Koyo Seiko Co., Ltd. v. U.S.

• Decision Date: 28 March 1994
• Docket Number: 93-1341 and 93-1311,Nos. 93-1310,s. 93-1310
• Citation: 20 F.3d 1160
• Parties: KOYO SEIKO CO., LTD. and Koyo Corporation of U.S.A., Inc., Plaintiffs/Cross-Appellants, v. The UNITED STATES, Defendant, and The Timken Company, Defendant-Appellant. NSK LTD. and NSK Corporation, Plaintiffs-Appellees, v. The UNITED STATES, Defendant, and The Timken Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1160

20 F.3d 1160

KOYO SEIKO CO., LTD. and Koyo Corporation of U.S.A., Inc., Plaintiffs/Cross-Appellants, v. The UNITED STATES, Defendant, and The Timken Company, Defendant-Appellant.

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

Nos. 93-1310, 93-1341 and 93-1311.

United States Court of Appeals, Federal Circuit.

March 28, 1994.

James R. Cannon, Jr., Stewart and Stewart, Washington, DC, argued, for defendant-appellant. With him on the brief, were Eugene L. Stewart, Terence P. Stewart and John M. Breen.

Susan P. Stommer, Powell, Goldstein, Frazer & Murphy, Washington, DC, argued, for plaintiffs/cross-appellants. With her on the brief, were Peter O. Suchman and T. George Davis, Jr.

Joseph F. Donohue, Jr., Donohue and Donohue, New York City, argued, for plaintiffs-appellees. With him on the brief, was Kathleen C. Inguaggiato.

Before ARCHER, Chief Judge, ^* FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

RADER, Circuit Judge.

Twenty years ago the Timken Company requested an antidumping investigation of tapered roller bearings (TRBs) four inches or less in outside diameter imported from Japan. The United States Department of Treasury initiated the investigation and calculated dumping margins for many TRB entries. Koyo Seiko Co., Ltd., Koyo Corporation of U.S.A., Inc. (collectively "Koyo"), NSK Ltd. and NSK Corporation (collectively "NSK") made extensive entries of TRBs between 1974 and 1979 which were subject to the investigation. In 1980, the Department of Commerce assumed responsibility for administering the antidumping law. Commerce commenced administrative reviews, gathered additional information, and recalculated the dumping margins.

In 1992, the Court of International Trade instructed Commerce's International Trade Administration (ITA) to disregard the data from its investigation of certain TRB entries and to liquidate them under Treasury's earlier dumping margins. On March 4, 1993, the trial court upheld ITA's reliance on Treasury dumping margins and the recalculation of dumping margins for the remaining TRB entries. Both parties appealed. This court reverses-in-part and affirms-in-part.

BACKGROUND

The Court of International Trade set forth the relevant facts for both of these cases in published opinions. Koyo Seiko Co. v. United States, 819 F.Supp. 1093 (Ct.Int'l Trade On October 31, 1973, Timken filed a petition for imposition of antidumping duties on TRBs from Japan. Tapered Roller Bearings from Japan; Antidumping Proceeding Notice, 38 Fed.Reg. 33,408 (Dep't Treas.1973). Under the Antidumping Act of 1921, 19 U.S.C. Secs. 160-173 (1976), amended by 19 U.S.C. Secs. 161, 168 (Supp. II 1978) (repealed 1979) (the 1921 Act), Treasury initiated an investigation and published a dumping finding on August 18, 1976. Tapered Roller Bearings and Certain Components from Japan, 41 Fed.Reg. 34,974 (Dep't Treas.1976). The dumping finding covered Koyo's and NSK's entries. These entries, however, were never liquidated.

1993); Koyo Seiko Co. v. United States, 796 F.Supp. 517 (Ct.Int'l Trade 1992); NSK Ltd. v. United States, 794 F.Supp. 1156 (Ct. Int'l Trade 1992). Therefore, this court may confine itself to the facts pertinent to this appeal.

I. Koyo v. United States

Between 1977 and 1980, Treasury prepared a series of master lists covering Koyo's TRB entries from April 1, 1974 through September 30, 1977 (the 1974-1977 entries). These master lists enabled U.S. Customs Service officials to appraise the entries and assess antidumping duties. One master list covered entries from April 1973 through December 1976. Another covered entries from January 1977 through September 1977. Koyo, however, disputed the accuracy of the 1973-1976 master list. Treasury suspended this master list due to possible errors.

Effective January 1, 1980, Congress enacted the Trade Agreements Act of 1979 (Trade Agreements Act). The Trade Agreements Act of 1979, Pub.L. No. 96-39, 93 Stat. 144 (codified as amended in scattered sections of 19 U.S.C.). The Trade Agreements Act repealed the 1921 Act and amended the Tariff Act of 1930. Section 106(a), 93 Stat. at 193. Section 751(a) of the Trade Agreements Act made dumping findings under the 1921 Act subject to an annual review. Section 751(a), 93 Stat. at 175 (current version at 19 U.S.C. Sec. 1675(a) (1988)).

