KOYO SEIKO CO. LTD. v. US
| Decision Date | 16 August 1995 |
| Docket Number | Slip Op. 95-146. Court No. 92-07-00505. |
| Citation | 19 CIT 1085,898 F. Supp. 915 |
| Parties | KOYO SEIKO CO., LTD. and Koyo Corporation of U.S.A., Plaintiffs, v. The UNITED STATES and The United States Department of Commerce, Defendants, and The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
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Powell, Goldstein, Frazer & Murphy, Washington, DC (Peter O. Suchman, Neil R. Ellis, T. George Davis, Robert A. Calaff and Niall P. Meagher), 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: Stephen J. Claeys, Stacy J. Ettinger and Dean A. Pinkert, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Washington, DC, for defendants.
Stewart and Stewart, Washington, DC (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Lane S. Hurewitz, Patrick J. McDonough and John M. Breen), for defendant-intervenor, The Torrington Company.
Frederick L. Ikenson, P.C., Washington, DC (Frederick L. Ikenson, Larry Hampel and Joseph A. Perna, V), for defendant-intervenor, Federal-Mogul Corporation.
Plaintiffs, Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. ("Koyo"), challenge certain aspects of the Department of Commerce, International Trade Administration's ("Commerce") final results of the administrative review of certain antifriction roller bearings ("AFBs") from Japan. 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), as amended, 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 (December 14, 1992) (collectively, "Final Results").
On May 15, 1989, Commerce published antidumping duty orders which covered the subject merchandise. Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, 54 Fed.Reg. 20,900 (May 15, 1989). On March 31, 1992, Commerce published the preliminary results of its second administrative reviews, for the period May 1, 1990 to April 30, 1991. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 57 Fed.Reg. 10,859 (March 31, 1992).
On June 24, 1992, Commerce published the final determination of its second administrative review, 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), which was later amended by 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 (December 14, 1992).
Koyo 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 Koyo failed to provide cost of production ("COP") data for home market prototype models; (2) application of BIA to scope products which were sold to a U.S. affiliate which incorporated the products into non-scope finished merchandise; (3) exclusion of the provision for doubtful debt from the home market indirect selling expenses; (4) application of the difference in merchandise "difmer" test; and (5) failure to add direct selling expenses to foreign market value ("FMV"). Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Judgment on the Agency Record ("Koyo's Brief") at 3-6.
The Court's jurisdiction over this matter is derived from 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).
A final determination by Commerce in an administrative proceeding will be sustained unless that determination 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 "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).
Koyo contends that Commerce improperly resorted to BIA to calculate the dumping margins for any U.S. sale that matched to home market models for which COP data was missing or that matched to a "family" of home market models if COP for any model within that family was missing. In addition, Koyo asserts Commerce applied an unreasonable BIA because Koyo failed to provide only a small amount of cost data for very few home market models (an "extremely insignificant portion of the COP data") and because the absence of the data would have had virtually no impact on its margin calculation. Koyo states Commerce acted inconsistently by applying a punitively high margin rate for all U.S. sales which matched either the individual home market models which included the sub-models with missing COP data or the entire home market families that included those models. Further, Koyo maintains the factors distinguishing the models lacking COP data from other home market bearing sub-models comprising a given model accounted for no more than a "nominal cost difference." 1990-1991 AFB Questionnaire at 41-42; Koyo's Brief at 12-20.
Commerce responds that it correctly resorted to BIA because Koyo failed to provide pertinent data and that it properly used Koyo's rate from the less-than-fair value ("LFTV") investigation as BIA. Defendants' Memorandum in Opposition to Plaintiffs' Motion for Judgment Upon the Agency Record ("Defendants' Brief") at 14-24.
Defendant-intervenor The Torrington Company ("Torrington") and defendant-intervenor Federal-Mogul Corporation ("Federal-Mogul") agree with Commerce's position on this issue. Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Judgment Upon the Agency Record ("Torrington's Brief") at 14-22; Opposition of Federal-Mogul Corporation, Defendant-Intervenor, to Motion of Plaintiffs Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. for Judgment on the Agency Record ("Federal-Mogul's Brief") at 7-13.
Section 1677e(c) of Title 19, U.S.C., states that Commerce "shall, whenever a party ... refuses or is unable to produce information requested in a timely manner ... use the best information otherwise available."
Koyo's argument that Commerce improperly applied BIA because Koyo failed to provide only a very insignificant portion of the data requested is without merit. The BIA provision applies regardless of the amount of lacking information. See 19 U.S.C. § 1677e(c) (1988).
For purposes of this administrative review, Commerce required that Koyo provide complete COP data for all reported home market sales. 1990-1991 AFB Questionnaire; Koyo's Brief at 12. It is undisputed that Koyo did not provide all the information that had been requested. Therefore, BIA was correctly applied because Commerce specifically requested Koyo to provide COP data and Koyo failed to do so. Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1560 (Fed.Cir.1984), cited in, U.H.F.C. Co. v. United States, 13 CIT 119, 129, 706 F.Supp. 914, 922 (1989), affd in part, rev'd in part, 916 F.2d 689 (Fed.Cir.1990), vacated and remanded, 14 CIT 753 (1990); see also, Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1190 (Fed.Cir.1993).
Upon review, this Court finds that Commerce properly selected Koyo's LTFV investigation rate as BIA. The Court finds that the antidumping statute is silent as to what constitutes best information available. 19 U.S.C. § 1677e. Because Congress explicitly left a gap for the agency to fill, it is within Commerce's discretion to decide what constitutes best information available in a particular case and this Court must grant that decision considerable deference. Allied-Signal Aerospace, 996 F.2d at 1191-92. It is therefore within Commerce's discretion to choose BIA adverse to noncooperating parties. Saha Thai Steel Pipe Co. v. United States, 17 CIT 727, ___ _ ___, 828 F.Supp. 57, 62-64 (1993).
This Court finds that Commerce exercised its discretion in this matter reasonably and in accordance with law. Commerce explained its choice of BIA:
Koyo failed to provide COP information for certain models. We will use Koyo's reported data to the extent possible for calculating cost of production. However, where those models for which no COP information was provided are shown to be the most appropriate match for a U.S. sale, we have applied Koyo's rates of 73.55 percent for BBs and 51.21 percent for CRBs from the LTFV investigation as BIA. In addition, where any of these models belonged to a family which was used as a match, these BIA rates were applied to the family.
Final Results, 57 Fed.Reg. at 28,386.
Therefore, this Court finds that Commerce's application and choice of BIA in this case is supported by substantial evidence and in accordance with law and is hereby affirmed.
Koyo asserts Commerce acted contrary to law by applying BIA to certain of Koyo's claimed "Roller Chain" exclusions.1 Koyo argues it has been unreasonably punished for its inability to obtain information from a U.S. affiliate who...
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