Sugiyama Chain Co., Ltd. v. US, 92-12-00798. Slip Op. No. 95-32.

Decision Date03 March 1995
Docket NumberNo. 92-12-00798. Slip Op. No. 95-32.,92-12-00798. Slip Op. No. 95-32.
Citation880 F. Supp. 869,19 CIT 328
PartiesSUGIYAMA CHAIN CO., LTD., I & OC of Japan Co., Ltd. and HKK Chain Corp. of America, Plaintiffs, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

Arent Fox Kintner Plotkin & Kahn, Washington, DC (Patrick F. O'Leary), for plaintiffs.

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

CARMAN, Judge:

Introduction

In an opinion and order of this court, captioned Sugiyama Chain Co., Ltd., I & OC of Japan Co., Ltd., and HKK Chain Corp. of America v. United States, 18 CIT ___, 865 F.Supp. 843 (1994), the Department of Commerce's ("Commerce") Final Results of Administrative Review of the antidumping finding on roller chain, other than bicycle, from Japan, Roller Chain, Other Than Bicycle, From Japan, 57 Fed.Reg. 56,319 (Dep't Comm.1992) (final results), as amended by Roller Chain, Other Than Bicycle, From Japan, 57 Fed.Reg. 58,285 (Dep't Comm.1992) (final results), covering the review period from April 1, 1990 to March 31, 1991 ("Final Results"), was sustained in part and remanded in part.

The court remanded to Commerce, in part, for three purposes: (1) at the request of Commerce, for reexamination of its selection of the best information available ("BIA") for Sugiyama Chain Co., Ltd.'s ("Sugiyama") unmatched sales transactions; (2) at the request of Commerce, for elimination of computer programming errors which resulted in differences in merchandise adjustments with respect to sales of identical models; and (3) at plaintiffs' request, to address whether a comparison of U.S. sales to I & OC of Japan Co., Ltd. ("I & OC") with home market sales by "Companies E and H" to their respective customers merits a level of trade adjustment.

On remand, Commerce eliminated the computer programming errors which resulted in differences-in-merchandise adjustments when comparing identical models. Plaintiffs have advanced no objection to that aspect of the Remand Determination.1 Currently before the court are plaintiffs' objections to Commerce's selection of BIA for Sugiyama's unmatched sales transactions2 and rejection of Sugiyama's claim for a level-of-trade adjustment.

For the following reasons, plaintiffs' objections to Commerce's BIA selection and methodology are rejected and the Remand Determination is sustained to that extent. As to plaintiffs' objection that Commerce again erred in rejecting Sugiyama's claim for a level-of-trade adjustment, the court again remands to Commerce for reconsideration of the information of record concerning the channels of trade, home market selling expenses and their impact on price comparability, and if appropriate, Sugiyama's proposed alternative methodologies for quantifying the adjustment.

Best information available

Sugiyama is a Japanese manufacturer/exporter subject to the 1973 antidumping finding on roller chain, Roller Chain, Other Than Bicycle, From Japan, 38 Fed.Reg. 9226 (1973). Commerce's Final Results of the administrative review of the antidumping order, supra, calculated a partial BIA rate of dumping margin for Sugiyama for the period April 1, 1990 through March 31, 1991 at 12.68 percent. Such BIA rate represented the highest rate calculated for a respondent in the review, namely Hitachi.

As directed by the court in Slip Op. 94-122, on remand Commerce reexamined its selection of BIA for unmatched U.S. sales transactions for Sugiyama. Commerce determined that the partial BIA rate of 12.68 percent determined in the Final Results of the administrative review was inappropriate. Commerce increased the partial BIA rate for unmatched sales threefold from 12.68 percent to 43.29 percent. The higher rate was calculated in accordance with Commerce's partial BIA policy at the time of publication of the Final Results by using "the highest rate ... ever applicable to the firm for the same class or kind of merchandise from either the less-than-fair value investigation or a prior administrative review."3 The highest margin of dumping rate ever previously assigned to Sugiyama was the BIA rate assigned during the April 1, 1985-March 31, 1986 review period of 43.29 percent. Remand Results, at 3, 6-7.

As to Commerce's reexamination and selection of BIA on remand, given Sugiyama's refusal during the administrative review to respond to Commerce's request in its questionnaire for constructed value data in the event there were insufficient sales of such or similar merchandise in the home market, Commerce refused to make an exception for Sugiyama from its well-established 90/60 day guideline for identifying reasonably contemporaneous home market sales for comparison with U.S. sales.4 Commerce found inter alia that there was not a large volume of transactions and rejected departing from its 90/60 day guideline as BIA. Remand Determination, at 4. As explained by Commerce in the Remand Determination:

* * * it is a well-established policy for the Department to either base FMV on monthly weighted-average prices, using the 90/60 day guideline, or, in cases with a large volume of transactions, to calculate annual average FMVs where the results of the Department's rigorous tests indicate stability across all sales. In this case there is not a large number of transactions. Therefore, the Department applied its contemporaneity guideline, whereby the Department uses a monthly weighted average of home-market or third-country prices of the comparison merchandise in the month of the U.S. sale. If there are no home-market or third-country sales in the month of the U.S. sale, we then use sales in the prior month. If there are still no sales, we then search in the following order, the second month before, the third month before, and month after, and, finally, the second month after, the U.S. sale. Where there are no sales of such or similar merchandise within the 90/60 guideline to use as comparators to U.S. sales, the Department calculates a constructed value to establish FMV. If constructed value information has not been submitted, the Department based FMV on BIA. The Department has consistently applied this 90/60 day guideline as standard practice.