On January 2, 1980, Commerce assumed administration of the antidumping laws. Exec. Order No. 12,188, 3 C.F.R. 131 (1981), reprinted in 19 U.S.C. Sec. 2171 (1988). Commerce's ITA issued a corrected master list with a lower dumping margin for the January 1977 to September 1977 entries. On March 28, 1980, ITA began a section 751(a) administrative review of the 1976 dumping finding. Administrative Review of Antidumping Determinations, 45 Fed.Reg. 20,511 (Dep't Comm.1980). ITA suspended liquidation of entries covered by master lists under section 751(a) review. ITA began to verify Koyo's submitted information and reevaluate the dumping margins.

In 1982, Commerce reached some preliminary results in its administrative review. The preliminary draft contained dumping margins of 1.95% or less for Koyo's TRB entries from April 1973 to July 1980. Although disclosed to Koyo, these results were not published. Again, Customs did not liquidate any Koyo entries under these dumping margins.

On September 19, 1983, Timken submitted to ITA an allegation that Koyo sold TRBs in its home market at prices below the full cost of production. In response, ITA initiated a cost-of-production (COP) investigation for Koyo's TRB entries from April 1, 1978 through March 31, 1979 (the 1978-1979 entries).

In 1984, section 751(a) was amended to require annual reviews only upon the request of interested parties. 19 U.S.C. Sec. 1675(a). Timken requested such a review. ITA requested additional data from Koyo and conducted verifications of Koyo's submitted information. Accordingly, ITA discovered likely inaccuracies in the previous dumping margins. In response, Koyo requested several extensions of time. ITA noted several times that Koyo's submissions were incomplete. In 1986, Koyo finally informed ITA that all documents for entries before 1980 had been destroyed.

During this process, ITA twice changed its methodology for calculating dumping margins, first adopting a three-criteria and then a five-criteria test. In 1987, ITA concluded that Koyo's submission was unacceptable. In addition, ITA noted that Koyo resisted Finally, on June 1, 1990, ITA issued its final determination. Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review, 55 Fed.Reg. 22,369 (Dep't Comm.1990) (TRB Final Results ). The determination relied on the data from ITA's investigation and "best information available" after Commerce took over the investigation, not on the Treasury master lists. Id. at 22,370, 22,375-76. Over Koyo's objection, ITA performed a cost-of-production (COP) analysis based on the best information available for the 1978-1979 entries. Thus, ITA disregarded sales in the home market below the COP when computing the foreign market value of the TRBs. See 19 U.S.C. Sec. 1677b(b) (1988). Under this method, Koyo's final dumping margins ranged from 18.81% to 35.89% for 1974-1977 and 1978-1979 entries.

requests for additional data. ITA therefore used a combination of data from its investigation and the "best information available" for the April 1974 to July 1985 TRB entries. See 19 U.S.C. Sec. 1677e(c) (1988).

Koyo challenged these results in the Court of International Trade. On May 15, 1992, the trial court granted Koyo's motion to liquidate the 1974-1977 TRB entries according to the pre-existing Treasury master lists, excluding the results of ITA's later investigation. The trial court also remanded the case with instructions to, inter alia, recalculate dumping margins for the 1978-1979 entries without reference to the COP investigation.

On August 21, 1992, the Court of International Trade denied Timken's motion for rehearing on the COP analysis issue. The court permitted Timken, however, to supplement its original below-cost allegation with information not derived from ITA's investigation.

On remand, ITA used a Treasury master list covering the 1977 entries that was corrected by Commerce in 1980. ITA determined to liquidate these entries in accordance with these corrections, and the 1974-1976 entries in accordance with the other Treasury master list. In addition, Timken's supplemental disclosure showed a reasonable probability that Koyo sold TRBs in the home market below cost. On the basis of this showing, ITA undertook a new COP investigation. Again ITA calculated new dumping margins for the 1978-1979 entries. This new calculation also excluded from the foreign market value sales below cost in the home market. The new final margins were 17.96% and 24.64% for the 1978-1979 entries. Timken challenged these results in the trial court, arguing that ITA could not use Treasury's 1977 master list as corrected by ITA in 1980.

II. NSK v. United States

NSK's TRB entries fell within Treasury's August 18, 1976 dumping finding. Tapered Roller Bearings and Certain Components from Japan, 41 Fed.Reg. 34,974 (Dep't Treas.1976). Treasury issued three master lists for NSK's entries from May 1, 1974 to March 31, 1978 (the 1974-1978 entries). Treasury, however, doubted the accuracy of these master lists. In an Investigation Report dated October 17, 1979, Treasury noted that NSK could not substantiate many of its claims. Treasury suspended the master list covering the 1977-1978 entries. There is no evidence that NSK's entries were liquidated under these master lists.

In 1980, Commerce's ITA assumed administration of the anti-dumping law and commenced annual section 751(a) reviews. On May 19, 1980, NSK applied for revocation of the antidumping order. At ITA's request, starting in ...