Neuweg Fertigung GmbH v. US

• Decision Date: 20 August 1992
• Docket Number: Court No. 91-08-00587.
• Parties: NEUWEG FERTIGUNG GmbH Plaintiff, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

797 F. Supp. 1020

16 CIT 724

NEUWEG FERTIGUNG GmbH Plaintiff, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.

Court No. 91-08-00587.

United States Court of International Trade.

August 20, 1992.

Covington & Burling, Harvey M. Applebaum, David R. Grace and Thomas O. Barnett, Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis, Washington, D.C. (of counsel: Dean A. Pinkert and Douglas S. Cohen, Attorney-Advisors, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce), for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Wesley K. Caine, Myron A. Brilliant, Robert A. Weaver and Amy S. Dwyer, Washington, D.C., for defendant-intervenor The Torrington Co.

Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley and Joseph A. Perna, V, Washington, D.C., for defendant-intervenor Federal-Mogul Corp.

OPINION

TSOUCALAS, Judge:

Plaintiff, Neuweg Fertigung GmbH ("Neuweg"), moves pursuant to Rule 56.1 of the Rules of this Court for judgment on the agency record challenging the results of the first administrative review of antifriction bearings from the Federal Republic of Germany as it relates to Neuweg. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review ("Final Results'), 56 Fed. Reg. 31,692 (1991). Plaintiff requests this Court to remand this action to the Department of Commerce, International Trade Administration ("ITA"), for recalculation of Neuweg's dumping margin by accounting for plaintiff's customer-specific product codes in matching home market and U.S. sales or, in the alternative, to require the ITA to use less punitive "best information available" ("BIA") as the margin for plaintiff's unmatched sales.

In addition, defendant moves pursuant to Rule 12(f) of the Rules of this Court to strike exhibit A of Plaintiff's Reply to Defendant and Defendant-Intervenors' Memoranda in Opposition to Plaintiff's Motion for Judgment upon the Agency Record ("Plaintiff's Reply") and the references to exhibit A on Pages 5 and 8 of Plaintiff's Reply.

Background

Plaintiff requested that the ITA conduct an administrative review of plaintiff's sales of bearings. Administrative Record Germany Public ("AR Germany Pub.") Doc. 2. ITA sent Neuweg section A of the antidumping duty questionnaire which required Neuweg to "describe your product coding system as it applies to anti-friction bearings. Provide a key to your product codes, including all prefixes, suffixes, or other notation, which identify special features." Administrative Record General Public ("AR Gen.Pub.") Doc. 3. Neuweg provided the requested information in Appendix A.4, Part 2, of its questionnaire response. AR Germany Pub.Doc. 105. When describing its product coding in its section B and C questionnaire responses, Neuweg referred back to Appendix A.4, Part 2, of its section A questionnaire response. AR Germany Pub.Docs. 193, 239.

On March 15, 1991, the ITA published the preliminary results of the administrative review. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews ("Preliminary Results"), 56 Fed.Reg. 11,200 (1991).

On March 25, 1991, the ITA held a disclosure conference with Neuweg's counsel to review the preliminary results. The case analyst's memorandum to the file documenting this meeting pointed out that the ITA had been unable to match a considerable number of U.S. sales with home market sales and states in relevant part that

the majority of these non matches appear to be the result of improper product codes. For a number of transactions on the purchase price database, the product code field also included the customer name, which, of course, prevented matching to take place with comparable home market sales or constructed value (CV).

AR Germany Pub.Doc. 542. Neuweg did nothing to address this problem until after release of the Final Results.

In its Final Results, the ITA explained its use of BIA in this review stating that

if a firm failed to provide matching data for a significant portion of its reported U.S. sales by quantity, we used as BIA for those particular transactions the higher of (1) the firm's previous rate (or "all others" rate) from the less than fair value investigation, or (2) the highest calculated rate for any firm in this review.

Final Results, 56 Fed.Reg. at 31,705.

