Murata Mfg. Co., Ltd. v. US

• Decision Date: 20 April 1993
• Docket Number: Court No. 92-03-00208.
• Citation: 820 F. Supp. 603,17 CIT 259
• Parties: MURATA MFG. CO., LTD. and Murata Erie North America, Inc., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

820 F. Supp. 603

17 CIT 259

MURATA MFG. CO., LTD. and Murata Erie North America, Inc., Plaintiffs, v. UNITED STATES, Defendant.

Court No. 92-03-00208.

United States Court of International Trade.

April 20, 1993.

Donohue and Donohue, Joseph F. Donohue, Jr., Kathleen C. Inguaggiato and Daniel W. Dowe, New York City, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Civ. Div., Commercial Litigation Branch, U.S. Dept. of Justice, Marc E. Montalbine, David W. Richardson and Michelle Behaylo, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.

OPINION

CARMAN, Judge:

Pursuant to Rule 56.1 plaintiffs move for judgment upon the agency record. Plaintiffs challenge Cellular Mobile Telephones and Subassemblies from Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 7,728 (1992), issued by the International Trade Administration, U.S. Department of Commerce (Commerce). This action is brought pursuant to section 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2) (1988), and pursuant to 28 U.S.C. § 1581(c) (1988).

BACKGROUND

The administrative review which is the subject of this action was initiated on February 19, 1991. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 56 Fed.Reg. 6,621 (1991). This review covered the entries of Murata Manufacturing Co., Ltd., for the period December 1, 1989 through November 30, 1990. The imports covered by the review were cellular mobile telephones (CMTs), CMT transceivers, CMT control units, and certain subassemblies thereof. Cellular Mobile Telephones and Subassemblies from Japan; Preliminary Results of Antidumping Duty Administrative Reviews, 56 Fed.Reg. 61,400 (1991).

Murata filed a consolidated response to Commerce's questionnaire on June 7, 1991. In its Section B response, entitled "Sales In The Home Market," Murata stated that it had listed its home market sales on a computer tape and that this list did not include sales of samples to purchasers in the home market. Sample sales were listed separately on Exhibit A-5-6 of Murata's questionnaire response. Murata's questionnaire response listed six different paired filter models sold in the United States during the period of review along with suggestions for the most similar models sold in the home market. Murata listed model KMGC104 as the paired filter sold in the home market during the period of review which was most similar to model KMGC109A.

On December 3, 1991, Commerce published the preliminary results of its review and reported a margin for Murata of 19.41 percent. Cellular Mobile Telephones and Subassemblies from Japan; Preliminary Results of Antidumping Duty Administrative Reviews, 56 Fed.Reg. 61,400 (1991). On December 9, 1991, Murata requested a disclosure conference and hearing regarding the preliminary results.

Murata attempted to submit a case brief to Commerce on January 8, 1992. Commerce rejected this brief on January 31, 1992, indicating that the brief violated 19 C.F.R. § 353.31(a)(ii), because it "contained factual information regarding sample sales that was not submitted before the date of publication of notice of preliminary results." Pub.Doc. 26. On February 4, 1992, Murata requested Commerce to reconsider its decision and to accept the contested information for the limited purpose of corroborating the fact that a clerical error was made in the home market sales submission. Murata argued that the model KMGC104 sales it had included in its Questionnaire Response were really sample sales which should not have been matched with United States sales in the calculation of the dumping margin. Pub.Doc. 27.

On March 4, 1992, Commerce published its final results of the administrative review. Cellular Mobile Telephones and Subassemblies from Japan; Final Results of Antidumping Duty Administrative Reviews, 57 Fed.Reg. 7,728 (1992). In the Final Results, Commerce disagreed with Murata's argument that, since model KMGC104 sales were not made in quantities comparable to model KMGC109A sales, model KMGC104 sales should not be used as a basis of comparison with the U.S. model KMGC109A. Commerce also ruled that there was no evidence on the record prior to issuance of the preliminary results supporting the allegation that the KMGC104 sales were sample sales. Commerce stated further that sales are not necessarily samples because they are made in low quantities and at high prices. Id. at 7,729-30.

