Fujitsu General Ltd. v. U.S.

• Decision Date: 03 July 1996
• Docket Number: No. 95-1343,95-1343
• Parties: FUJITSU GENERAL LIMITED, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1034

88 F.3d 1034

18 ITRD 1419

FUJITSU GENERAL LIMITED, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 95-1343.

United States Court of Appeals Federal Circuit.

July 3, 1996.

Paul A. Horowitz, Siegel, Mandell & Davidson, P.C., New York City, argued for plaintiff-appellant. With him on the brief was Brian S. Goldstein.

Jeanne E. Davidson, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued for defendant-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director. Of counsel were Velta A. Melnbrencis, Department of Justice, and Robert J. Heilferty, Attorney-Advisor, Department of Commerce, Washington, D.C.

Before MICHEL and PLAGER, Circuit Judges, and SKELTON, Senior Circuit Judge.

MICHEL, Circuit Judge.

Fujitsu General Limited ("FGL") appeals the March 14, 1995 decision of the United States Court of International Trade, Fujitsu General Ltd. v. United States, 883 F.Supp. 728 (Ct. Int'l Trade 1995), sustaining certain determinations made by the International Trade Administration of the United States Department of Commerce ("Commerce") in connection with continuing orders for anti-dumping duties in Television Receivers, Monochrome and Color, from Japan, 56 Fed.Reg. 5,392 (Dep't Comm.1991) (final admin. reviews) ("Final Results") as modified by the Final Results of Redetermination Pursuant to Court Remand filed with the Court of International Trade on March 28, 1994 ("Remand Determination"). The appeal was submitted for decision after oral argument on February 8, 1996. Because FGL has failed to show reversible error of either a legal or factual nature, we affirm.

BACKGROUND

The Final Results were based on three administrative reviews of an antidumping duty order covering television receivers, monochrome and color, from Japan, sold by FGL in the United States. The three reviews are: the eighth review, covering the period from March 1, 1986 to February 28, 1987; the ninth review, covering the period from March 1, 1987 to February 29, 1988; and the eleventh review, covering the period March 1, 1989 to February 28, 1990.

FGL sued in the Court of International Trade, challenging the determinations made in the Final Results. Commerce filed a motion requesting that the case be remanded to it with respect to seven of the issues raised, which motion the Court of International Trade granted on May 12, 1993. After the Remand Determination, issued on March 28, 1994, FGL renewed several claims before the Court of International Trade challenging Commerce's decision: (1) to use annual weighted-average cost of production ("COP") rather than monthly or quarterly weighted-average COP and to exclude below-cost sales of models VA-191.S and 19V-S1.B; (2) to use constructed value in lieu of third country sales in calculating the foreign market value ("FMV") for certain television receiver models with below COP home market sales; (3) to calculate the imputed interest adjustment to exporter's sales price based on actual time in inventory and actual value; and (4) to deny FGL's claim for a level of trade adjustment as untimely ¹.

COMMERCE'S DETERMINATIONS

I. Sales Below Cost of Production

In order to compute antidumping duties, the FMV of the imported product is first calculated. In the Final Results, Commerce concluded that some of FGL's home market

sales of television models VA-191.S, VA-53.R, and 19V-S1.B were at prices below the COP and thus excluded those sales from the computation of the FMV. In addition, Commerce excluded from the FMV calculation all sales of a fourth model, V-45.S, pursuant to Commerce's "10/90/10" test which excludes all home market sales from a calculation of FMV if 90% of those sales were below COP. In the Remand Determination, Commerce concluded that its use of annual weighted-average COP and its exclusion of below-cost sales were justified, specifically finding that below COP sales of models VA-191.S and 19V-S1.B were not due to obsolescence or start-up costs.

II. Constructed Value v. Third Country Sales

In the Final Results, Commerce used a constructed value, instead of third country sales, to calculate the FMV for certain model television receivers: namely, those for which there were insufficient above COP sales in FGL's home market. Commerce did so even though FGL had submitted pricing data for its sales of these televisions to a third country, Canada, during the eighth review period. Commerce concluded that 19 U.S.C. § 1677b requires it to employ a constructed value for determining the FMV where the home market is viable (i.e., there is a sufficient number of sales) but where the sales are disqualified as below COP.

