Nsk Ltd. v. U.S.

• Citation: 245 F.Supp.2d 1335
• Decision Date: 09 January 2003
• Docket Number: SLIP OP. 03-05.,Court No. 00-04-00141.
• Parties: NSK LTD. and NSK Corporation; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation and NTN Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor and Plaintiff.
• Court: U.S. Court of International Trade

245 F.Supp.2d 1335

NSK LTD. and NSK Corporation; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation and NTN Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor and Plaintiff.

SLIP OP. 03-05.

Court No. 00-04-00141.

United States Court of International Trade.

January 9, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lipstein, Jaffe & Lawson, L.L.P., Washington, DC (Robert A. Lipstein, Matthew P. Jaffe, Grace W. Lawson and Joseph A. Konizeski) for NSK.¹

Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Beata Kolosa) for NTN.

Sidley Austin Brown & Wood LLP, Washington, DC (Neil R. Ellis, Niall P. Meagher, Lawrence R. Walders, Neil C. Pratt, Leigh Fraiser and Jennifer Haworth McCandless) for Koyo.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis, Assistant Director, Michele D. Lynch, Kenneth J. Guido and Richard P. Schroeder); John F. Koeppen, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, of counsel.

Stewart and Stewart, Washington, DC (Terence P. Stewart, William A. Fennell, Geert De Prest, Patrick J. McDonough, Marta M. Prado and David S. Johanson) for Timken.

OPINION

TSOUCALAS, Senior Judge.

Plaintiffs and defendant intervenors, NSK Ltd. and NSK Corporation (collectively "NSK"), NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation and NTN Corporation (collectively "NTN"), 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 United States Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of 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"), 65 Fed.Reg. 11, 767 (Mar. 6, 2000). Defendant-intervenor and plaintiff, The Timken Company ("Timken"), also moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain determinations of Commerce's Final Results.

Specifically, NSK contends that Commerce unlawfully: (1) used affiliated cost data for purposes other than calculating cost of production and constructed value to (a) run its model-match methodology under 19 U.S.C. § 1677(16), (b) calculate the difmer adjustment under 19 U.S.C. § 1677b(a)(6), and (c) calculate NSK's reported United States inventory carrying costs; and (2) conducted a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) for outstanding 1976 and 1987 antidumping duty orders.

NTN contends that Commerce unlawfully: (1) conducted a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) for outstanding 1976 and 1987 antidumping duty orders; (2) used affiliated supplier's cost of production for inputs when it was higher than the transfer price; (3) denied a pricebased level of trade adjustment when matching constructed export price sales to sales of the foreign like product; (4) rejected NTN's reported level of trade selling expenses and reallocated NTN's United States indirect selling expenses without regard to level of trade; (5) used Commerce's 99.5% arm's length test to compare NTN's home market selling prices to those of NTN's affiliated and unaffiliated parties; (6) included certain NTN sales that were allegedly outside the ordinary course of trade in the dumping margin and constructed value profit calculations; (7) strictly relied upon the sum-of-deviations methodology for the model match analysis; and (8) added an amount to NTN's selling expenses that was allegedly incurred in financing cash deposits for antidumping duties.

Koyo contends that Commerce unlawfully: (1) conducted a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) for outstanding 1976 and 1987 antidumping duty orders; (2) applied adverse facts available to Koyo's further manufactured tapered roller bearings; and (3) used Koyo's entered value to establish the assessment rate under 19 C.F.R. § 351.212(b) (1998).

Timken contends that Commerce unlawfully: (1) applied adverse facts available to Koyo's entered values; and (2) permitted NTN to exclude certain expenses attributable to non-scope merchandise from its reported United States selling expenses.

BACKGROUND

The administrative review at issue involves the period of review ("POR") covering October 1, 1997, through September 30, 1998.² Commerce published the preliminary results of the subject reviews on October 1, 1999. See Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Revoke in-Part of 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") 64 Fed.Reg. 53,323. Commerce published the Final Results at issue on March 6, 2000. See 65 Fed.Reg. 11,767.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (2000) and 28 U.S.C. § 1581(c) (2000).

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 twostep 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 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' 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]to 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...