Carlisle Tire & Rubber Co. v. United States

• Citation: 9 CIT 520,622 F. Supp. 1071
• Decision Date: 24 October 1985
• Docket Number: Court No. 84-7-01058.
• Parties: CARLISLE TIRE & RUBBER CO., DIVISION OF CARLISLE CORP. et al., Plaintiffs, v. The UNITED STATES, Defendant, Dong-Ah Tire Ind. Co., Ltd., Heung-Ah Tire Ind. Co., Ltd., Defendants-Intervenors.
• Court: U.S. Court of International Trade

622 F. Supp. 1071

9 CIT 520

CARLISLE TIRE & RUBBER CO., DIVISION OF CARLISLE CORP. et al., Plaintiffs, v. The UNITED STATES, Defendant Dong-Ah Tire Ind. Co., Ltd., Heung-Ah Tire Ind. Co., Ltd., Defendants-Intervenors.

Court No. 84-7-01058.

United States Court of International Trade.

October 24, 1985.

Frederick L. Ikenson, P.C. (Frederick L. Ikenson and J. Eric Nissley), Washington, D.C., for plaintiffs.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Dir., Dept. of Justice, Commercial Litigation Branch (Shelia N. Ziff), Washington, D.C., for defendant.

Dow, Lohnes & Albertson (William Silverman, John C. Jost, and Margaret B. Dardess), Washington, D.C., for defendant-intervenor Dong-Ah Tire Ind. Co., Inc.

Arnold & Porter (Richard A. Johnson and Stephan E. Becker), Washington, D.C., for defendant-intervenor Heung-Ah Tire Ind. Co., Inc.

Memorandum Opinion and Order

DiCARLO, Judge:

Plaintiffs, domestic producers of tire tubes, challenge a final determination by the United States Department of Commerce, International Trade Administration (Commerce) that tubes for tires, other than bicycle tires, (inner tubes) from Korea are not being sold in the United States at less than fair value. Tubes For Tires, Other Than Bicycle Tires, From the Republic of Korea (Final), Antidumping Investigation No. A-580-009, 49 Fed.Reg. 26,780 (1984).

I. BACKGROUND

In July, 1983 seven domestic producers (petitioners) petitioned Commerce on behalf of the domestic inner tube industry alleging that inner tubes from Korea were, or were likely to be, sold in the United States at less than fair value, that these imports were materially injuring, or threatening to injure, an industry in the United States, and that an antidumping duty should be imposed under 19 U.S.C. § 1673 (1982).

Commerce published notice of its determination to begin an investigation on August 12, 1983. 48 Fed.Reg. 36,637 (1983). The International Trade Commission found reasonable indication that imports of inner tubes were materially injuring, or threatening to materially injure, a United States industry. Tubes for Tires, Other Than For Bicycle Tires, From The Republic of Korea, Investigation No. 731-TA-137 (Preliminary), USITC Public. No. 1416, 48 Fed. Reg. 39,519 (1983).

Commerce sent sales price and production cost questionnaires to two Korean producers, Heung-Ah Tire Ind. Co., Ltd. (Heung-Ah) and Dong Ah Tire Ind. Co., Ltd. (Dong-Ah), who together produce about 90 percent of the inner tubes exported from Korea to the United States. On February 10, 1984, Commerce published a preliminary determination that the Korean producers were not selling at less than fair value. 49 Fed.Reg. 5155.¹

Commerce published its final negative determination on June 29, 1984, finding de minimus weighted-average dumping margins of 0.03% for Heung-Ah and 0.01% for Dong-Ah. 49 Fed.Reg. 26,780, 26,784.

On July 25, 1984, six of the petitioners (plaintiffs) sought review of Commerce's determination, pursuant to 19 U.S.C. § 1516a(a)(2) (1982). On October 31, 1984, the administrative record was filed in the Court. Dong-Ah and Heung-Ah were granted leave to intervene on November 14, 1984 and December 27, 1984, respectively.

On January 9, 1985, plaintiffs moved to compel the filing of a newly certified and supplemented administrative record. Following a hearing held on February 25, 1985, plaintiffs' motion was granted in part and denied in part.² A newly certified record was filed in the Court on May 17, 1985. Plaintiffs now move for judgment on the agency record pursuant to Rule 56.1 of the Rules of this Court.

