829 F.Supp. 1371 (CIT. 1993), 92-02-00108, Outokumpu Copper Rolled Products AB v. United States

Docket Nº:92-02-00108.
Citation:829 F.Supp. 1371
Party Name:OUTOKUMPU COPPER ROLLED PRODUCTS AB and Outokumpu Copper (USA) Inc., Plaintiffs, v. UNITED STATES of America, et al., Defendants, and Hussey Copper, Ltd., et al., Defendant-Intervenors.
Case Date:August 12, 1993
Court:Court of International Trade
 
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Page 1371

829 F.Supp. 1371 (CIT. 1993)

OUTOKUMPU COPPER ROLLED PRODUCTS AB and Outokumpu Copper (USA) Inc., Plaintiffs,

v.

UNITED STATES of America, et al., Defendants,

and

Hussey Copper, Ltd., et al., Defendant-Intervenors.

No. 92-02-00108.

United States Court of International Trade.

Aug. 12, 1993

Page 1372

Winthrop, Stimson, Putnam & Roberts, Thomas V. Vakerics, Mark A. Monborne, and David S. Christy, Jr., Washington, DC, for plaintiffs Outokumpu Copper Rolled Products AB and Outokumpu Copper (USA) Inc.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Department of Justice, A. David Lafer and Marc E. Montalbine, Linda S. Chang, Of Counsel, Attorney-Advisor, Office of the Chief Counsel for Import

Page 1373

Admin., U.S. Dept. of Commerce, Washington, DC, for defendants.

Collier, Shannon, Rill & Scott, David A. Hartquist, Jeffrey S. Beckington, Kathleen Weaver Cannon, and Mary T. Staley, Washington, DC, for defendant-intervenors.

MEMORANDUM OPINION

GOLDBERG, Judge:

This action comes before the court on plaintiffs' and defendant-intervenors' motions for judgment upon the agency record and for remand. The parties challenge the final results of the second and third administrative reviews by the United States Department of Commerce, International Trade Administration ("Commerce"), issued jointly in Brass Sheet and Strip from Sweden, 57 Fed.Reg. 2706 (Dep't Comm.1992) (final admin. reviews). The court sustains Commerce's determination in part. The court also finds that Commerce's determination, in part, was not based upon substantial evidence or in accordance with law, and grants those relevant portions of plaintiffs' and defendant-intervenors' motions for judgment upon the agency record and requests for remand.

BACKGROUND

On March 10, 1986, certain defendant-intervenors in this action 1 and others filed an antidumping duty petition with Commerce alleging sales of brass sheet and strip from Sweden at less than fair value. On January 9, 1987, Commerce issued its final determination of sales at less than fair value regarding brass sheet and strip from Sweden, and found a dumping margin of 9.49 percent by plaintiff Outokumpu Copper Rolled Products AB ("Outokumpu AB") 2 . See Brass Sheet and Strip from Sweden, 52 Fed.Reg. 819 (Dep't Comm.1987) (final determination). On March 6, 1987, Commerce entered its antidumping duty order. See Brass Sheet and Strip from Sweden, 52 Fed.Reg. 6998 (Dep't Comm.1987) (antidumping duty order).

Commerce next issued the final results of its first administrative review of the antidumping order, which encompassed the period of August 22, 1986 through February 29, 1988. See Brass Sheet and Strip from Sweden, 55 Fed.Reg. 49,317 (1990), as amended 56 Fed.Reg. 21,178 (1991). Subsequently, on March 1, 1989 and March 30, 1990, Outokumpu AB requested that Commerce conduct administrative reviews for the periods of March 1, 1988 through February 28, 1989, and from March 1, 1989 through February 28, 1990. Commerce's final results of these second and third reviews are the subject of this consolidated action.

After initiation of the second and third reviews, Commerce forwarded questionnaires to Outokumpu AB concerning numerous issues raised in both the second and third administrative reviews. Plaintiffs submitted responses in July, 1989 and July, 1990. Commerce then forwarded to plaintiffs numerous supplemental questionnaires and requests for information seeking additional information, to which plaintiffs provided several responses.

Commerce next published a joint preliminary determination in both the second and third administrative reviews on June 28, 1991. See Brass Sheet and Strip from Sweden, 56 Fed.Reg. 29619 (Dep't Comm.1991) (prelim. admin. reviews). Subsequently, a joint public hearing was conducted by Commerce regarding both reviews on August 12, 1991. All parties filed pre-hearing briefs.

Commerce then issued its joint final results of the second and third reviews in Brass Sheet and Strip from Sweden, 57 Fed.Reg.

