Sugiyama Chain Co., Ltd. v. US
| Citation | 797 F. Supp. 989,16 CIT 526 |
| Decision Date | 30 June 1992 |
| Docket Number | Court No. 90-11-00605. |
| Parties | SUGIYAMA CHAIN CO., LTD., I & OC of Japan Co., Ltd. and HKK Chain Corp. of America, Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
COPYRIGHT MATERIAL OMITTED
Tanaka Ritger & Middleton (Patrick F. O'Leary), Washington, D.C., for plaintiffs.
Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Velta A. Melnbrencis), Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce (D. Michael Kaye, Washington, D.C., Attorney-Advisor, of counsel), for defendant.
Plaintiffs move for judgment on the agency record pursuant to Rule 56.1 of the Rules of this Court. Defendant opposes the motion, but concedes that its finding of single corporate dumping margins for Plaintiffs' roller chain, rather than channel-specific dumping margins, and the imposition of new cash deposit rates, were not investigated, not supported by substantial evidence on the record, and not in accordance with law. Defendant requests a remand of this case to the United States Department of Commerce (Commerce) for the preparation of revised final results to show channel-specific dumping margins for those distributions that were investigated and to correct the cash deposit instructions issued to the Customs Service.
Plaintiffs challenge the final results of two administrative reviews respectively made by the United States International Trade Administration (ITA) of the Department of Commerce pertaining to roller chain, other than bicycle from Japan, for the following two years: April 1, 1987 through March 31, 1988 (1987-88 review period) set forth in Final Results of Antidumping Duty Administrative Review: Roller Chain, Other Than Bicycle, from Japan, 55 Fed.Reg. 42,602 (Oct. 22, 1990) and April 1, 1988 through March 31, 1989 (1988-89 review period) set forth in Final Results of Antidumping Duty Administrative Review: Roller Chain, Other Than Bicycle, from Japan, 55 Fed.Reg. 42,608 (Oct. 22, 1990).
Plaintiffs contend there are five issues of law that should be addressed by this Court, which are as follows:
Single Corporate Dumping Margin
1. Whether the reporting by the ITA of a single corporate dumping margin combining the separate dumping margins computed for Plaintiff Sugiyama's (SY's) sales to Plaintiff I & OC of Japan Co. (I & OC) and SY's sales through HKK Chain Corporation of America (HKK) was in accordance with law. Defendant concedes this issue and it is remanded to Commerce.
2. Whether the directions by the ITA to the Customs Service, following the publication of the final results, to collect a cash deposit of estimated antidumping duties for shipments through Plaintiff SY's uninvestigated distribution channels were in accordance with law. Defendant concedes this issue and it is remanded to Commerce. Commerce is directed on remand to determine what deposits, if any, were collected on account of Plaintiffs' distribution channels that were not investigated.
3. Whether the foreign market value (FMV) calculations of the ITA were supported by substantial evidence on the record and otherwise in accordance with law where the home market credit expenses contained a computer error made by Plaintiff SY and reported to Commerce in Plaintiffs' July 27, 1990 prehearing brief.
4. Whether the ITA's foreign market value determinations were supported by substantial evidence on the record and otherwise in accordance with law where the ITA made a programming error in selecting FMVs to be compared with certain purchase price sales.
5. Whether the refusal by the ITA to apply the exchange rate lag rule found in Commerce Department Regulations 19 C.F.R. § 353.60(b) (1990) for the period October 28, 1987 through March 31, 1988 was supported by substantial evidence on the record and otherwise in accordance with law.
On September 21, 1989, Commerce transmitted questionnaires covering the respective review periods to the United States Embassy in Tokyo for delivery to Plaintiffs. Administrative Record Document (AR Doc.), Reel (R) 1, Frame (F) 137. Specific instructions for calculating home market credit expense and product control designation were included with the questionnaires. AR Doc. R1 F174, F216.
Plaintiff SY submitted on December 29, 1989, its initial questionnaire response which included in narrative form a specific methodology used by SY in calculating home market credit expenses and computer tapes of home market and United States sales. AR Doc. R1 F265-66; AR Doc. Confidential (Conf.) R2, F83A, F93A.
