Yamaha Motor Co., Ltd. v. US, Slip Op. 95-185. Court No. 92-07-00471.

• Decision Date: 20 November 1995
• Docket Number: Slip Op. 95-185. Court No. 92-07-00471.
• Citation: 910 F. Supp. 679,19 CIT 1349
• Parties: YAMAHA MOTOR CO., LTD. and Yamaha Motor Corp., U.S.A., Plaintiffs, v. UNITED STATES, Defendant, The Torrington Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

910 F. Supp. 679

19 CIT 1349

YAMAHA MOTOR CO., LTD. and Yamaha Motor Corp., U.S.A., Plaintiffs, v. UNITED STATES, Defendant, The Torrington Company, Defendant-Intervenor.

Slip Op. 95-185. Court No. 92-07-00471.

United States Court of International Trade.

November 20, 1995.

Willkie Farr & Gallagher, Washington, DC (William J. Clinton, James P. Durling, Daniel R. Hunter, Robert H. Edwards, Jr. and Barbara K. Summers) for plaintiffs.

Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Marc E. Montalbine); of counsel: Thomas H. Fine and Stephen J. Claeys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.

Stewart and Stewart, Washington, DC (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., John M. Breen and Olufemi A. Areola), for defendant-intervenor.

OPINION

TSOUCALAS, Judge.

At issue in this action are certain aspects of the final determination of the United States Department of Commerce, International Trade Administration ("Commerce"), entitled Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et al.; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 57 Fed.Reg. 28,360 (1992), concerning imports made from May 1, 1990 through April 30, 1991.

Plaintiffs, Yamaha Motor Co., Ltd. and Yamaha Motor Corp., U.S.A. (collectively "Yamaha"), respectively exported and imported ball bearings, cylindrical roller bearings, spherical plain bearings, and parts thereof ("bearings" or "AFBs") from Japan during the period encompassed by the underlying administrative review. Yamaha alleges that the following errors by Commerce render the Final Results unsupported by substantial evidence and not in accordance with law: (1) disregard of information supplied by plaintiffs and resort to best information available ("BIA") to assess Yamaha's dumping margins, and (2) use of the "all others" rate from the original less than fair value ("LTFV") investigation as BIA. Yamaha moves for judgment on the agency record on these matters pursuant to Rule 56.2 of this Court.

Background

On May 15, 1989, Commerce published antidumping duty orders on AFBs from various countries, including Japan. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904 (1989).¹

On June 28, July 19 and August 14, 1991, Commerce initiated administrative reviews of those orders with respect to sixty-three manufacturers or exporters, including Yamaha Motor Company for the period May 1, 1990 through April 30, 1991. See 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, 56 Fed. Reg. 29,618 (1991); Initiation of Antidumping and Countervailing Duty Administrative Reviews, 56 Fed.Reg. 33,251 (1991); Initiation of Antidumping and Countervailing Duty Administrative Reviews, 56 Fed.Reg. 40,305 (1991).

On March 31, 1992, Commerce issued its preliminary determinations in the second administrative reviews. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 57 Fed.Reg. 10,868 (1992).²

On June 24, 1992, Commerce published one joint final determination for the nine administrative reviews. See Final Results, 57 Fed.Reg. at 28,360.

On July 15, 1992, Yamaha commenced this action, challenging the Final Results with respect to Japan.

On October 23, 1992, the Court granted The Torrington Company's ("Torrington") motion to intervene in this action.

On December 14, 1992, Commerce published amended Final Results, correcting certain clerical errors. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Sweden, and the United Kingdom; Amendment to Final Results of Antidumping Duty Administrative Reviews, 57 Fed. Reg. 59,080 (1992).

Discussion

The Court's jurisdiction in this action is derived from 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

The Court must uphold Commerce's final determination unless it 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 "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).