Plaintiffs claim Commerce made several errors in determining and adjusting the foreign market value of intervenors' inner tubes. Foreign market value is defined at 19 U.S.C. § 1677b(a)(1) (1982). Our appellate court has summarized the central role of foreign market value in the antidumping laws:

if foreign merchandise is sold or is likely to be sold in the United States at less than its fair value to the material injury of a United States industry, then an additional antidumping duty shall be imposed. The amount of the duty shall equal the amount by which the foreign market value exceeds the United States price for the merchandise.

Foreign market value and United States price represent prices in different markets affected by a variety of differences in the chain of commerce by which the merchandise reached the export or domestic market. Both values are subject to adjustment in an attempt to reconstruct the price at a specific, "common" point in the chain of commerce, so that value can be fairly compared on an equivalent basis.

Smith-Corona Group v. United States, 713 F.2d 1568, 1571-72 (Fed.Cir.1983) (emphasis in original) (footnote omitted), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). The foreign market value of intervenors' inner tubes was determined on the basis of home market sales, in accordance with 19 U.S.C. § 1677b(a)(1).

Specifically, plaintiffs claim that:

(1) Commerce incorrectly paired the sizes of inner tubes Heung-Ah sold in the home market and in the United States as "such or similar merchandise";

(2) Commerce should have allocated all or part of Dong-Ah's labor cost at the rubber mixing stage of production on the basis of tube weights, rather than time, in determining Dong-Ah's cost of production for disregarding below cost of production home market sales (3) Commerce should have used a six-month weighted average rather than quarterly data in determining Dong-Ah's cost of manufacture for making merchandise adjustments to Dong-Ah's foreign market value;

(4) Commerce should have made a circumstances of sale adjustment to Heung-Ah's foreign market value to include product liability insurance expenses for exported tubes;

(5) Commerce should have made a level of trade adjustment to Heung-Ah's foreign market value to include unloading charges in sales to original equipment manufacturers;

(6) Commerce insufficiently investigated respondent's home market sales prices; and

(7) in adjusting foreign market value to account for differences in physical characteristics of the exported and home market inner tubes, Commerce improperly determined and insufficiently verified the weights of intervenors' exported inner tubes.³

The Court finds, with respect to each contention except verification of the weights of Dong-Ah's exported inner tubes, that Commerce's determination is supported by substantial evidence or otherwise in accordance with law.

II. THE STANDARD FOR JUDICIAL REVIEW

Judicial review of final determinations in antidumping investigations is provided under 19 U.S.C. § 1516a(b)(1)(B) (1982), which states: "The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law."

"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," Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938), quoted in Matsushita Electric Industrial Co. Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). It is "enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury," NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939), and "something less than the weight of the evidence ... The possiblity of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence," Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951); Matsushita Electric Industrial Co. Ltd. v. United States, 750 F.2d 927, 936 (Fed.Cir.1984) (substantial evidence a "limited standard of review").

The substantial evidence standard "frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966) (footnote omitted). But the Court must consider the record as a whole; evidence on the record which detracts from the substantiality of the evidence relied on by the agency in making its determination must be considered. See Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1563 (Fed. Cir.1984).

With respect to the administration and enforcement of the antidumping laws, our appellate court has said:

The Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, establishes an intricate framework for the imposition of antidumping duties in appropriate circumstances. The number of factors involved, complicated by the difficulty in quantification of these factors and the foreign policy repercussions of a dumping determination, makes the enforcement of the antidumping law a difficult and supremely delicate endeavor. The Secretary of Commerce (Secretary) has been entrusted with responsibility for implementing the antidumping law. The Secretary has broad discretion in executing the law.

Smith-Corona Group v. United States, 713 F.2d 1568, 1571 (Fed.Cir.1983) (footnotes omitted). "Our review of the statute reveals tremendous deference to the expertise of the Secretary of Commerce in administering the antidumping law." Id., at 1582; see Consumer Products Division, SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039-40 (Fed.Cir.1985).

The legislative history of the Trade Agreements Act of 1979 discloses that Congress intended to give Commerce "greater flexibility" in conducting antidumping...