852 F.Supp. 1103 (CIT. 1994), 92-10-00661, Sugiyama Chain Co., Ltd. v. United States

Docket Nº:Court No. 92-10-00661.
Citation:852 F.Supp. 1103
Party Name:SUGIYAMA CHAIN CO., LTD., I & OC of Japan Co., Ltd., and HKK Chain Corp. of America, Plaintiffs, v. UNITED STATES, Defendant.
Case Date:May 12, 1994
Court:Court of International Trade

Page 1103

852 F.Supp. 1103 (CIT. 1994)

SUGIYAMA CHAIN CO., LTD., I & OC of Japan Co., Ltd., and HKK Chain Corp. of America, Plaintiffs,

v.

UNITED STATES, Defendant.

Court No. 92-10-00661.

Slip Op. 94-78.

United States Court of International Trade.

May 12, 1994

Page 1104

[Copyrighted Material Omitted]

Page 1105

Arent Fox Kintner Plotkin & Kahn, Patrick F. O'Leary and Steve Aida, Washington, DC, for plaintiffs.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Civ. Div., Commercial Litigation Branch, U.S. Dept. of Justice, Washington, DC (Michael S. Kane, Patrick V. Gallagher, Jr., Attorney-Advisor, Office of the Chief Counsel for Import Administration, U.S. Dept. of Commerce, of counsel), for defendant.

OPINION

CARMAN, Judge:

Plaintiffs move for judgment upon the agency record pursuant to Rule 56.2 of this Court. Plaintiffs contest the Department of Commerce's final results in Roller Chain, Other than Bicycle, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 43,697 (1992) (Final Results). The Final Results cover Sugiyama Chain, a manufacturer/exporter of roller chain, and various Japanese exporters of Sugiyama products to the United States. Id. The product at issue is described in the Final Results as "chain, with or without attachments, whether or not plated or coated, and whether or not manufactured to American or British standards, which is used for power transmission and/or conveyance." Id. The periods of review are April 1, 1981 through March 31, 1987 and April 1, 1989 through March 31, 1990. Id. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (1988).

BACKGROUND

Commerce's original dumping finding has been in effect since April 12, 1973. Roller Chain, Other Than Bicycle, From Japan, 38 Fed.Reg. 9226 (1973). Commerce initiated but did not complete reviews of roller chain imported from Sugiyama during the period 1981-1982 and 1982-1983. On October 23, 1985, counsel for the American Chain Association (ACA) requested these reviews be completed and reviews for the 1983-1984 and 1984-1985 periods be initiated. App. 5 Doc. 1. 1 Commerce undertook both these tasks on July 9, 1986. Initiation of Antidumping

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Duty Administrative Reviews, 51 Fed.Reg. 24,883 (1986) (Initiation).

On April 30, 1986, counsel for ACA requested Commerce initiate a review of roller chain imported from Sugiyama during the 1985-1986 period. App. 5 Doc. 2. Commerce initiated this review on May 20, 1986. Initiation, 51 Fed.Reg. at 18,475. Subsequent to initiation, Sugiyama's counsel prepared a memorandum for his files in which he states he orally communicated to a Commerce analyst his allegations that ACA's counsel was not authorized to request the 1985-1986 review. R. 4 Fr. 211. Plaintiffs' counsel submitted this memorandum to Commerce along with an affidavit which certified the accuracy of the information as it was personally known to counsel. R. 4 Fr. 210. In response to Commerce's request for a voluntary statement regarding its counsel's authority to request the 1985-1986 review, ACA stated "Covington & Burling represents the American Chain Association and that the requests for section 751 review filed by Covington & Burling in the above-referenced matter have been duly authorized by the American Chain Association in accordance with Association policy." App. 5 Doc. 4. Commerce accepted this statement and proceeded with the review, but was unable to successfully verify Sugiyama's submissions for the 1985-1986 review. Final Results, 57 Fed.Reg. at 43,697.

On April 30, 1987, the ACA requested Commerce initiate an administrative review for the 1986-1987 review period. App. 5 Doc. 6. In response, Commerce published its notice of initiation for this review on May 20, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 52 Fed.Reg. 18,937 (1987). On September 17, 1987, however, the ACA withdrew its request for a review of Sugiyama's entries during the 1986-1987 period. App. 5 Doc. 7; Final Results, 57 Fed.Reg. at 43,700. ACA also withdrew its requests for the 1981-1982 and 1982-1983 reviews on October 2, 1990 2 and the 1985-1986 review on November 14 3 and December 6, 1990 4 (except for Sugiyama's distribution through I & OC). Rather than publish a notice of termination, Commerce decided to proceed with all of these reviews. Final Results, 57 Fed.Reg. at 43,701.