CONTENTIONS OF THE PARTIES

Plaintiffs argue that Commerce should not have used sales of model KMGC104 as the home market comparison model for United States sales of model KMGC109A for two reasons: (1) model KMGC104 was not sold in comparable quantities to model KMGC109A and (2) model KMGC104 sales were not sold in the ordinary course of trade. Plaintiffs contend that the use of model KMGC104 violates the antidumping law, because 19 U.S.C. § 1677b precludes the use of sales outside the ordinary course of trade in determining foreign market value. Plaintiffs point to the existence of small quantity/high price sales as sufficient to suggest that these sales were outside the ordinary course of trade. Plaintiffs further argue that Commerce erroneously concluded that information submitted by Murata to corroborate the occurrence of a clerical error, must be rejected. Murata claims that this clerical error resulted in the failure of model KMGC104 sales being properly labelled as sample sales.

Commerce claims that it properly compared sales of model KMGC104 with sales of model KMGC109A since it used the home sales of the model that Murata listed in its Questionnaire Response as the most suitable match for U.S. sales of KMGC109A. Commerce contends that there is insufficient information on the record to support Murata's claim that the sales of KMGC104 were not made in the ordinary course of trade. Commerce argues that it acted within its discretion in rejecting the factual information that Murata attempted to submit on January 8, 1992, as the submission was outside the time limits provided in 19 C.F.R. § 353.31(a)(1)(ii).

STANDARD OF REVIEW

The standard of review in this action is whether the final results are supported by substantial evidence on the record and are otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1988). "Substantial evidence is something more than a `mere scintilla,' and must be enough reasonably to support a conclusion." Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff'd, 5 Fed.Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). "In addition, ITA's interpretation of the statute it administers must be reasonable and must not conflict with Congressional intent." Floral Trade Council v. United States, 15 CIT 497, ___, 775 F.Supp. 1492, 1495 (1991).

DISCUSSION

This Court has stated that "fair and accurate determinations are fundamental to the proper administration of our dumping laws" and that "courts have uniformly authorized the correction of any clerical errors which would affect the accuracy of a determination." NSK Ltd. and NSK Corp. v. United States, 16 CIT ___, ___, 798 F.Supp. 721, 724 (1992), citing Koyo Seiko Co. v. United States, 14 CIT 680, 682, 746 F.Supp. 1108, 1110 (1990). This Court has also noted that "Congress intended final determinations to be precisely that. Indeed, if determinations were constantly subject to amendment, `it would be difficult to answer the question as to when a final determination would ever be made.'" Koyo Seiko, 14 CIT at 682, 746 F.Supp. at 1110 (citation omitted) (emphasis in original). Furthermore, this Court has recognized that "plaintiffs must prepare their own data accurately. They cannot expect Commerce to be a surrogate to guarantee all of their submissions are correct." Sugiyama Chain Co., Ltd. et al. v. United States, 16 CIT ___, ___, 797 F.Supp. 989, 995 (1992).

In determining foreign market value, Commerce is required by 19 U.S.C. § 1677b (1988) to look at the price at which "such or similar merchandise" is sold in the principal markets of the country from which the merchandise is exported. The term "such or similar merchandise" is defined in 19 U.S.C. § 1677(16) (1988). This statute provides:

The term "such or similar merchandise" means merchandise in the first of the following categories in respect of which a determination for the purposes of part II of this subtitle can be satisfactorily made:

(A) The merchandise which is the subject of an investigation and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise.

(B) Merchandise — (i) produced in the same country and by the same person as the merchandise which is the subject of the investigation,

(ii) like that merchandise in component material or materials and in the purposes for which used, and

(iii) approximately equal in commercial value to that merchandise.

(C) Merchandise—

(i) produced in the same country and by the same person and of the same general class or kind as the merchandise which is the subject of the investigation,

(ii) like that merchandise in the purposes for which used, and

(iii) which the administering authority determines may reasonably be compared with that merchandise.

Plaintiff does not dispute that KMGC104 is such or similar merchandise with respect to KMGC109A. Although neither model KMGC104 nor KMGC106 is identical to model KMGC109A, both are identical to each other in physical dimensions, and costs of manufacture (product cost), and virtually identical in electrical specifications. In fact, Murata listed model KMGC104 as the paired filter sold in the home market during the period of review which was most similar to model KMGC109A sold in the United States. Paired filter model KMGC106 was listed by Murata as its second choice home market model. Murata now claims that...