Tehnoimportexport, UCF America Inc. v. US

• Decision Date: 23 January 1992
• Docket Number: No. 91-02-00110.,91-02-00110.
• Parties: TEHNOIMPORTEXPORT, UCF AMERICA INC., and Universal Automotive Co. Ltd., Plaintiffs, v. UNITED STATES, Defendant, The Timkin Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

783 F. Supp. 1401

16 CIT 13

TEHNOIMPORTEXPORT, UCF AMERICA INC., and Universal Automotive Co. Ltd., Plaintiffs, v. UNITED STATES, Defendant, The Timkin Company, Defendant-Intervenor.

No. 91-02-00110.

United States Court of International Trade.

January 23, 1992.

COPYRIGHT MATERIAL OMITTED

Venable, Baetjer, Howard & Civiletti, John M. Gurley, John C. Dibble and Lindsay B. Meyer, Washington, D.C., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Jane E. Meehan, of counsel: Diane M. McDevitt and Mary O'Donnell, Atty.-Advisors, U.S. Dept. of Commerce, Washington, D.C., for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and Charles A. St. Charles, Washington, D.C., for defendant-intervenor.

OPINION

TSOUCALAS, Judge:

Plaintiffs, Tehnoimportexport, UCF America Inc., and Universal Automotive Co. Ltd., move pursuant to Rule 56.1 of the Rules of this Court for partial judgment upon the agency record to contest the determination of the International Trade Administration of the United States Department of Commerce ("ITA" or "Commerce") in Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From Romania: Final Results of Antidumping Duty Administrative Review ("Final Results"), 56 Fed.Reg. 1169 (Jan. 11, 1991). In particular, plaintiffs contend that the ITA impermissibly utilized Yugoslavian import steel prices in calculating foreign market value. Plaintiffs also challenge the ITA's calculation of labor costs, surrogate freight costs and currency conversion.

Background

On February 28, 1990, the ITA published the preliminary results of its administrative review of the antidumping duty order on tapered roller bearings and parts thereof, finished or unfinished from the Republic of Romania. This review covered the sole exports of such merchandise to the United States during the period February 6, 1987, through May 31, 1988. Subsequent to the preliminary results, Commerce extended the comment period and postponed the hearing to enable the Government of Romania to submit corrected per capita gross national product data for the period of review, as the previous government allegedly had provided false economic statistics to the International Monetary Fund ("IMF"). These statistics were the basis for choosing Portugal as the surrogate for purposes of the preliminary results. Subsequently, the IMF published corrected data in the September 1990 issue of International Financial Statistics, an IMF publication. Commerce then reopened its inquiry as to the potential surrogate countries that would be appropriate for the purposes of the final determination. Thus, on October 3, 1990, Commerce determined that the following countries were potential surrogates: Yugoslavia, Algeria, Malaysia, South Africa, Brazil and Mexico. On October 15, 1990, Commerce attempted to obtain cost data from each of these potential surrogates. On November 21, 1990, Commerce solicited comments from the parties to the proceeding with respect to such data and the surrogate selection issue. Subsequently, Commerce chose Yugoslavia as the surrogate for purposes of the final determination. Commerce determined, however, that since they would be unable to obtain appropriate sales or constructed value data from any of the selected countries, they would have to use the factors of production approach to calculate foreign market value. The final dumping margin was found to be 13.89%.

Discussion

Pursuant to the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(b)(1)(B) (1988), in reviewing a final ITA determination, this Court must uphold that determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." Substantial evidence has been defined as being "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). When applying the substantial evidence standard the "court may not substitute its judgment for that of the agency when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)).

