Koyo Seiko Co., Ltd. v. US

• Citation: 19 CIT 873,893 F. Supp. 52
• Decision Date: 15 June 1995
• Docket Number: 90-06-00309.,Slip Op. 95-111. Court No. 90-06-00300
• Parties: KOYO SEIKO CO., LTD. and Koyo Corporation of U.S.A., Plaintiffs, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor. NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

893 F. Supp. 52

19 CIT 873

KOYO SEIKO CO., LTD. and Koyo Corporation of U.S.A., Plaintiffs, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.

NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.

Slip Op. 95-111. Court Nos. 90-06-00300, 90-06-00309.

United States Court of International Trade.

June 15, 1995.

Powell, Goldstein, Frazer & Murphy, Washington, DC (Peter O. Suchman, Susan P. Strommer and Niall P. Meagher), for plaintiffs Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.

Donohue and Donohue, New York City (Joseph F. Donohue, Jr. and Kathleen C. Inguaggiato), for plaintiffs NSK Ltd. and NSK Corp.

Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Velta A. Melnbrencis, Asst. Director); of counsel: Joan L. MacKenzie, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.

Stewart and Stewart, Washington, DC (Terence P. Stewart, James R. Cannon, Jr. and John M. Breen), for defendant-intervenor The Timken Co.

OPINION

TSOUCALAS, Judge:

Plaintiffs Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Inc. and defendant-intervenor The Timken Company ("Timken") contest certain aspects of the Department of Commerce, International Trade Administration's ("Commerce"), redetermination on remand concerning Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review ("Final Results"), 55 Fed.Reg. 22,369 (1990). These Final Results cover the period from April 1, 1974 through July 31, 1980.

On May 10, 1994, the Court remanded, in part, the Final Results on tapered roller bearings ("TRBs") made in Japan by Koyo Seiko Co., Ltd. and distributed by its subsidiary, Koyo Corporation of U.S.A., Inc. (collectively "Koyo"), and by NSK Ltd., and distributed by its subsidiary, NSK Corporation (collectively "NSK"). See Koyo Seiko Co. v. United States and NSK Ltd. v. United States, 18 CIT ___, Slip Op. 94-75, 1994 WL 194124 (May 10, 1994) ("Koyo/NSK"). In Koyo/NSK, the Court ordered Commerce to redetermine the final dumping margins for entries made by Koyo between 1974-1977 and by NSK between 1974-1978, based on the complete record of Commerce's administrative review and on the Court's prior rulings in Court Nos. 90-0600300 and 90-0600309 and in the related case, Timken Co. v. United States, 16 CIT 429, 795 F.Supp. 438 (1992) ("Timken"). The Court's order was issued pursuant to a mandate, dated April 18, 1994, from the United States Court of Appeals for the Federal Circuit (CAFC).

BACKGROUND

Prior to the CAFC's order, there had been four Court remands concerning these Final Results. In Koyo Seiko Co. v. United States ("Koyo I"), 16 CIT 366, 796 F.Supp. 517 (1992), aff'd in part and rev'd in part, 20 F.3d 1160 (Fed.Cir.1994), and NSK Ltd. v. United States ("NSK"), 16 CIT 401, 794 F.Supp. 1156 (1992), rev'd in part, 20 F.3d 1160 (Fed.Cir.1994), the Court instructed Commerce to (1) liquidate entries made by Koyo between April 1, 1974 and September 30, 1977, and entries made by NSK between May 1, 1974 and March 31, 1978, according to master lists which had been issued prior to the date that jurisdiction over these proceedings was transferred from the Department of the Treasury ("Treasury") to Commerce; (2) recalculate margins for entries not covered by master lists which were entered between October 1, 1977 and March 31, 1979 for Koyo, and between April 1 to April 30, 1974 and April 1, 1978 to July 31, 1980 for NSK according to the three-criteria methodology for determining "such or similar" merchandise; (3) recalculate dumping duties for entries made by Koyo between April 1, 1978 through March 31, 1979, without reference to the investigation of sales at prices below the cost of production ("COP"); (4) apply the twenty percent cost cap at the end rather than at the beginning of the model match selection process; (5) include Koyo's data for net weights of certain TRBs in the calculation of U.S. Customs duties; and (6) add only 30 days to Koyo's shipping time when calculating an adjustment for U.S. inventory expenses. The CAFC reversed the Court on the master list issue and affirmed the Court regarding incorporation of Commerce's COP investigation findings with respect to Koyo's 1978-1979 TRB entries. See Koyo Seiko Co. v. United States, 20 F.3d at 1160.