III. Imputed Interest Adjustment

FGL made two types of sales in the United States during the eighth review period: Exporter Sales Price ("ESP") sales, to its U.S. subsidiary, Teknika Electronics Corp. ("Teknika"); and Purchase Price ("PP") sales to unrelated U.S. distributors. In the Final Results, Commerce made a downward adjustment to the ESP based on an imputed interest expense for the time that goods remained in Teknika's inventory. Commerce regularly does so in order to adjust for the lost opportunity cost incurred for merchandise purchased and held in inventory. In the present case, Commerce calculated the imputed interest adjustment on FGL's ESP sales through Teknika according to the actual number of days that the goods remained in inventory and at their actual value, reasoning that method yielded the most accurate results.

IV. Level of Trade Adjustment

Finally, FGL's sales to the United States were to wholesalers, either Teknika or unrelated distributors, whereas FGL's home market sales were to retail traders. In its December 9, 1987, questionnaire response regarding home market and U.S. sales, FGL reported that it sold to wholesalers in the United States and retailers in the home market, but neither requested a corresponding adjustment based on the differing levels of trade, nor provided any scheme for computing such a level of trade adjustment. FGL first contended in its pre-hearing briefs that Commerce was required to grant an adjustment for differences in the levels of trade because of the different types of buyers. In the Final Results, Commerce rejected FGL's request for a level of trade adjustment as untimely.

COURT OF INTERNATIONAL TRADE RULINGS

On March 14, 1995, the Court of International Trade, after considering the submissions of the parties and the administrative record, issued its decision sustaining all of Commerce's challenged determinations and dismissing FGL's action. The Court of International Trade adopted Commerce's reasoning with respect to each issue and, in addition, found that FGL failed to provide sufficient information to support its claim for a level of trade adjustment.

FGL appeals, contending that the Court of International Trade erred in sustaining Commerce's decisions to exclude as below COP sales of certain models from its calculation of FMV, to use an actual time in inventory to calculate the imputed interest adjustment to ESP and to refuse an adjustment for the differences in levels of trade for lack of timeliness, because, FGL argues, the determinations were unsupported by substantial evidence on the record and otherwise not in accordance with law. In addition, FGL contends that the Court of International Trade erred in sustaining Commerce's decisions to

use constructed value, rather than third country sales, to calculate FMV because the determination was based on an improper interpretation of the governing statute. ²

STANDARD OF REVIEW

In reviewing injury, antidumping, and countervailing duty investigations and determinations, the Court of International Trade must sustain "any determination, finding or conclusion found" by Commerce 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). "However, '[t]o determine whether the Court of International Trade correctly applied [its] standard [of review] in reaching its decision, this court must apply anew the statute's express standard of review to the agency's determination.' " NEC Home Elecs., Ltd. v. United States, 54 F.3d 736, 742 (Fed.Cir.1995) (citing PPG Indus., Inc. v. United States, 978 F.2d 1232, 1236 (Fed.Cir.1992)). That means we review the underlying Commerce determinations to see if they are supported by substantial evidence. Substantial evidence "means such relevant evidence as a reasonable mind might accept to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951).

The proper interpretation of the governing statutes is reviewed de novo. Zenith Elecs. Corp. v. United States, 77 F.3d 426, 429 (Fed.Cir.1996); Koyo Seiko Co., Ltd. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994). However, where Congress has failed to provide clear guidance on an issue, we defer to the interpretation Commerce has given its own governing statute. See Zenith, 77 F.3d at 430 ("[I]f there is no unambiguously expressed congressional intent, we must interpret the statute with deference to Commerce's interpretation...."); Koyo Seiko, 36 F.3d at 1573 ("In a situation where Congress has not provided clear guidance on an issue, Chevron requires us to defer to the agency's interpretation of its own statute as long as that interpretation is reasonable."). "In antidumping cases, we accord substantial deference to Commerce's statutory interpretation, as the International Trade Administration is the 'master' of the antidumping laws." Torrington Co. v. United States., 68 F.3d 1347, 1351 (Fed.Cir.1995).

ANALYSIS

I. Sales Below Cost of Production

FGL contends that Commerce improperly calculated COP and therefore inappropriately excluded certain sales from FMV. First, FGL argues, Commerce's use of annual weighted-average COP...