Nsk Ltd v. U.S., Slip Op. 02-61.

• Decision Date: 08 July 2002
• Docket Number: Court No. 98-07-02527.,Slip Op. 02-61.
• Citation: 217 F.Supp.2d 1291
• Parties: NSK LTD. AND NSK Corporation; NTN Corporation, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation; and the Torrington Company, Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, Koyo Seiko Co., Ltd. and Koyo Corporations of U.S.A.; and Nachi-Fujikoshi Corp., Nachi America, Inc. and Nachi Technology, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

217 F.Supp.2d 1291

NSK LTD. AND NSK Corporation; NTN Corporation, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation; and the Torrington Company, Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant Koyo Seiko Co., Ltd. and Koyo Corporations of U.S.A.; and Nachi-Fujikoshi Corp., Nachi America, Inc. and Nachi Technology, Inc., Defendant-Intervenors.

Slip Op. 02-61.

Court No. 98-07-02527.

United States Court of International Trade.

July 8, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lipstein, Jaffe & Lawson, L.L.P., Washington, DC (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson) for NSK, plaintiff and defendant-intervenor.

Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, Christine H.T. Yang and Clarice K.M. McCauley) for NTN, plaintiff and defendant-intervenor.

Stewart and Stewart, Washington, DC (Terence P. Stewart, Geert De Prest and Lane S. Hurewitz) for Torrington, plaintiff and defendant-intervenor.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC (Velta A. Melnbrencis, Assistant Director); Patrick V. Gallagher, Myles S. Getlan, John F. Koeppen and David R. Mason, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC for the United States, defendant, of counsel.

Powell, Goldstein, Frazer & Murphy LLP, Washington, DC (Neil R. Ellis and Elizabeth C. Hafner) for Koyo, defendant-intervenor.

O'Melveny & Myers LLP, Los Angeles, CA (Greyson L. Bryan and Michael A. Meyer) for Nachi, defendant-intervenor.

OPINION

TSOUCALAS, Senior Judge.

Plaintiffs and defendant-intervenors, NSK Ltd. and NSK Corporation (collectively "NSK"), NTN Corporation, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation (collectively "NTN"), and The Torrington Company ("Torrington"), 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 Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom ("Final Results"), 63 Fed.Reg. 33,320 (June 18, 1998), for the period of review ("POR") from May 1, 1996, through April 30, 1997.

Specifically, NSK argues that Commerce erred in: (1) calculating the constructed value profit by (a) excluding below-cost sales, and (b) applying Commerce's methodology; (2) denying partial level-of-trade adjustment; and (3) treating repacking expenses in the United States as direct selling expenses.

NTN maintains that Commerce erred in: (1) denying an adjustment to indirect selling expenses for interest incurred in financing cash deposits for antidumping duties; (2) including sample transactions for which no compensation was received; (3) refusing to exclude home market sales with high profits and home market sample sales from the dumping margin calculation; (4) disregarding sales to affiliated customers in Commerce's calculation of normal value; (5) using the affiliated supplier's cost of production for inputs in those cases when the cost was higher than the transfer price in Commerce's calculation of cost of production and constructed value; (6) recalculating indirect selling expenses incurred in the United States without regard to levels of trade; (7) recalculating normal value based on sales of identical or similar merchandise before resorting to constructed value in instances where below-cost sales were disregarded; (8) disallowing a claim for level-of-trade adjustment; (9) calculating constructed export price profit without regard to levels of trade; (10) including profits from export price sales in Commerce's calculation of constructed export price profit; and (11) recalculating home market indirect selling expenses without regard to levels of trade.

Finally, Torrington asserts that Commerce erred in: (1) accepting, as a direct adjustment to price, Koyo Seiko Co. and Koyo Corporations of U.S.A.'s (collectively "Koyo") (a) home market lump sum billing adjustment, and (b) rebates; (2) accepting, as a direct adjustment to price, NSK's home market billing adjustment; and (3) accepting, as a direct adjustment to price, NTN's home market discounts.

BACKGROUND

The administrative review at issue covers the period of review from May 1, 1996, through April 30, 1997.¹ Commerce published the preliminary results of the subject review on February 9, 1998. See Notice of preliminary results of antidumping duty administrative reviews and partial termination of administrative reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) And Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, and The United Kingdom ("Preliminary Results"), 63 Fed.Reg. 6512. On June 18, 1998, Commerce published the Final Results at issue. See 63 Fed.Reg. 33,320.

JURISDICTION

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

STANDARD OF REVIEW

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).

I. SUBSTANTIAL EVIDENCE TEST

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)). Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted). Moreover, "[t]he court may not substitute its judgment for that of the [agency] when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983) (quoting, in turn, Universal Camera, 340 U.S. at 488, 71 S.Ct. 456)).

II. CHEVRON TWO-STEP ANALYSIS

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. ("Chevron"), 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 F.3d 879, 882 (Fed. Cir.1998) (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). "The first and foremost `tool' to be used is the statute's text, giving it its plain meaning. Because a statute's text is Congress's final expression of its intent, if the text answers the question, that is the end of the matter." Id. (citations omitted). Beyond the statute's text, the tools of statutory construction "include the statute's structure, canons of statutory construction, and legislative history." Id. (citations omitted); but see Floral Trade Council v. United States, 23 CIT 20, 22 n. 6, 41 F.Supp.2d 319, 323 n. 6 (1999) (noting that "[n]ot all rules of statutory construction rise to the level of a canon, however." Citation omitted).

If, after employing the first prong of Chevron, the Court determines that the statute is silent or ambiguous with respect to the specific issue, the question for the Court becomes whether Commerce's construction of the statute is permissible. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Essentially, this is an inquiry into the reasonableness of Commerce's interpretation. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996). Provided Commerce has acted rationally, the Court may not substitute its judgment for the agency's. See Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994) (holding that "a court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another"); see also IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed. Cir.1992). The "[C]ourt 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 CIT 1074, 1077, 699 F.Supp. 938, 942 (1988) (citations omitted). In determining whether Commerce's interpretation is reasonable, the Court considers the following non-exclusive list of factors: the express terms of the provisions at issue, the objectives of those provisions and the objectives of the antidumping scheme as a whole. See Mitsubishi Heavy Indus. v. United States, 22 CIT 541, 545, 15 F.Supp.2d 807, 813 (1998).

DISCUSSION

I. COMMERCE'S CALCULATION OF PROFIT FOR CONSTRUCTED VALUE

A. BACKGROUND

The...