In determining the remanded results pursuant to NSK, 16 CIT at 401, 794 F.Supp. at 1156, Commerce discovered and corrected a clerical computer programming error that prevented sales of NSK's U.S. cups and cones from being compared with sales of home market split sets. NSK contested this correction; however, the Court found that Commerce had acted properly and affirmed Commerce's redetermination pursuant to remand. See Koyo Seiko Co. v. United States, 17 CIT 131, 819 F.Supp. 1093 (1993), aff'd in part and rev'd in part on other grounds, 20 F.3d at 1160.

In Timken, 16 CIT at 429, 795 F.Supp. at 438, the Court again remanded the Final Results to Commerce to (1) use Koyo's verified per-unit export department expenses as best information available ("BIA") when calculating the exporter's sales price ("ESP") adjustment for export selling expenses; (2) apply the twenty percent cap on cost differences in accordance with Koyo, 16 CIT at 366, 796 F.Supp. at 517; and (3) eliminate application of the provisional assessment cap contained in 19 U.S.C. § 1673f(a) (1988), with respect to entries made by Koyo between June 5, 1974 to January 29, 1975 which were secured by bonds rather than by cash deposits.

In Koyo I, 16 CIT at 366, 796 F.Supp. at 527-31, the Court modified its judgment to allow Timken to supplement its allegation regarding below COP sales and to allow Commerce to consider this supplemental information in determining whether the dumping margins for the April 1, 1978 to March 31, 1979 period should be recalculated with reference to the investigation of below-cost-of-production sales. Subsequently, Commerce found sales below the cost of production and calculated new margins for Koyo.

Commerce submitted its remand results for NSK pursuant to NSK and Timken in August 1992, and for Koyo pursuant to Koyo, Timken and Koyo I in October 1992. The Court affirmed these results in their entirety. See Koyo Seiko Co., 17 CIT at ___, 819 F.Supp. at 1093. Timken appealed. The CAFC affirmed the Court's decision in part and reversed in part. See Koyo Seiko Co., 20 F.3d at 1160. Specifically, the CAFC (1) upheld the Court's affirmance of Commerce's incorporation of its COP investigation into the final results for Koyo's 1978-1979 TRB entries; (2) reversed the Court's decision to allow liquidation of Koyo's 1974-1977 and NSK's 1974-1978 TRB entries according to pre-existing Treasury master lists; and (3) remanded the Koyo/NSK cases for a redetermination of the final dumping margins for Koyo's 1974-1977 and NSK's 1974-1978 TRB entries. Koyo Seiko Co., 20 F.3d at 1164-68.

Redeterminations

On July 18, 1994, Commerce filed with this Court its Final Results of Redetermination Pursuant to Court Remand, Koyo/NSK, 18 CIT at ___, Slip Op. 94-75 ("Redetermination on Remand"). In redetermining margins for Koyo and NSK, Commerce employed the methodology used in the administrative review with the modifications previously ordered by the Court, to wit:

A. Recalculation of Antidumping Duties Using the Three-Criteria Methodology

In Koyo and NSK, the Court had ordered Commerce to conduct model-match analyses for entries made by Koyo between October 1, 1977 through March 31, 1979, and by NSK between April 1, 1978 and July 31, 1979 — using the three-criteria methodology in effect before 1987. These three criteria are: (1) outer diameter, (2) inner diameter, and (3) basic load rating. In the review, Commerce had used five criteria for the model match analysis. These criteria were comprised of the above-enumerated criteria plus "width" and "Y2" factor. For these remand results, Commerce recalculated the antidumping duty margins by comparing the sum of the values of the above-enumerated three physical criteria of commercially similar U.S. and home market models for Koyo's entries made between April 1, 1974 and September 30, 1977, and for NSK's entries made between June 6, 1974 and March 31, 1978, the entries which were covered by Treasury master lists. Redetermination on Remand at 6.

B. Recalculation of Antidumping Duties by Applying the Twenty-Percent Cost "Cap" Before the Three-Criteria Model Selection Process

As noted, Commerce, in the original review, had employed a five-criteria analysis to select the ten most similar home market models. Commerce had then compared the difference-in-merchandise costs, when available, of the U.S. model with the home market models to determine whether the home market models were of approximately equal commercial value to the U.S. model. If the differences in costs between the U.S. and the home market models exceeded 20%, Commerce determined that the home market model was not equal to the U.S. model in commercial value. Commerce then used constructed value as the basis of foreign market value ("FMV"), rather than comparing the U.S. model to the next most similar home market model based on the above noted criteria. Id. at 6-7.

Commerce had requested a remand to conduct the 20% difference-in-merchandise test prior to selecting similar home market models based on the three criteria enumerated above. The Court remanded the issue in Koyo and NSK. Consistent with its remand results in Koyo and NSK, in these remand results, Commerce first applied the 20% difference-in-merchandise cost test to determine if U.S. and home market models were of approximately equal commercial value. Commerce selected the ten most physically similar home market models by applying the three-criteria model match...