In December 1990, Commerce investigated whether Sugiyama was related to one of its home market distributors, [] ("X" for confidentiality purposes). Commerce informed Sugiyama in January 1991 of evidence which indicated Sugiyama and X were related parties within the meaning of 19 U.S.C. § 1677(13) (1988). Commerce advised Sugiyama this relationship could impact the administrative reviews and requested an explanation for Sugiyama's apparent misrepresentation of the relationship. After receiving Sugiyama's response which indicated there was no § 1677(13) relationship, Commerce investigated further and determined on July 16, 1991 that Sugiyama and X were related parties within the meaning of § 1677(13). Commerce notified Sugiyama of this determination through a July 19, 1991 deficiency letter which also requested further information concerning home market sales to unrelated customers for all seven reviews. Final Results, 57 Fed.Reg. at 43,697.

After receiving Sugiyama's deficiency submission, Commerce determined the submission was defective. Roller Chain, Other Than Bicycle, From Japan; Preliminary Results of Antidumping Duty Administrative Reviews, 57 Fed.Reg. 3745, 3746 (1992). Because it determined Sugiyama had significantly impeded the seven administrative reviews, Commerce assigned a best information available (BIA) rate of 43.29% representing the highest calculated rate from a previous roller chain review. Id.; see Roller Chain, Other Than Bicycle, From Japan; Final Results of Administrative Review of Antidumping Finding, 46 Fed.Reg. 44,488, 44,490-91 (1981). Commerce published the Final Results on September 22, 1992. In the Final Results Commerce concluded Sugiyama had substantially cooperated in all of the reviews except 1985-1986. Final Results, 57 Fed.Reg. at 43,703. Commerce, therefore,

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assigned BIA only to Sugiyama's unmatched sales in the other reviews at a rate of 15.92% for the 1981-1985 review periods, and 43.29% for the 1986-1987 and 1989-1990 periods. Id. With respect to the 1985-1986 review, Commerce assigned the 43.29% BIA rate to all sales. Id.

CONTENTIONS OF THE PARTIES

Plaintiffs contend Commerce should not have conducted a 1985-1986 review because the ACA's request for that review was invalid. Regardless of whether the Court holds the request was invalid, plaintiffs claim Commerce should have terminated the 1985-1986 review, as well as the 1981-1983 and 1986-1987 reviews, when the ACA withdrew its review requests. Plaintiffs also maintain Commerce improperly concluded it could not verify Sugiyama's 1985-1986 questionnaire response and used an improper methodology in the attempted verification. Additionally, plaintiffs claim Commerce's determination that Sugiyama had unmatched U.S. sales in the 1981-1985, 1986-1987 and 1989-1990 reviews was not based on substantial evidence on the record. Plaintiffs further contend Commerce's choice of BIA for the 1985-1987 and 1989-1990 reviews was not in accordance with law. Finally, plaintiffs complain Commerce failed to provide Sugiyama with adequate information in order for it to reproduce Commerce's calculations to determine whether Commerce committed any ministerial errors.

Commerce maintains there is no evidence on the record supporting plaintiffs' claim that ACA's 1985-1986 review request was invalid, and regardless, Commerce was statutorily required to conduct the review. Commerce asserts it was also statutorily required to conduct the 1981-1983, 1985-1986 and 1986-1987 reviews whether or not it recognized ACA's withdrawals of its requests for review. Commerce argues it properly determined Sugiyama failed verification in the 1985-1986 review. Commerce contends because Sugiyama misrepresented its relationship with its primary home market distributor, it properly determined Sugiyama had unmatched U.S. sales in the 1981-1985, 1986-1987 and 1989-1990 reviews. Commerce maintains it properly selected a BIA rate for Sugiyama's 1985-1987 reviews because Sugiyama provided Commerce with inaccurate, incomplete and untruthful information. Commerce responds to plaintiffs' final argument by denying any legal obligation to provide Sugiyama with a complete set of computer printouts showing all of Commerce's calculations.

Commerce agrees with plaintiffs on three issues and requests a remand to do the following: (1) reexamine its selection of BIA for the 1981-1985 reviews; (2) correct the computer programming errors in its constructed value calculations for the 1981-1983 reviews; and (3) determine whether certain alleged data input errors by Sugiyama in the 1989-1990 review warrant correction.

STANDARD OF REVIEW

In an action challenging Commerce's final results, this Court must decide whether Commerce's determination is supported by substantial evidence on the record and is 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).

The Court must accord substantial weight to the agency's interpretation of the statute it administers. American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986) (citations omitted). "An...

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