Nippon Pillow Block Sales Co., LTD. v. US
| Decision Date | 22 September 1995 |
| Docket Number | Slip Op. 95-162. Court No. 92-07-00455. |
| Citation | 903 F. Supp. 89 |
| Parties | NIPPON PILLOW BLOCK SALES CO., LTD. and FYH Bearing Units USA, Inc., Plaintiffs, Emerson Power Transmission Corporation, Plaintiff-Intervenor, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Michael Brown for plaintiffs Nippon Pillow Block Sales Co., Ltd. and FYH Bearing Units USA, Inc.
Baker & McKenzie, Kevin M. O'Brien and Michael A. Lawrence, for plaintiff-intervenor Emerson Power Transmission Corporation.
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 and David J. Ross, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
Stewart and Stewart, Terence P. Stewart, James R. Cannon, Jr., John M. Breen and Patrick J. McDonough, for defendant-intervenor The Torrington Company.
Frederick L. Ikenson, P.C., Frederick L. Ikenson, Larry Hampel and Joseph A. Perna, V, for defendant-intervenor Federal-Mogul Corporation.
Plaintiffs, Nippon Pillow Block Sales Company, Ltd., and FYH Bearing Units USA, Inc. (collectively "Nippon"), commenced this action challenging certain aspects of the United States Department of Commerce, International Trade Administration's ("Commerce") final results of its second administrative review of certain antifriction bearings and parts thereof from Japan. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et al.; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 57 Fed.Reg. 28,360 (June 24, 1992).
On June 28, 1991, Commerce initiated an administrative review of the antidumping duty order on ball bearings, cylindrical roller bearings, spherical plain bearings, and parts thereof from Japan, for the period of May 1, 1990 to April 30, 1991. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; Initiation of Antidumping Administrative Reviews, 56 Fed. Reg. 29,618 (1991).
On March 31, 1992, Commerce published the preliminary determination of its second administrative reviews, for the period of May 1, 1990 to April 30, 1991. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 57 Fed. Reg. 10,868 (1992).
On June 24, 1992, Commerce published the final results of its second administrative reviews. See 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 (1992).
Plaintiffs move pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record, alleging the following determinations by Commerce were unsupported by substantial evidence on the agency record and not in accordance with law: (1) to use annual weighted-average foreign market values ("FMVs"); and (2) to use total best information available ("BIA") to compute plaintiffs' dumping margin.
The Court's jurisdiction in this action is derived from 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).
The Court must uphold Commerce's final determination 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) (1988). Substantial evidence is Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on the grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).
Plaintiffs contend that Commerce failed to meet its statutory burden, pursuant to the Tariff Act of 1930 (the "Act"), to demonstrate that annual weighted-average FMVs are representative of the prices of home market sales made at the same time as United States sales. Plaintiffs' Memorandum in Support of Motion for Judgment Upon the Agency Record ("Plaintiffs' Brief") at 7-8. Specifically, plaintiffs claim that Commerce's actions were inconsistent with sections 773(a) and 777A of the Act, codified at 19 U.S.C. § 1677b(a) (1988) and 19 U.S.C. § 1677f-1 (1988), respectively. Plaintiffs' Brief at 7-11. According to plaintiffs, 19 U.S.C. § 1677f-1 permits Commerce to use averages only if they are representative of the underlying transaction. Id. at 8. Plaintiffs also emphasize the language of 19 U.S.C. § 1677b(a) which defines FMV as follows: "The foreign market value of imported merchandise shall be the price, at the time such merchandise is first sold within the United States...." Plaintiffs contend that the following reasoning provided by Commerce for its decision to use annual weighted-averages was insufficient to meet the statutory requirements:
Section 777A of the Tariff Act requires the Department to ensure that samples and averages shall be representative of the transactions under review. Therefore, before adopting the use of an annual weighted-average FMV, we conducted two studies on prices to ensure that the transactions, and thus the results produced, would be representative. First, we compared the monthly weighted-average price to the annual weighted-average price. We found that the annual weighted-average price for more than 90 percent of the products sold was within 10 percent of the monthly weighted-average price. Second, we tested whether home market prices of the subject merchandise consistently rose or fell during the period of review (POR). We found that no significant correlation existed between price and time. That is, prices did not consistently rise or fall so as to make annual weighted-average prices unrepresentative of home market prices.
Final Results, 57 Fed.Reg. at 28,368.
Plaintiffs maintain that the first study described by Commerce is flawed because it does not consider up to 10% of monthly prices which may vary by more than 10%. Plaintiffs' Brief at 9-11. Plaintiffs allege that Commerce's methodology may result in annual weighted-averages that vary vastly from the monthly weighted-averages of home market sales contemporaneous to United States sales. Id. at 10-11.
In addition, plaintiffs contend that the second test used by Commerce, the Pearson correlation coefficient, does not indicate that the annual weighted-average FMVs are representative of any particular prices during the period of review. Id. at 12-13. Plaintiffs explain that the Pearson correlation coefficient only measures whether there is a consistent increase or decrease in price over time. Id. Plaintiffs conclude that the fact that the prices fluctuate, as indicated by the lack of a correlation, does not mean that the annual average prices are representative of the prices of home market sales contemporaneous with United States sales. Id. at 14.
In rebuttal, Commerce argues that pursuant to 19 U.S.C. § 1677f-1(a), averaging techniques are appropriate whenever a significant volume of sales is involved. Defendant's Memorandum in Opposition to Plaintiffs' Motions for Judgment on the Agency Record ("Defendant's Brief") at 27-28. Commerce also asserts that its actions were consistent with the Act since it conducted two studies before deciding to use annual weighted-averages. Defendant's Brief at 28-29. Commerce argues that plaintiffs' contentions are based on hypothetical numbers that fail to demonstrate that the use of annual weighted-average FMVs would actually create higher dumping margins. Id. at 29.
Commerce further responds that the Pearson correlation coefficient guaranteed that there would be no vast difference in prices of merchandise sold during different times of the period of review. Id. According to Commerce, the two tests used in tandem were sufficient to ensure that the use of annual weighted-averages would not cause a systematic distortion of dumping margins. Id. at 29-30.
The Torrington Company ("Torrington") and Federal-Mogul Corporation ("Federal-Mogul") essentially support Commerce's decision to use annual weighted-average FMVs. The Torrington Company's Response to Plaintiffs' Motion for Judgment on the Agency Record ("Torrington's Brief") at 14-20; Opposition of Federal-Mogul Corporation, Defendant-Intervenor, to Plaintiffs' Motion for Judgment Upon the Agency Record ("Federal-Mogul's Brief") at 13-16.
According to 19 U.S.C. § 1677f-1:
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