Timken Co. v. U.S.

• Decision Date: 02 July 1998
• Docket Number: Slip Op. 98-92.,Court No. 97-04-00562.
• Citation: 16 F.Supp.2d 1102
• Parties: THE TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Defendant-Intervenors.
• Court: U.S. Court of International Trade

16 F.Supp.2d 1102

THE TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Defendant-Intervenors.

Slip Op. 98-92.

Court No. 97-04-00562.

United States Court of International Trade.

July 2, 1998.

Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr., William A. Fennell and Patrick J. McDonough), Washington, DC, for Plaintiff.

Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Lucius B. Lau); of counsel: Carlos A. Garcia, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for Defendant.

Powell, Goldstein, Frazer & Murphy LLP (Peter O. Suchman, Neil R. Ellis, Elizabeth C. Hafner and Ronald E. Minsk), Washington, DC, for Defendant-Intervenors.

OPINION

TSOUCALAS, Senior Judge:

Plaintiff, The Timken Company ("Timken"), moves for judgment on the agency record pursuant to Rule 56.2 of the Rules of this Court. Timken challenges the Department of Commerce, International Trade Administration's ("Commerce") final results of the administrative review, entitled Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews and Termination in Part ("Final Results"), 62 Fed. Reg. 11,825 (Mar. 13, 1997).

Background

The administrative review at issue encompasses imports of tapered roller bearings ("TRBs") during the review period of October 1, 1994 through September 30, 1995. On November 6, 1996, Commerce published the preliminary results of the instant review. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews ("Preliminary Results"), 61 Fed.Reg. 57,391. On March 13, 1997, Commerce published the Final Results at issue. See 62 Fed.Reg. 11,825.

Timken claims Commerce erred in the Final Results by: (1) granting Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (collectively "Koyo") a downward adjustment to U.S. indirect selling expenses for imputed interest expenses incurred in financing antidumping duty cash deposits; (2) failing to adjust U.S. prices for export selling expenses; (3) allowing a direct adjustment to normal value ("NV") for Koyo's home market billing adjustments and rebates; and (4) making several clerical errors. Oral argument was held at the Court on June 24, 1998.

Discussion

The Court has jurisdiction over this matter under 19 U.S.C. § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).

The Court must uphold Commerce's final 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). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 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)). "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 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).

Because the administrative review at issue was initiated after January 1, 1995, the applicable statutory provisions are the amendments made by the Uruguay Round Agreements Act ("URAA"), Pub.L. 103-465, 108 Stat. 4809.

1. Offset to U.S. Selling Expenses for Imputed Interest on Cash Deposit of Estimated Dumping Duties

Commerce accepted Koyo's offset to U.S. indirect selling expenses for imputed interest payments on cash deposits of estimated dumping duties in this review. Final Results, 62 Fed.Reg. at 11,828. Timken claims that Commerce's most recent position is to deny the offset, indicating that Commerce has changed its stance on this issue and necessitating a remand to deny the adjustment to U.S. indirect selling expenses. Timken's Mem. Supp. Mot. J. Agency R. at 17-19.

Commerce responds that, despite its current position to deny the offset, its decision to grant the offset in this case was within Commerce's discretion. Def.'s Partial Opp'n to Mot. J. Agency R. at 15-18. Koyo agrees generally with the stance taken by Commerce, emphasizing that the Court has a well-established position against retroactively applying changes in policy to reviews that have already been completed. Koyo's Opp'n to Mot. J. Agency R. at 6-10.

Commerce has waffled considerably in deciding how to deal with imputed interest payments on cash deposit, first granting then denying, followed by once again granting and, most recently, denying adjustments to U.S. indirect selling expenses. See, e.g., Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Duty Order, 58 Fed.Reg. 39,729, 39,749 (July 26, 1993) (granting the offset in 1991-92 AFB Review); Final Results of Antidumping Duty Administrative Reviews; Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 58 Fed.Reg. 64,720, 64,726 (Dec. 9, 1993) (granting the adjustment in the 1990-92 TRB Review); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al.; Final Results of Antidumping Duty Administrative Reviews, Partial Termination of Administrative Reviews, and Revocation in Part of Antidumping Duty Orders, 60 Fed.Reg. 10,900, 10,918 (Feb. 28, 1995) (denying the offset in the 1992-93 AFB Review); Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Finding ("1992-93 TRB Final Results"), 61 Fed.Reg. 57,629, 57,638 (Nov. 7, 1996) (denying the offset in the 1992-93 TRB Review); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 Fed.Reg. 66,472, 66,488-89 (Dec. 17, 1996) (granting the offset in the 1993-94 AFB Review); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews, 62 Fed.Reg. 2081, 2104-05 (Jan. 15, 1997) (granting the offset in the 1994-95 AFB Review); Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews, 63 Fed.Reg. 2558, 2571 (Jan. 15, 1998) (denying the offset in the 1995-96 TRB Review). Nevertheless, this Court has consistently upheld the adjustment when Commerce has granted it in the final results and remanded for Commerce to allow the adjustment when Commerce has denied it in the final results. See Timken Co. v. United States, 21 CIT ___, ___, 989 F.Supp. 234, 250 (1997), modified, 22 CIT ___, Slip Op. 98-20, 1 F.Supp.2d 1390 (Mar. 4, 1998) (remanding for Commerce to grant the adjustment in the 1992-93 TRB Review); NSK Ltd. v. United States, 21 CIT ___, ___, 969 F.Supp. 34, 55 (1997), amended, 21 CIT ___, Slip Op. 97-154, 1997 WL 728277 (Nov. 20, 1997) (remanding for Commerce to grant the adjustment in the 1992-93 AFB Review); Federal-Mogul Corp. v. United States, 20 CIT ___, ___, 950 F.Supp. 1179, 1183 (1996), amended, 21 CIT ___, Slip Op. 97-9, 951 F.Supp. 1026 (Jan. 22, 1997) (upholding Commerce's decision to grant the adjustment in the 1991-92 AFB Review).

Consequently, in accordance with this Court's consistent position, Commerce's decision to grant Koyo's offset to U.S. indirect selling expenses for imputed interest payments incurred in financing antidumping duty cash deposits is supported by substantial evidence and fully in accordance with law.

2. Limiting U.S. Indirect Selling Expenses to Those Specifically Associated With Commercial Activity in the United States

The pre-URAA statute provided for the reduction of exporter's sales price ("ESP") by the amount of "expenses generally incurred by or for the account of the exporter in the United States in selling identical or substantially identical merchandise." 19 U.S.C. § 1677a(e)(2) (1988). Although the statute was silent as to whether indirect selling expenses incurred outside the United States should be categorized as U.S. indirect selling expenses, Commerce chose to adjust U.S. price for such expenses. See 19 C.F.R. § 353.41(e)(2) (1994); ITA Antidumping Manual, Ch.7, at 11 (rev. ed. July 1993).

As revised by the URAA, the statute states that constructed export price ("CEP"), the post-URAA equivalent to ESP, is to be reduced by the amount of any "expenses generally incurred by or for the account of the producer or exporter, or the affiliated seller in the United States" including "any selling expenses not deducted under subparagraph (A) [commissions], (B) [direct selling expenses], or (C) [selling expenses assumed by the seller on behalf of the purchaser]." 19 U.S.C. § 1677a(d)(1) & (d)(1)(D) (1994). In the Final Results, Commerce revised its previous practice and limited Koyo's...