congr ess has provided a specific mecha nism for the corr ection of minist eria l e rror s, the enac tment of those provisions may be interpr eted to “indicate [] a leg islative pref ere nce f or dete rminations that are fac tually corr ect.” Koyo Seiko , 14 CI T at 683, 746 F. Supp. 2d at 1111. Acc ording ly , it follows that allowing corr ection of a mi n isterial err or contained in a dumping marg in calc ulation wo u l d further the cong ressional purpose underly ing 19 U.S.C. § 1673d(e)

. The decision of whether to allow corr ection of minist eria l err ors is left to the court’s discretion. I n this Court, that deter mination has g ener ally turned on whether the proposed corr ection would be prejudicia l or proce durally unfair to one of the parties. See, e.g. , NTN , 587 F. Supp.2d at 131 3

. Ho wever, wher e the issue is contested, the court must first deter mine whether the err or descr ibed by the defe ndant’s motion is acc urate ly char acte ri zed as minist eria l; in which case the court will uphold that char acte rization if it is support ed by substantial evidenc e of rec ord. See 19 U.S.C. § 1516a(b)(1) (B )(i); American Trucking , 358 U.S. 133 (reve rsing decision of district cour tCourt No. 09-00509 Pag e 8

on the g round that substantial evidenc e supported I nterstate Commerce Commi ssion’s finding that

an er ror wa s inadverte nt and ministerial).

I n the context of Rule 60(a) , whether the alleg ed err or is truly minist eria l is g ener ally the only question befor e the court. I n that reg ard, it has bee n observe d that a minist eria l err or “enc ompasses only err ors mecha nical in nature, appar ent on the rec ord, and not involving an err or of substantive judgme nt,” or includes only “mindless and mecha nistic mistakes [and] minor shifting of fac ts.” Pfizer Inc. v. Uprichard , 422 F.3d 124, 129-130 (3d Cir. 2005) (desc ribing minist eria l

err ors in a Rule 60(a) analy sis) (interna l quotes and citation omitted). Although the expansive final clause contained in definition of “ministerial err or” set forth in section 1623d(e) (“.

. . and any other simil ar ty pe of unintentional err or which the Secre tary considers minist eria l”) may indicate a broade r
scope than Rule 60(a) , the definition cannot be seen as open ended; mistakes of law or mistakes that require “ce rebr ation or rese arc h into the law or plane tary excursions into facts” a

re not r easona

bly viewed as minist eria l err ors. Pfizer , 422 F.3d at 130 (citing In re W

. Tex. Mktg ., 12 F.3d 497, 504 (5th Cir. 1994)).

The additional question of whether allowing the corr ection will result in proce dural unfairne ss or prejudice appea rs limit ed to the context of administrative law. Courts have disallowed minist eria l corre ctions where doing so violate s statutorily -manda ted procedura l require ments ( see Utility Solid W

as t e A ct i vi t i es Group v. E.P.A. , 236 F.3d 749 (D.C. C ir. 2001) (setting aside EPA Rule amendment on the g round that rule corr ection, even if minist eria l, r equire d proper notice and
comment proce dure) ); wher e a party was not aff orded adequate due proce ss at the ag ency level (s ee Zenith Electronics Corp. v. United States , 12 CI T 932, 699 F. Supp. 296 (1988) ( aff’d , 884 F.2d 566Court No. 09-00509 Pag e 9

(F ed. Cir. 1989) (enjoining Commerce from amending dumping marg in wher e, inter alia , evidenc e
sug g ested that plaintiff was not provided an opportunity to express its views on the err ors befor e the
ag ency )); and have indicated that a correc tion might be disallowed i f t h e proce dure were to cause

unnece ssary delay or expense to one of the parties ( see NTN , 587 F. Supp.2d at 1316 (g iving consideration to the court’s “oblig ations to preve nt unfairne ss to any party and to avoid unnece ssary delay or expense.”) (citing USCI T Rule 1)).
B.
I n this action, the ministerial nature of the er ror is appa

rent fr om the rec ord. I n the Preliminary Results , the Depa rtment noted its decision to g rant a CEP offse t to Ehwa and Shinhan