Statute provides that the antidumping duty margin equals "the amount by which the foreign market value exceeds the United States price for the merchandise." 19 U.S.C. § 1673 (1988). Although Commerce has discretion to determine the existence and the degree of a margin, it is required to make an "apples-to-apples" comparison between sales in the United States and the home market. See Torrington Co. v. United States, 44 F.3d 1572, 1580 (Fed.Cir. 1995). See also Smith-Corona Group v. United States, 713 F.2d 1568, 1571-73 (Fed. Cir.1983), cert denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). In accordance with this principle, Commerce "normally will calculate foreign market value and United States price based on sales at the same commercial level of trade." 19 C.F.R. § 353.58 (1992).

Generally, Commerce calculates FMV based on prices to the first unrelated party in the home market. See, e.g., Nihon Cement Co. v. United States, 17 CIT 400, 415, 1993 WL 185208 (1993) ("Commerce starts out with the first sale to an unrelated purchaser both in the United States market and in the foreign market"). Regulation provides that Commerce will only use related-party home market sales to compute FMV "if satisfied that the price is comparable to the price at which the producer or reseller sold such or similar merchandise to a person not related to the seller." 19 C.F.R. § 353.45(a) (1992); see Sugiyama Chain Co. v. United States, 18 CIT ___, ___, 852 F.Supp. 1103, 1113 (1994) (court agrees that 19 U.S.C. § 1677b(a)(3) (1988) allows Commerce to use related-party prices which pass a comparability test, but respondent must submit sufficient information for Commerce to conduct such a test). See also Mitsubishi Heavy Indus., Ltd. v. United States, 17 CIT 1024, 1028, 833 F.Supp. 919, 923 (1993) (Commerce must ascertain whether sales to related parties are at arm's length). Where arms-length sales are not demonstrated, Commerce "will calculate foreign market value based on sales of such or similar merchandise at the most comparable commercial level of trade." 19 C.F.R. § 353.58. For example, Commerce is permitted to base FMV upon sales by the related party to the first unrelated party. 19 U.S.C. § 1677b(a)(3) (1988); 19 C.F.R. § 353.45(b) (1992). Finally, where sales from different levels of trade are used to determine FMV and United States price, Commerce will "make appropriate adjustments for the level-of-trade differences affecting price comparability." 19 C.F.R. § 353.58. See also 19 U.S.C. § 1677b(a)(4)(B).

In addition, 19 U.S.C. § 1677e(c) (1988) authorizes Commerce to rely on BIA "whenever a party ... refuses or is unable to produce information requested in a timely manner and in the form required, or otherwise significantly impedes an investigation." Section 1677e(b) requires Commerce to use BIA "if the administering authority is unable to verify the accuracy of the information submitted." 19 U.S.C. § 1677e(b). The relevant regulation similarly provides:

The Secretary will use the best information available whenever the Secretary:

(1) Does not receive a complete, accurate, and timely response to the Secretary's request for factual information; or

(2) Is unable to verify, within the time specified, the accuracy and completeness of the factual information submitted.

19 C.F.R. § 353.37(a) (1992).

In this second administrative review, Commerce rejected information supplied by Yamaha and applied the "all others" rate from the LTFV investigation as best information available to assess a 45.83 percent dumping margin for Yamaha. Final Results, 57 Fed. Reg. at 28,361, 28,379. Commerce stated:

Although Yamaha provided some information, the quantity of this information was not sufficient or adequate to form a basis to calculate foreign market value. Therefore, we have relied exclusively upon BIA to determine Yamaha's dumping margin. Nevertheless, because Yamaha attempted to submit some information, we applied the second tier of BIA.

57 Fed.Reg. at 28,379.

Yamaha essentially presents two challenges to the propriety of Commerce's application of second tier BIA. Yamaha first challenges Commerce's asserted grounds for resorting to BIA. In the alternative, Yamaha contends that even if Commerce was justified in using BIA, it did not use the "best" information that was available on the record.

Commerce resorted to BIA because (a) Yamaha was unable to provide proof of payment for sales to related distributors in the home market; (b) Yamaha misrepresented its home market distribution system and failed to report sales in the home market at the proper level of trade; and (c) Yamaha's questionnaire response presented certain methodological problems. 57 Fed.Reg. at 28,379.

1. Asserted...