673 F.Supp. 495 (CIT. 1987), 82-6-00890, Timken Co. v. United States

Docket Nº:Court No. 82-6-00890.
Citation:673 F.Supp. 495
Party Name:The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Malcolm Baldrige, Secretary of Commerce, Lionel H. Olmer, Under-Secretary for International Trade Administration, United States Department of Commerce, Larry Brady, Assistant Secretary for International Trade Administration, United States Department of Commerce, Gary N. Horlick, Deputy Assistant Secr
Case Date:October 29, 1987
Court:Court of International Trade
 
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Page 495

673 F.Supp. 495 (CIT. 1987)

The TIMKEN COMPANY, Plaintiff,

v.

UNITED STATES, Malcolm Baldrige, Secretary of Commerce, Lionel H. Olmer, Under-Secretary for International Trade Administration, United States Department of Commerce, Larry Brady, Assistant Secretary for International Trade Administration, United States Department of Commerce, Gary N. Horlick, Deputy Assistant Secretary for Import Administration, United States Department of Commerce, Leonard M. Shambon, Director, Office of Compliance, International Trade Administration, United States Department of Commerce, John Kugelman, Director, Antidumping Order Compliance Division, International Trade Administration, United States Department of Commerce, J. Linnea Bucher, Compliance Officer, Antidumping Order Compliance Division, International Trade Administration, United States Department of Commerce, Defendants,

and

NTN Bearing Corporation of America, Intervenor.

Court No. 82-6-00890.

United States Court of International Trade.

Oct. 29, 1987

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        Stewart and Stewart (Eugene L. Stewart, Terence P. Stewart, and James R. Cannon, Jr., Washington, D.C., on the briefs), for plaintiff.

        Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Dept. of Justice, Civ. Div., Commercial Litigation Branch, Washington, D.C. (Velta A. Melnbrencis, New York City, on the briefs), for defendants.

        Barnes, Richardson & Colburn (James H. Lundquist, Robert E. Burke, Donald J. Unger, and Thomas M. Keating, Chicago, Ill., on the briefs), for intervenor.

         On Motions for Judgment on the Agency Record and for Remand

         Opinion and Order

        MALETZ, Senior Judge:

        In 1982, the International Trade Administration of the Department of Commerce ("ITA" or "agency") issued a final determination revoking a dumping finding on tapered roller bearings and component parts ("TRBs") made in Japan by NTN Toyo Bearing Company ("NTN") and distributed by NTN's subsidiary, NTN Bearing Corporation of America ("NBCA"). Plaintiff, The Timken Company, an American manufacturer of TRBs, commenced the present action, challenging the ITA determination. Upon motion by the government, unopposed by Timken, the court remanded for further consideration by the ITA. The ITA's recalculation upon remand revealed only de minimis dumping margins. The case again came before the court on motion by Timken and, upon request of all parties, the court again remanded to the ITA. Timken Co. v. United States, 10 CIT ---, 630 F.Supp. 1327 (1986). In its order of remand, the court directed the ITA to (1) collect and review additional home market sales data for the period of time that had previously been reviewed by the ITA, April 1, 1978 through November 14, 1978; (2) collect and review data for an additional period of time extending up to the date of the ITA's preliminary determination, February 27, 1981; (3) reassess proper TRB model comparisons; (4) review the accuracy of all pertinent NTN production costs; (5) correct all errors previously made; and

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(6) recalculate dumping margins. 630 F.Supp. at 1350.

        Upon remand, the ITA found a margin of 7.79 percent for NTN for the period April 1, 1978 through February 27, 1981, and so rescinded its earlier revocation of the dumping finding. Final Results of Second Redetermination on Court Remand, The Timken Company v. United States, Court No. 82-6-00890, at 38 (Jan. 28, 1987) (" Second Redetermination "). The case is again before the court, with all parties seeking yet another remand to the ITA. Timken, although approving the rescission of the revocation, argues that the agency made methodological and other errors. NBCA contends both that the agency made numerous errors and that it erred in rescinding. The government acknowledges that the ITA made certain errors in its calculations. Upon consideration of the entire record, the court concludes that another remand is necessary.