Neuweg had submitted difference in merchandise ("DIFMER") data only for models for which there were no contemporaneous home market sales, for use in matching bearings within bearing families when identical matches were not possible. As a result of the lack of DIFMER data for the bearings for which the ITA was unable to make identical matches, when the ITA tried to match U.S. sales to home market sales by bearing family, the ITA found that it was unable to match a "significant" number of Neuweg's U.S. sales to home market sales. AR Germany Pub.Doc. 655.

Since Neuweg had not participated in the initial less than fair value investigation, the ITA selected as BIA the 68.89% "all others" rate from the initial investigation as the margin for Neuweg's unmatched sales. AR Germany Confidential Doc. 210.

Discussion

The Court's jurisdiction over this matter is derived from 28 U.S.C. § 1581(c) (1988).¹

A final determination by the ITA 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 that "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).

1. Motion to Strike

This Court's review of a final determination in an administrative review is limited to a review of the administrative record developed in that administrative review. 19 U.S.C. § 1516a(a)(2) (1988). The administrative record is defined as:

(i) a copy of all information presented to or obtained by the ... administering authority ... during the course of the administrative proceeding ...; and

(ii) a copy of the determination, all transcripts or records of conferences or hearings, and all notices published in the Federal Register.

19 U.S.C. § 1516a(b)(2)(A) (1988).

The case law of this court is very clear that the administrative record "is limited to the information that was presented to or obtained by the agency making the determination during the particular review proceeding for which section 1516 authorizes judicial review." Beker Indus. Corp. v. United States, 7 CIT 313, 316 (1984); see also Intrepid v. United States, 15 CIT ___, ___, Slip Op. 91-14 at 3-4, 1991 WL 37876 (March 1, 1991); Ipsco, Inc. v. United States, 13 CIT 489, 495, 715 F.Supp. 1104, 1109 (1989). "Any information received by the ITA after the particular determination at issue is not part of the reviewable administrative record." Intrepid, 15 CIT at ___, Slip Op. 91-14 at 4, 1991 WL 37876 (citing Ipsco, 13 CIT at 495, 715 F.Supp. at 1109).

The "particular determination at issue" in this case is the ITA's Final Results published on July 11, 1991. The administrative record in this case consists of all materials submitted to or obtained by the ITA between the initiation of this administrative review on June 1, 1990 and the publication of the Final Results in this review on July 11, 1991. Any submissions made by plaintiff after July 11, 1991 are clearly not a part of the administrative record which this Court can use to review the Final Results.

Therefore, plaintiff's letter to the ITA dated July 18, 1991 is not a part of the administrative record before this Court for review and must be stricken.

2. Product Codes

Administrative reviews of outstanding antidumping duty orders are complex and time-consuming endeavors. In order to complete reviews in a timely fashion, the ITA requires the full cooperation of respondents. This is especially true in regard to the review at issue here where literally millions of sales of antifriction bearings were subject to review.

ITA has a responsibility to be specific in the information it asks for and in explaining the exact format in which that information is to be provided. In this case, the ITA asked for information "describing your product coding system as it applies to antifriction bearings. Provide a key to your product codes, including all prefixes, suffixes, or other notation, which identify special features." AR Gen.Pub.Doc. 3 (emphasis added). In its questionnaire responses and in the computer tapes it submitted, Neuweg listed its product codes and included customer-specific information. As a result, the product codes for identical bearings sold in the U.S. and home markets were not the same.

ITA argues that Neuweg failed to provide the ITA with requested "information in the form required ..., i.e., in a form which would permit the computer to match or compare United States and home market transactions, therefore, the ITA properly resorted to BIA for those sales which could not be matched." Defendant's Memorandum in Opposition to Plaintiff's Motion for Judgment upon the Agency Record ("Defendant's Memorandum") at 8-9. Defendant-intervenors, Federal-Mogul Corporation ("Federal-Mogul") and The Torrington Company ("Torrington"), agree with the ITA. Federal-Mogul Corporation's Opposition to Plaintiff's Motion for Judgment upon the Agency Record ("Federal-Mogul's Opposition") at...