In determining whether to sustain the agency's construction of the antidumping statute or regulations, the Court need not find the agency's interpretation to be the one which the Court views as the most reasonable. ICC Indus., Inc. v. United States, 812 F.2d 694, 699 (Fed.Cir.1987); Consumer Prod. Div., SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039 (Fed.Cir.1985). Moreover, "any judicial review of the agency determination is a limited one." The Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), after remand, 13 CIT 238, 714 F.Supp. 535 (1989), aff'd, 894 F.2d 385 (Fed. Cir.1990). "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." Id. Commerce's determination will not be overturned unless the evidence introduced by plaintiffs is "enough to convince the Court that a reasonable mind would not have found ITA's evidence sufficient to support its conclusion." Tehnoimportexport v. United States, 15 CIT ___, ___, 766 F.Supp. 1169, 1173 (1991) (quoting The Torrington Co. v. United States, 14 CIT ___, ___, 745 F.Supp. 718, 723 (1990), aff'd, 938 F.2d 1276 (Fed.Cir.1991)).

Since Romania had a state-controlled economy during the period of investigation, however, its sales of tapered roller bearings could not be used to determine foreign market value under 19 U.S.C. § 1677b(c) (1988). Rather, foreign market value was determined by selecting an appropriate non-state controlled economy and determining the prices or the constructed value of tapered roller bearings or similar merchandise in that country. 19 U.S.C. § 1677b(c); 19 C.F.R. § 353.8(a) (1988).¹ Commerce derived the value for Romanian factors of production from data representing costs in Yugoslavia, the selected surrogate.

Once Commerce selects a surrogate country, it must determine the basis for calculating the foreign market value. Timken, 12 CIT at 957-58, 699 F.Supp. at 302-03. Commerce's regulation establishes a hierarchy of methods for determining the foreign market value of merchandise exported from a non-market economy ("NME") country. 19 C.F.R. § 353.8. The preferred method of calculating foreign market value utilizes the prices at which the merchandise was sold in the surrogate country's home market. If prices were nonexistent or formed an inadequate basis for comparison, Commerce could construct the foreign market value of the imported merchandise using the "factors of production" in the NME country and cost data obtained from a surrogate country. Timken, 12 CIT at 957-58, 699 F.Supp. at 302-03; 19 C.F.R. § 353.8.

I. Commerce's Use of Import Prices Was Reasonable

Plaintiffs assert that only the value of Yugoslavian exports could reasonably be used to reflect the value of steel in the Yugoslavian market. They argue that if the non-market economy country under investigation is a manufacturer of the key raw material used, then the surrogate country selected must also be a manufacturer of the key raw material. Thus, they argue that since Romanian bearing manufacturers utilized Romanian steel, the ITA must likewise select a surrogate country that manufacturers its own steel. Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Partial Judgment on the Agency Record ("Plaintiffs' Memorandum") at 10. Plaintiffs assert that Yugoslavia, the surrogate country selected, is a manufacturer of bearing quality steel and therefore Commerce should have calculated steel prices based upon steel produced in Yugoslavia, not imported steel. Id.

The ITA, however, could not acquire such data at the time they inquired. In fact, Commerce has had difficulty acquiring such data on at least one other occasion. See Tehnoimportexport, 15 CIT at ___, 766 F.Supp. at 1176. This data is even more difficult to acquire today. The ITA stated that "the Department first attempted to obtain domestic prices of steel, the major raw material input. Unable to obtain such data, the Department then turned to the question of whether to use official import or export data for Yugoslavian steel inputs." Final Results, 56 Fed.Reg. at 1171.

There is no statutory or case law stating that import prices cannot be used to reflect the value of steel in the Yugoslavian market. In fact, Commerce has frequently used import statistics in NME country cases. See China Nat'l Metals & Minerals Import & Export Corp. v. United States, 11 CIT 859, 865-66, 674 F.Supp. 1482, 1487-88 (1987); Porcelain-on-Steel Cooking Ware From the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 36,419 (Oct. 10, 1986); Petroleum Wax Candles From the PRC: Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 25,085 (July 10, 1986); Certain Small Diameter Welded Carbon Steel Pipes and Tubes From the PRC: Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 25,078 (July 10, 1986); Certain Iron Construction Castings From the PRC: Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9483 (Mar. 19, 1986); Natural Bristle Paint Brushes and Brush Heads from the PRC: Final Determination of Sales at Less than Fair Value, 50 Fed. Reg. 52,812 (Dec. 26, 1985).

Commerce stated that they relied on the import prices of steel because of export subsidies in the Yugoslavian steel...