Plaintiff SY, after having advised Commerce that SY was experiencing problems with the preparation of its computer tapes, requested an extension of time to file the tapes which were ultimately filed with Commerce in a corrected and/or revised form on January 5, 1990. AR Doc. R1 F310, F313.
Commerce issued on March 2, 1990, a deficiency letter to Plaintiff SY, requesting supplemental information, clarification of the methodology used to derive home market credit expense, and information pertaining to product comparisons (product concordance). AR Doc. R1 F319, F328, F332.
Plaintiff SY requested on April 2, 1990, the deadline for submission of responses to the deficiency letter, additional time to compile revisions of its computer tapes. This extension was granted by Commerce. AR Doc. R1 F366, F370. On April 9, 1990, Plaintiff SY filed its response to the deficiency letter, in which SY proposed new formulas for calculating home market credit expense (AR Doc.Conf. R2 F354A-55A, F389A-90A) and submitted new computer tapes that were used by Commerce in calculating dumping margins. AR Doc.Conf. R2 F193A. The response of April 9, 1990, failed to discuss Commerce's request for product concordance data.
Notices of the respective preliminary results of both reviews were published on June 27, 1990. 55 Fed.Reg. 26,243 (1990) (1987-88 review period); 55 Fed.Reg. 26,240 (1990) (1988-89 review period). Plaintiffs filed on July 27, 1990, comments pertaining to the preliminary results. AR Doc.Conf. R2 F500A. Plaintiffs discussed the issue of utilizing only one corporate dumping rate, requested Commerce to "correct all of the CREDITH" (home market credit expense) figures on SY's tape (AR Doc.Conf. R2 F508A-510A), requested Commerce to grant a level of trade adjustment in accordance with 19 C.F.R. § 353.58 (AR Doc.Conf. R2 513A), and requested Commerce to apply the exchange rate lag rule (AR Doc.Conf. R2 F521A) in accordance with 19 C.F.R. § 353.60. Plaintiffs, however, did not comment upon any computer programming error, nor were there any comments pertaining to product comparisons. Moreover, Plaintiff SY did not submit any computer tapes reflecting what it considered to be correct home market credit expense.
Commerce published on October 22, 1990, notices of the final results of the respective administrative reviews, in which it addressed the issues raised by Plaintiffs. 55 Fed.Reg. 42,602 (1990) (1987-88 review period); 55 Fed.Reg. 42,608 (1990) (1988-89 review period).
Commerce, in regard to the question of the single dumping margin, declined in both final notices to make any adjustment. Commerce in this action, as already noted, concedes this issue. Commerce refused to correct the CREDITH figures submitted on Plaintiff SY's tapes or to employ the specific exchange rate lag rule, or to acquiesce in Plaintiffs' request for a level of trade adjustment. Commerce did not address product comparisons in the notice, presumably because Plaintiffs never raised the question of a programming error in selecting sales for foreign market value purposes.
On November 1, 1990, Plaintiffs filed with Commerce a letter requesting Commerce to correct what the letter identified as two "ministerial errors." AR Doc.Conf. R2 F641A. The first "error" pertained to home market credit expense, and the second "error" referred to a computer programming error in regard to choice of home market sales. The letter did not state where the error occurred in the program. The letter also discussed the denial by Commerce of the requested level of trade adjustment. AR Doc.Conf. R2 F644A.
On November 21, 1990, Plaintiffs commenced this action.
This Court's jurisdiction to review the final results of an antidumping duty administrative review is limited to determining whether the final results are supported by substantial evidence on the administrative record and are otherwise in accordance with the law. 28 U.S.C. § 1581(c) (1988); 19 U.S.C. § 1516a(b)(1)(B) (1988).
Substantial evidence Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The possibility of drawing two inconsistent conclusions from the same evidence does not prevent the agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). "Rather, the court will sustain the determination if it is reasonable and supported by the record as a whole, including whatever fairly detracts from the substantiality of the evidence." Negev Phosphates, Ltd. v. United States, 12 C.I.T. 1074, 1077, 699 F.Supp. 938, 942 (1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)).
Furthermore, Commerce's interpretation of the statutes it administers is accorded substantial weight. Floral Trade Council v. United States, 8 Fed.Cir. (T) ___, ___, 888 F.2d 1366, 1368 (1989) (...
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