Ntn Bearing Corp. of America v. U.S., Slip Op. 00-64.
| Citation | 104 F.Supp.2d 110 |
| Decision Date | 05 June 2000 |
| Docket Number | Slip Op. 00-64.,No. 97-10-01801.,97-10-01801. |
| Parties | NTN BEARING CORPORATION OF AMERICA, NTN Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation; NSK Ltd. and NSK Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, and The Torrington Company, Defendant-Intervenor and Plaintiff. |
| Court | U.S. Court of International Trade |
Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Christine H.T. Yang), for NTN.
Lipstein, Jaffe & Lawson, L.L.P., Washington, DC (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson), for NSK.
Powell, Goldstein, Frazer & Murphy LLP, Washington, DC (Peter O. Suchman, Neil R. Ellis, Elizabeth C. Hafner, Ronald E. Minsk and Leigh Fraiser), for Koyo.
David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director, Velta A. Melnbrencis, Assistant Director Commercial Litigation Branch, Civil Division, United States Department of Justice; Stacy J. Ettinger, Thomas H. Fine, Patrick V. Gallagher, Myles S. Getlan, Rina Goldenberg and David R. Mason, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for defendant, of counsel.
Stewart and Stewart, Washington, DC (Terence P. Stewart, James R. Cannon, Jr., Geert De Prest and Lane S. Hurewitz), for Torrington.
Plaintiffs and defendant-intervenors, NTN Bearing Corporation of America, NTN Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation (collectively "NTN"), NSK Ltd. and NSK Corporation (collectively "NSK"), and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (collectively "Koyo"), move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 62 Fed.Reg. 54,043 (Oct. 17, 1997), as amended, Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore[,] Sweden and the United Kingdom; Amended Final Results of Antidumping Duty Administrative Reviews ("Amended Final Results"), 62 Fed.Reg. 61,963 (Nov. 20, 1997). Defendant-intervenor and plaintiff, The Torrington Company ("Torrington"), also moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain determinations of Commerce's Final Results.
NTN, NSK and Koyo argue that Commerce erred in conducting a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) (1994) for this seventh administrative review of a 1989 antidumping duty order.
NTN also contends that Commerce erred in: (1) recalculating NTN's United States credit expenses on a transaction-specific rather than on a customer-specific basis for constructed export price ("CEP") sales; (2) denying a price-based, level of trade ("LOT" or "LOTs" for "levels of trade") adjustment to normal value ("NV") under 19 U.S.C. § 1677b(a)(7)(A) for its CEP sales; (3) refusing to accept NTN's reported home market and United States indirect selling expenses based on different trade levels; (4) refusing to calculate CEP profit on a LOT-specific basis; (5) denying a downward adjustment to NTN's reported United States indirect selling expenses for imputed interests incurred in financing cash deposits for antidumping duties; (6) refusing to exclude NTN's reported zero-price sample sales from its United States sales database; (7) failing to adjust NTN's cost of production ("COP") and constructed value ("CV") data on a model-specific basis; (8) including NTN's sales with abnormally high profits and certain home market sample sales from the NV calculation; and (9) excluding certain NTN home market sales to affiliated parties in the NV calculation. NTN, however, claims that Commerce correctly accepted its reported home market discounts as direct price adjustments to NV.
Further, NSK asserts that Commerce erred in: (1) deducting NSK's United States repacking expenses as direct selling expenses pursuant to 19 U.S.C. § 1677a(d)(1)(B); (2) calculating profit for CV under 19 U.S.C. §§ 1677b(e)(2)(A), 1677(16); and (3) denying a partial, price-based LOT adjustment to NV under § 1677b(a)(7)(A) for CEP sales when matched to its after-market sales in its home market.
Koyo also claims that Commerce properly accepted Koyo's reported home market billing adjustments as direct price adjustments to NV.
Commerce responds that it properly: (1) construed § 1675(a)(4) and (c) as authorizing it to conduct a duty absorption inquiry for the subject review; (2) treated NSK's United States repacking expenses as direct selling expenses under § 1677a(d)(1)(B); (3) calculated CV profit; (4) recalculated NTN's United States credit expenses on a transaction-specific basis for CEP sales; (5) denied a LOT adjustment for NTN's CEP sales; (6) interpreted § 1677b(a)(7) as not providing a partial LOT adjustment for NSK's CEP sales; (7) recalculated NTN's home market and United States indirect selling expenses without regard to LOT, however, since it did not state in the Final Results its reasons for recalculating NTN's home market indirect selling expenses, requests that the issue be remanded so it may articulate its reasons for such recalculation; (8) determined NTN's CEP profit without regard to LOT; (9) denied an adjustment to NTN's reported indirect selling expenses for imputed interests allegedly incurred in financing antidumping duty cash deposits; (10) included NTN's sample sales in its United States sales database; (11) adjusted NTN's COP and CV data; (12) included NTN's sales with abnormally high profits and home market sample sales in the NV calculation; (13) disregarded NTN's affiliated party sales from the NV calculation; and (14) treated Koyo's reported home market billing adjustments and NTN's reported home market discounts as direct price adjustments to NV.
Although Torrington generally agrees with Commerce, it maintains that Commerce erred in accepting Koyo's home market billing adjustments and NTN's alleged home market discounts as direct price adjustments in calculating NV.
The Court will address each of these arguments in turn.
On May 15, 1989, Commerce published antidumping duty orders on antifriction bearings (other than tapered roller bearings) and parts thereof ("AFBs") imported from several countries, including Japan. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904. This case concerns the seventh administrative review of the antidumping duty order on AFBs from Japan for the period of review ("POR") covering May 1, 1995 through April 30, 1996. In accordance with 19 C.F.R. § 353.22(c) (1995), Commerce initiated the seventh review on June 20, 1996.1 See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; Initiation of Antidumping Duty Administrative Reviews and Notice of Request for Revocation of an Order, 61 Fed.Reg. 31,506 (June 20, 1996). On June 10, 1997, Commerce published the preliminary results of the seventh review. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews ("Preliminary Results"), 62 Fed. Reg. 31,566. Commerce published the Final Results on October 17, 1997, see 62 Fed.Reg. at 54,043, and the Amended Final Results on November 20, 1997, see 62 Fed.Reg. at 61,963. Oral argument was held on March 8, 1999.
The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994).
In reviewing a challenge to Commerce's final determination in an antidumping administrative review, the Court will uphold Commerce's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (1994).
" " Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In reviewing the substantiality of evidence, the Court must take into account the entire record, including "whatever in the record fairly detracts from its weight." Universal Camera, 340 U.S. at 488, 71 S.Ct. 456.
To determine whether Commerce's interpretation and application of the antidumping statute is "in accordance with law," the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step, the Court reviews Commerce's construction of a statutory provision to determine whether "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ[s] the `traditional tools of statutory construction.'" Timex V.I., Inc. v. United States, 157...
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