Emerson Power Transmission Corp. v. US, Slip Op. 95-155. Court No. 92-07-00480.
| Decision Date | 01 September 1995 |
| Docket Number | Slip Op. 95-155. Court No. 92-07-00480. |
| Citation | 903 F. Supp. 48,19 CIT 1154 |
| Parties | EMERSON POWER TRANSMISSION CORPORATION, Plaintiff, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
COPYRIGHT MATERIAL OMITTED
Baker & McKenzie (Kevin M. O'Brien and Michael A. Lawrence), Washington, DC, for plaintiff.
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: Stephen J. Claeys and David J. Ross, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
Frederick L. Ikenson, P.C., Washington, DC (Frederick L. Ikenson, Larry Hampel, Silver Springs, MD, and Joseph A. Perna, V, Springfield, PA), for defendant-intervenor Federal-Mogul Corporation.
Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr., John M. Breen and Patrick J. McDonough), Washington, DC, for defendant-intervenor The Torrington Company.
Plaintiff Emerson Power Transmission Corporation is an importer of antifriction bearings ("AFBs"). Plaintiff challenges the final results of the administrative review issued by the United States Department of Commerce, International Trade Administration ("Commerce"), concerning AFBs and parts thereof from Japan. See 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 (June 24, 1992).
On June 28, 1991, Commerce initiated an administrative review of the antidumping duty order on ball bearings, cylindrical roller bearings, spherical plain bearings, and parts thereof from Japan, for the period of May 1, 1990 to April 30, 1991. 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 (June 28, 1991).
On March 31, 1992, Commerce published the preliminary determination of its second administrative reviews, for the period of May 1, 1990 to April 30, 1991. 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 (March 31, 1992).
On June 24, 1992, Commerce published the final results of its second administrative reviews. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et al.; Final Results of Antidumping Duty Administrative Reviews, 57 Fed.Reg. 28,360 (June 24, 1992).
Emerson moves pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record, alleging the following actions by Commerce were unsupported by substantial evidence on the agency record and not in accordance with law: (1) use of best information available ("BIA") where Nippon Pillow Block Sales Co. ("Nippon") failed to provide home market sales data; and (2) use of "all others" rate under second-tier BIA to compute the dumping margin for Nippon.
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 the law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is 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, 217, 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 the 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).
Emerson contends that Commerce improperly resorted to BIA to calculate Nippon's antidumping margin rate. According to Emerson, Nippon submitted all of the information requested by Commerce, including the home market sales data. Memorandum in Support of Plaintiff's Motion for Judgment on the Agency Record ("Plaintiff's Brief") at 10. Emerson asserts that Nippon complied with the instructions in the questionnaire supplied by Commerce requiring Nippon to report its home market sales. The questionnaire, as amended, instructed:
Questionnaire, PR Document No. 26 at 12-13 ("Questionnaire"), amended by Questionnaire Clarifications/Corrections, PR Document No. 31 at 2. Emerson claims that Nippon correctly interpreted the above instructions to require Nippon to report home market sales for only those months corresponding to the months in which Nippon reported United States exporter's sales price ("ESP") sales. Plaintiff's Brief at 7. Emerson supports the methodology used by Nippon to report home market sales, whereby, if there were no home market sales in the sample month corresponding to the ESP sale during that month, Nippon reported home market sales in either the prior sample month or the immediately following sample month. Plaintiff's Brief at 15.
According to Emerson, Nippon also correctly reported home market sales for purposes of comparing them to purchase price ("PP") sales. Emerson maintains that since PP sales were reported in their entirety, as opposed to for selected sampled months, Nippon correctly reported home market sales in the same months for the same bearing families as the months in which it reported PP sales. Emerson maintains that Nippon provided sufficient information since if no home market sales were made in the same month as PP sales, Nippon reported home market sales from either 90 days prior to the PP sale or 60 days subsequent to the PP sale. Id. at 15-16. Emerson asserts that the 90/60-day methodology used by Nippon was consistent with both the instructions in the questionnaire and the methodology used by Commerce in the first administrative review. Id. at 16-17.
Emerson further suggests that even if Nippon did not comply with the instructions in the questionnaire, Nippon's interpretation was reasonable. Id. at 17.
According to Emerson, even if Nippon's interpretation were unreasonable, Commerce should not have completely rejected the questionnaire response in favor of using BIA. Id. at 18. Emerson concedes that the information requested by Commerce would be necessary to compute annual averages to determine foreign market value (FMV). Id. at 20. Emerson maintains, however, that the data supplied by Nippon was sufficient to compute monthly averages and, if used by Commerce, would yield more accurate results. Id.
Emerson also asserts that Commerce should not have rejected Nippon's submission of the missing data on March 6, 1992 as being unsolicited and untimely. Id. at 21. Conceding that Nippon submitted the information after regulatory guidelines and that Commerce did not request the information, Emerson argues that Commerce should have requested the information. Id. at 22.
Commerce responds that it correctly resorted to use of BIA, because Nippon failed to report approximately 80% of its home market sales. Defendant's Memorandum in Opposition to Plaintiff's Motion for Judgment on the Agency Record ("Defendant's Brief") at 22. See also Final Results, 57 Fed.Reg. at 28,380 (Comment 1). Commerce's position is that Nippon did not comply with Commerce's request for information. Defendant's Brief at 23. In addition, Commerce asserts that the questionnaire instructions did not limit the home market sales reporting requirement to only those sales contemporaneous to Unites States sales. Id. at 24.
Commerce contends that it notified Nippon and all interested parties of its intent to use annual-weighted average sales to compute FMV, and to eliminate the 90/60-day methodology for the second administrative review by letter dated August 1, 1991. Id. at 32. See also PR Document No. 10. Commerce further argues that even if Nippon believed it only had to report contemporaneous sales, the glossary accompanying the questionnaire defined "contemporaneous sales" for annual average foreign market sales as follows:
If we determine that it is appropriate to use annual weighted-average home market prices ... contemporaneous sales are sales in any month of the 12-month review period (or the sample months in the period if HM ... sampling is applicable for that class or kind).
Id. at 32 (emphasis supplied). See also Questionnaire at 39. Commerce maintains that the methodology used by Nippon was inconsistent with the above definition.
In addition, Commerce asserts that if Nippon found the questionnaire instructions to be ambiguous, it should have complied with the directions contained in the cover letters accompanying both the questionnaire and the corrections by contacting Commerce with any questions. Defendant's Brief at 35. Commerce also argues that the instructions could not have been unclear since all of the other respondents...
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