as a collaps ed en tity , 70 Fe d. Reg

. 77141, and it is undisputed that no party challeng ed the CEP

o ff s et

. Howeve r, in the Final Results , the CEP offse t was omitted from the marg in calc ulations without either notation in the decision itself or discussion of the issue in the Dec ision Memorandum.
I n contra st, when Commerce (af ter rec eiving comments disputing the issue) chang ed its decision to collapse Ehwa and Shinhan and instead trea ted them as separ ate entities, it included in the Dec ision Memorandum near ly six pag es of discussion on the matter. Dec ision Mem., 46-52. That the CEP offse t was omitted without e x planation mitigates strong ly toward the conclusion that the omission was inadvertent, particularly when none of t he int ere sted parties disputed the pr eliminary g rant of it, and wher e the failure to explain a decision to exclude it would have been improper. Acc ording ly , the court finds that the evidenc e supports the conclusion that the omission of the CEP offse t was unintentional a

nd hence a “ministerial err or” pursuant to the broad definition of that term set forth in 19 C.F.R. § 351.224(f).Court No. 09-00509 Pag e 10
Although DSMC arg ues that the err or i s n o t minist eria l, its arg ument is more

acc urate ly char acte rized as a disag ree ment with the manner in which the Depa rtment chose to corr ect the er ror, i.e. , that the dec ision to allow a CEP offset for Ehw a and Shinhan as separ ate e ntities is
not supported by substantial evidenc e of rec ord. Howeve r, t h at p o i n t g oes to the merits of the deter mination, which are not curr ently befor e the court. The only question at issue here is whether the Depa rtment’s omission of the CEP offse t in the Final Results was an unintentional, minist eria l

err or. DSMC next arg ues that the court should deny the motion beca use the defe ndant “has
not shown that g ood cause exis ts for the Court to g rant its reque st” and notes that the Depa rtment’s

corr ection “would have no eff ect on whether critica l circ umstances are established

. . . .” Def -I nt’s Opp’n at 2. This arg ument is misplaced. As discussed supra , the courts are very much in f avor of

corr ecting minist eria l err ors wher e possible, and the clea r Congr essional pref

ere nce for acc urac y in antidumping deter

minations streng thens that tendenc y . Acc ording ly , if it is deter mined that an err or is, in fac t, minist eria l, the burden of persua sion is essentially on the opponent of the motion to show
g ood cause why the motion should not be g rante d by showing that p rejudice or some other fundame ntal u n fa irness would result, and none has been shown here

. DSMC’s “bala nce of hardships” arg ument is simil arly irrele vant beca use such a test is s i m p ly not part of the deter mination.
DSMC asser

ts further that, “gi v en the Depa rtment’s flawe d analy sis,” allowing

correc t i o n o f t h e err ors would not incre ase the acc urac y of the dumping marg ins, but only distort them further , and that dela y ing the ultimate adjudication of the i ssues serve s only to prejudice theCourt No. 09-00509 Pag e 11

DSMC members. Def

-I nt’s Opp’n at 5. These arg uments g o to the merits of the case and must be reje cted in the context of the instant motion to c orre ct minist eria l e rror s. Moreove r, g iven that the merits adjudication of this matter must awa it the outcome of Fe dera l Circuit’s decision in Diamond Sawblades II

, the corr ections proposed by the Depa rt m ent will cause no delay whatsoeve r. IV. Conclusion
I n consideration of the fore g oing, the court conclude s that the Depa rtment should be permitted to issue a

n d p u b li s h a n a me n d e d d e te rmination that incorporates the minist eria l corr ections set forth in its motion. According ly , in considera tion of all paper s submitt ed her ein, it is hereby

ORDERED that Def

endant’ s Motion for

L eave to Publi sh Amended Final Results Correc ting a Ministerial Error , as filed on J anuar y 13, 2010, be, and here by is GRANTED and that the time for corr ecting the minist eria l err ors and publishing the amende d d et ermination will be within 15 day s of the date of this order. I t is further
ORDERED that al l other proce eding s in this case be, and here by are , STAYED p en d ing issuance of a final and conclusive decision in Diamond Sawblades Manufacturers’ Coalit ion v. United Stat es , Slip Op. 09-5, which is now pending appea l at the United States Court of Appe als for the Fe dera l Circuit.

/ s / R

. Ke n t o n M u s gra v e R. KENTON MUSGRAVE, Senior J udg e Dated: Ma

rch 11, 2010 New Y ork, Ne w York