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2706 (Dep't Comm.1992) (final admin. reviews). In it, Commerce found that in certain sales of the subject merchandise, plaintiff Outokumpu AB sold merchandise directly to unrelated United States purchasers. In other closed consignment sales to unrelated United States purchasers, Outokumpu USA acted as the importer of record and selling agent in the United States for Outokumpu AB. Further, during the period of investigation, Outokumpu USA also received commission-like payments from Outokumpu AB, which Commerce classified as indirect selling expenses.

Commerce additionally found that while Outokumpu USA posted cash deposits in the amount of antidumping duties for United States sales of the merchandise, Outokumpu AB did not absorb any duties on behalf of an importer. Commerce also determined that in some transactions, Outokumpu AB paid freight charges for transportation of the merchandise from Sweden to the first United States destination. In other sales, Outokumpu AB paid freight costs for transportation from Sweden to a warehouse and on to the unrelated United States purchaser.

Finally, in calculating United States price for sales of the merchandise, Commerce utilized purchase price for certain sales while using exporter sales price for others.

Plaintiffs then filed two complaints with this court, the first challenging the second administrative results in Outokumpu Copper Rolled Products AB v. United States of America, Court No. 92-02-00108, and the other challenging the third review in Outokumpu Copper Rolled Products AB v. United States of America, Court No. 92-02-00109. Defendant-intervenors' motions to intervene as defendants in these cases were granted. Defendant-intervenors also objected to several aspects of the administrative reviews results, and filed with this court Hussey Copper Ltd. v. United States, Court No. 92-02-00110 concerning the second review, and Hussey Copper Ltd. v. United States, Court No. 92-02-00111 regarding the third review. Plaintiffs' motions to intervene as defendants in these actions were also granted. The court consolidated the actions under Outokumpu Copper Rolled Products AB v. United States of America, Consolidated Court No. 92-02-00108, on June 12, 1992.

Plaintiffs challenge only one aspect of Commerce's determination. They object to Commerce's reduction in the United States price for freight charges allegedly absorbed by Outokumpu AB, and its use of BIA to determine the amount of these freight costs.

Defendant-intervenors object to several aspects of Commerce's final results for its second and third reviews. First, they assert that Commerce failed to use best information available ("BIA") when calculating foreign market value. Defendant-intervenors also claim that Commerce incorrectly matched United States sales with foreign market sales, and that Commerce should have classified certain consignment sales as exporter's sales price rather than as purchase price transactions when calculating United States price. Defendant-intervenors additionally object to Commerce's determination that commissions paid by Outokumpu AB to Outokumpu USA were indirect selling expenses. Further, defendant-intervenors argue that Commerce incorrectly failed to reduce United States price in the amount of the antidumping duties which Outokumpu AB "absorbed or reimbursed" for its unrelated customers in the United States.

Finally, defendant-intervenors assert that Commerce made several computer programming errors that require correction. With limited exceptions, plaintiffs and defendants agree with defendant-intervenors in this regard. As a result, the court remands the action to Commerce for correction of all but one of these errors, and defendant-intervenors withdraw their challenge to the remaining aspect of Commerce's computer program concerning home market sales in the data base for the third review period.

DISCUSSION

A. Standard of Review

An antidumping determination will be overturned only if it is not supported 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 more than a mere scintilla. It means such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion." N.A.R., S.p.A. v. United States, 14 CIT 409, 412, 741 F.Supp. 936 (1990) (quoting Gold Star Co. v. United States, 12 CIT 707, 708-709, 692 F.Supp. 1382 (1988) aff'd sub nom. Samsung Elecs. Co. v. United States, 7 Fed.Cir. (T) 91, 873 F.2d 1427 (1989)).

Commerce is given "considerable deference in its interpretation of its statutory authority and the methodology employed in the administration of the antidumping law." Tehnoimportexport v. United States, 15 CIT 250, 253, 766 F.Supp. 1169 (1991) (citations omitted). Commerce's determination will not be overturned merely because the plaintiff can produce evidence in support of its own contentions and in opposition to the evidence supporting the agency's determination. Id.

B. Adjustments for Difference-in-Merchandise

The court will address defendant-intervenors' objections first. Defendant-intervenors argue first that Commerce failed to use BIA when calculating an aspect of foreign market value.

Title 19 United States Code, Section 1677b(a)(1)(A) (1988) provides that foreign market value of imported merchandise shall be the price, at the time such merchandise is first sold within the United States, at which such or similar merchandise is sold for home consumption. "Such or similar" merchandise is defined in 19 U.S.C. § 1677(16) (1988) as:

... merchandise in the first of the following categories in respect of...

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