        1. Best Information

        The court, in its previous order, directed the ITA to collect additional home market sales data and cost of production data for April 1, 1978 through November 14, 1979 ("earlier period"), and for November 15, 1979 through February 27, 1981 ("later period"). 630 F.Supp. at 1332-41, 1350. 1 Upon remand, the ITA was advised that NTN had disposed of all its home market sales data for the earlier period, but had available home market sales data for the later period. United States sales data for both periods was already on the agency record or placed on the record. Cost of production data for neither period was available but was available for March 1, 1984 through September 30, 1984. 2

        Because NTN was unable to provide requested home market sales data for the earlier period and was unable to provide cost of production data for either period, the ITA relied on "best information available" to calculate dumping margins. See 19 U.S.C. § 1677e (1982 & Supp. III 1985); Second Redetermination 3, 13-16. It used as best information the home market sales data and United States sales data provided by NTN for the later period, November 15, 1979 through February 27, 1981, and the cost of production data for March 1 through September 30, 1984. Dumping margins calculated on the basis of this data were used as margins for the entire period under review. See Second Redetermination 3. The agency verified all information relied upon. Both NBCA and Timken contend that the ITA erred in its determination of what constituted best information.

        A. NBCA's Contentions

         NBCA asserts that the verified home market and United States sales data

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for the earlier period that was already on the agency record should have been used as best information for that period. 3 However, a primary reason for the last remand was that the home market data for the earlier period, although verified, was so incomplete as to prevent the agency from making statutorily mandated determinations of what constituted "most similar" merchandise. See 630 F.Supp. at 1336-40. Had the ITA nonetheless relied upon that data on remand, it would have perpetuated the error the case was remanded to correct. 4 Nor did the ITA err in deciding not to use the complete United States sales data on the agency record for the earlier period. That decision was based on the reasonable conclusion that margins were best calculated by comparing contemporaneous data, rather than by comparing United States data with home market data from a later period. See Second Redetermination 16; Matsushita Electrical Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984) (question is whether administrative conclusion is rational); cf. Ceramica Regiomontana, S.A. v. United States, 10 CIT ---, ---, 636 F.Supp. 961, 967 (1986) (where information provided by foreign government proved inaccurate in important respects ITA was under no obligation to use it), aff'd, 810 F.2d 1137 (Fed.Cir. 1987).

        B. Timken's Contentions

         Timken argues that the ITA should not have used any data provided by NTN as "best information." However, nothing in 19 U.S.C. § 1677e, requiring use of "best information," precludes reliance on a respondent's data. See 19 U.S.C. 1677e; Budd Co. v. United States, 1 CIT 67, 75, 507 F.Supp. 997, 1003-04 (1980) ("best information available" may include all information that is accessible or may be obtained, whatever its source). Moreover, the agency determinations cited by Timken merely establish that the agency has often relied on data other than a respondent's data; they do not establish, as Timken contends, that there is an agency policy of never relying on a respondent's data. 5 Indeed, ITA decisions indicate to the contrary that the agency has used verified respondents' data as best information. 6

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         The ITA was therefore not barred from using NTN's data as best information nor did it abuse its discretion in relying on that data. Timken argues that in any event better sources of information were: (1) a market research report Timken had submitted; (2) certain information on home market sales contained in "Section A" of NTN's original questionnaire response; or (3) the highest dumping margin of another respondent. However, the ITA not unreasonably concluded that Timken's market research report was unreliable 7 and that use of the Section A information would have been inappropriate because it contained only aggregate figures reflecting sales of merchandise which were not all of the same general class or kind as the merchandise under review. See Second Redetermination 14-16. With regard to Timken's contention that the ITA should have used the highest dumping rate of another respondent, the record shows that the ITA was under the impression that no specific dumping rate was available, id. at 15; Timken did not bring the existence of such a rate to the agency's attention. Timken therefore acts too late in only now bringing the existence of an applicable rate to the agency's and the court's attention. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952) (courts should not topple over administrative decisions unless administrative body not only erred but erred against objection made at time appropriate under its practice). Moreover, the ITA's selection of best information was a reasonable exercise of its discretion. See Matsushita Electric Industrial Co., supra, 750 F.2d at 933.

         2. Deflation of Production Costs

         Because production cost data for the period under review was not available, the ITA used production cost data from 1984. NBCA argued that those 1984 costs should be deflated to more closely approximate actual costs from 1978 through 1981. The agency...

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