Remand Results, at 3-4 (emphasis added) (administrative citations omitted).

Continuing, Commerce further explained its rational for refusing to depart from its 90/60 day guideline:

* * * when we conducted our analysis, we were unable to find contemporaneous sales of such or similar merchandise for certain U.S. sales. Because there was no constructed value information on the record, consistent with our practice, we relied on BIA for those U.S. sales. Thus, while Sugiyama acknowledged the existence of and its understanding of the Department's well-established 90/60 day guideline in its questionnaire response, it failed to provide constructed value information. For these reasons, it is inappropriate to depart from out adherence to the 90/60 day guideline.

Id. at 5.

Sugiyama maintains that its highest previous rate "has only a tenuous link to Sugiyama Chain's margins in the instant review" (Pls.' Br. at 3); that "in the instant case, there is clearly more probative information which can qualify as BIA," (Id.); that Commerce improperly refused to make an exception in the case of Sugiyama from the 90/60 day guideline because price and conditions of sale for home market models were fixed throughout the period of review, conformed to Commerce's "rigorous tests," and an expanded contemporaneity methodology would be more probative of current margins of dumping than Sugiyama's highest previous rate. Based on the foregoing analysis, plaintiffs argue that the information Commerce selected as the "best information available" — Sugiyama's previous highest rate — is unsupported by substantial evidence on the record and is arbitrary and capricious.

Specifically, plaintiffs posit that to obtain BIA probative of its current margins of dumping, Commerce should have expanded upon the 90/60 day time-frame to encompass U.S. sales that did not have a match in the home market within the strict 90/60 day guideline period, but which still fell within the period of review. Plaintiffs insist that annual average FMV data, although not based on sales data strictly within the 90/60 day guideline, is still more probative BIA reflecting Sugiyama's margins of dumping during the period of review than Sugiyama's previous highest margin of dumping, as assigned by Commerce on remand.

The issue then is whether on remand, Commerce had the discretion to refuse to depart from its standard practice of applying the 90/60 day contemporaneity guideline for comparative home market sales and, absent sales of such or similar merchandise in the home market falling within the guideline and failure of Sugiyama to provide constructed value information, to calculate Sugiyama's partial BIA rate for unmatched sales on the basis of the company's own previous highest dumping margin in compliance with the policy in effect on the date of publication of the Final Results.

The court agrees with Commerce on the BIA issue.

Commerce found that while "Sugiyama acknowledged the existence of and its understanding of the Department's well-established 90/60 day guideline in its response, it failed to provide constructed value information." Remand Results, at 5. The court completely agrees with Commerce's position that under these circumstances the Department had the discretion to adhere to the 90/60 day guideline, and absent contemporaneous comparative sales data meeting the guideline or the constructed value information requested of Sugiyama, to use Sugiyama's highest previous rate as BIA. The court further finds that the information relied upon by Commerce as BIA and its...

To continue reading

Request your trial
5 cases
  • Sanyo Elec. Co., Ltd. v. U.S.
    • United States
    • U.S. Court of International Trade
    • June 4, 1999
    ...expenses on sales to different levels of trade." Id.; Final Redetermination at 9-10 (citing, inter alia, Sugiyama Chain Co., Ltd. v. United States, 880 F.Supp. 869 (1995)).16 In the Final Results, Commerce rejected Sanyo's claim for a level of trade adjustment. See Final Results, 52 Fed.Reg......
  • Sanyo Elec. Co., Ltd. v. U.S.
    • United States
    • U.S. Court of International Trade
    • April 6, 1998
    ...agency has acted arbitrarily. NTN Bearing Corp. of America v. United States, 903 F.Supp. 62, 67 (CIT 1995); Sugiyama Chain Co., Ltd. v. United States, 880 F.Supp. 869, 873 (CIT 1995) ("Obviously, Commerce cannot be permitted to act arbitrarily or capriciously in its choice of methodology.")......
  • NTN Bearing Corp. of America v. US
    • United States
    • U.S. Court of International Trade
    • September 6, 1995
    ...determination under judicial review, cannot supply what is deficient in the Final Results. See Sugiyama Chain Co. v. United States, 19 CIT ___, ___, 880 F.Supp. 869, 874-75 (1995). Therefore, to afford Commerce an additional opportunity to address the level of trade issue, the Court remands......
  • The Timken Co. v. US
    • United States
    • U.S. Court of International Trade
    • August 28, 1996
    ...Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962); see also Sugiyama Chain Co. v. United States, 19 CIT ___, ___, 880 F.Supp. 869, 874-75 (1995). Commerce gave no indication on the record of its reasons for applying the scope ruling prospectively. There......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT