Peer Bearing Co. v. US, 91-08-00580.

• Decision Date: 04 September 1992
• Docket Number: No. 91-08-00580.,91-08-00580.
• Citation: 16 CIT 799,800 F. Supp. 959
• Parties: PEER BEARING COMPANY, Plaintiff, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

800 F. Supp. 959

16 CIT 799

PEER BEARING COMPANY, Plaintiff, v. UNITED STATES, Defendant The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.

No. 91-08-00580.

United States Court of International Trade.

September 4, 1992.

COPYRIGHT MATERIAL OMITTED

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

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Velta A. Melnbrencis, of counsel, Stephen J. Claeys, Atty.-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Geert De Prest, John M. Breen, Vincent J. Branson, Patrick J. McDonough and Amy S. Dwyer, for defendant-intervenor The Torrington Co.

Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley, Larry Hampel and Joseph A. Perna, V, for defendant-intervenor Federal-Mogul Corp.

OPINION

TSOUCALAS, Judge:

Plaintiff, Peer Bearing Company ("Peer"), moves pursuant to Rule 56.1 of the Rules of this Court for judgment on the agency record challenging the Department of Commerce, International Trade Administration's ("ITA") decision not to calculate a separate antidumping duty margin for Peer International, a Japanese firm which buys and sells but does not produce ball bearings, by using constructed value data provided by Peer International to calculate foreign market value ("FMV") and to use Peer International's sales to U.S. importers to calculate United States price ("USP"). In the alternative, Peer requests that on remand the ITA be required to use constructed value data provided by Peer International, or other less adverse information, in cases where the ITA used "best information available" ("BIA") in calculating the margins for Peer International's Japanese suppliers ("the Japanese suppliers"). Plaintiff also challenges the ITA's use of BIA in situations where the Japanese suppliers allegedly failed to provide home market or constructed value data due to the bearings not having been produced or shipped at the time the Japanese suppliers submitted their questionnaire responses. Finally, plaintiff requests this Court to order the ITA to calculate plaintiff's importer-specific assessment rate now.

The administrative determination under review is the ITA's final results in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 56 Fed.Reg. 31,754 (1991). Substantive issues raised by Peer and Peer International in the underlying administrative proceeding were addressed by the ITA in the issues appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review ("Issues Appendix"), 56 Fed. Reg. 31,692 (1991).

Background

On June 11, 1990, the ITA initiated an administrative review of ball bearings, cylindrical roller bearings, spherical plain bearings and parts thereof from Japan. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand and the United Kingdom Initiation of Antidumping Administrative Reviews, 55 Fed.Reg. 23,575 (1990). Peer and Peer International participated in this review. Administrative Record Japan Public ("AR Jap.Pub.") Docs. 28, 63.

On March 15, 1991, the ITA published its preliminary determination in the administrative review. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts thereof from Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Antidumping Duty Administrative Reviews ("Preliminary Results"), 56 Fed.Reg. 11,186 (1991). In the Preliminary Results, the ITA calculated a company-specific antidumping duty margin for Peer International which was 0.08%. Preliminary Results, 56 Fed.Reg. at 11,189.

On July 11, 1991, the ITA published its Final Results in this proceeding. Final Results, 56 Fed.Reg. 31,754. ITA found "that all of Peer International's suppliers had knowledge at the time they sold their merchandise to Peer International that those sales were destined for the United States," that the ITA "considers the suppliers the source of any dumping activity" and "therefore, for cash deposit purposes, the ITA has not calculated a rate for Peer International." Issues Appendix, 56 Fed. Reg. at 31,747.

In addition, in instances where the Japanese suppliers failed to provide requested information to the ITA, the ITA resorted to the use of BIA. Final Results, 56 Fed. Reg. at 31,755; Issues Appendix, 56 Fed. Reg. at 31,705, 31,747-48.

Discussion

The Court's jurisdiction over this matter is derived from 28 U.S.C. § 1581(c) (1988).

A final determination by the ITA in an administrative proceeding will be sustained unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is relevant evidence that "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, 216, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).

1. Company Specific Margin for Peer International

Peer argues that Peer International is a reseller of ball bearings, citing 19 C.F.R. § 353.3(s) (1991) for support, and that as such Peer International has a right to a separate antidumping duty margin based on Peer International's sales to U.S. importers. Memorandum of Points and Authorities in Support of Plaintiff's Motion for Judgment on the Agency Record ("Peer's Memorandum") at 12-27. Peer argues that since Peer International had no home market sales upon which to base FMV, the ITA should have used constructed value data provided by Peer International to calculate FMV.¹ This information consisted of Peer International's cost of acquiring the bearings from its Japanese suppliers and Peer International's selling, general and administrative expenses and profit. Peer's Memorandum at 16-21. Also, Peer argues that USP should be based on Peer International's sales to Peer or, in the alternative, that the ITA should treat Peer International's sales to Peer as exporter sales price ("ESP") sales for purposes of determining USP.²Id. at 22-24.

Defendant and defendant-intervenors, Federal-Mogul Corporation ("Federal-Mogul") and The Torrington Company ("Torrington"), claim that there is specific statutory authority which allows the ITA to base FMV on home market sales by Peer International's suppliers and to base USP on sales made by the suppliers to Peer International for exportation to the United States. Defendant's Memorandum in Opposition to Plaintiffs Motion for Judgment upon the Administrative Record at 14-15; Federal-Mogul Corporation's Opposition to Plaintiffs Motion for Judgment on the Agency Record at 1-2; The Torrington Company's Response to Plaintiffs Rule 56.1 Motion for Judgment on the Agency Record at 6.

A. Peer International as a Reseller

In arguing that Peer International is a reseller, Peer relies on 19 C.F.R. § 353.3(s) which states "`reseller' means any person (other that the producer) whose sales the Secretary uses to calculate foreign market value or U.S. price, including the foreign reseller or exporter." (Emphasis added). The plain language of this regulation is of no help to Peer because it grants the Secretary broad discretion in deciding when an interested party is a "reseller." While it is true that Peer International resells bearings, it is not a "reseller" within the meaning of 19 C.F.R. § 353.3(s) if, as here, the Secretary chooses not to use Peer International's sales as a basis for calculating USP or FMV. Indeed, the ITA could not use home market sales by Peer International to calculate FMV because Peer International made no such sales. Therefore, the Court finds that Peer International does not deserve a company specific antidumping duty margin solely on the basis that it is a reseller of ball bearings.

B. United States Price

The use of ESP to calculate USP only occurs when sales are between related parties. 19 U.S.C. § 1677a(c).³ Since Peer concedes that Peer and Peer International are not related parties, ESP cannot be used to calculate USP. Peer's Memorandum at 12.

Therefore, USP must be calculated based on "purchase price" which is defined as the

price at which merchandise is purchased, or agreed to be purchased, prior to the date of importation, from a reseller or the manufacturer or producer of the merchandise for exportation to the United States.

19 U.S.C. § 1677a(b). In this case Peer International purchased the bearings at issue from a "manufacturer or producer" in Japan, "prior to the date of importation ... for exportation to the United States." Id. Moreover, the ITA determined that the producers, at the time they sold the merchandise to Peer International, had knowledge that the sales were "for exportation to the United States."⁴ In these circumstances the ITA has consistently used the suppliers' sales to the middleman to calculate USP.⁵

This Court, in Sandvik AB v. United States, 13 CIT 738, 721 F.Supp. 1322, aff'd, 904 F.2d 46 (Fed.Cir.1989), affirmed the ITA's use of a supplier's sales to a middleman to calculate USP in a case similar to this one. The plaintiffs in Sandvik argued that the price charged on sales to the U.S. by a third country exporter, instead of the price the producers charged to the third country exporter, should be used to calculate USP. Sandvik, 13 CIT at 761, 721 F.Supp. at 1341. The Court in Sandvik held that the ITA acted within its discretion in using the price charged by the...