Ntn Corp. v. U.S.

• Decision Date: 03 February 2004
• Docket Number: SLIP OP. 04-11. No. 00-09-00443.
• Citation: 306 F.Supp.2d 1319
• Parties: NTN CORPORATION, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc., NTN-Bower Corporation and NTN-BCA Corporation, Plaintiffs, v. UNITED STATES, Defendant, and Timken U.S. Corporation, Defendant-Intervenor.
• Court: U.S. Court of International Trade

306 F.Supp.2d 1319

NTN CORPORATION, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc., NTN-Bower Corporation and NTN-BCA Corporation, Plaintiffs, v. UNITED STATES, Defendant, and Timken U.S. Corporation, Defendant-Intervenor.

SLIP OP. 04-11. No. 00-09-00443.

United States Court of International Trade.

February 3, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, Carolyn D. Amadon and Shannon N. Rickard) for NTN Corporation, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc., NTN-Bower Corporation and NTN-BCA Corporation, plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Claudia Burke); of counsel, David R. Mason and Arthur D. Sidney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, defendant.

Stewart and Stewart, Washington, DC (Terence P. Stewart, Geert De Prest and Lane S. Hurewitz) for The Timken U.S. Corporation, defendant-intervenor.

OPINION

TSOUCALAS, Senior Judge.

Plaintiffs, NTN Corporation, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc., NTN-Bower Corporation and NTN-BCA Corporation (collectively "NTN"), move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the United States Department of Commerce, International Trade Administration's ("Commerce") final determination entitled Final Results of Antidumping Duty Administrative Reviews and Revocation of Orders in Part on Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom ("Final Results"), 65 Fed.Reg. 49,219 (August 11, 2000). The Torrington Company ("Timken"), as defendant-intervenor, supports Commerce's arguments that the Final Results are supported by substantial evidence and in accordance with law.¹

Specifically, NTN contends that Commerce erred in: (1) restating NTN's home-market and United States inland freight expenses and unjustifiably applied facts available; (2) using adverse facts available margins for United States sales of NTN models compared to sales to home-market affiliates; (3) including export price ("EP") sales in its calculation of the constructed export price ("CEP") profit adjustment; (4) not calculating CEP profit on a level-of-trade ("LOT") basis; (5) recalculating NTN's home-market inventory carrying costs and refusing to adjust normal value ("NV") for all home-market commissions; (6) reallocating NTN's United States and home-market selling expenses without regard to LOT; (7) including NTN'S sample sales and sales with allegedly abnormally high profits in the calculation of NV and constructed value ("CV") profit; (8) making adjustments to NTN's cost of production ("COP") and CV; and, (9) failing to use CV after disregarding below-cost sales from the calculation of NV.

BACKGROUND

The administrative determination at issue concerns the antidumping duty order on antifriction bearings (other than tapered roller bearings) and parts thereof from Japan for the period of review covering May 1, 1998, through April 30, 1999. See Final Results, 65 Fed.Reg. at 49,219. On April 6, 2000, Commerce published the preliminary results of the subject review. See Preliminary Results of Antidumping Duty Administrative Reviews, Partial Rescission of Administrative Reviews, and Notice of Intent to Revoke Orders in Part on Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Sweden, Singapore and the United Kingdom, ("Preliminary Results") 65 Fed.Reg. 18,033.

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

The Court will uphold Commerce's final determination in an antidumping administrative review 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. National Resources Defense Council, 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 Dep't of Commerce, 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 Properly Restated NTN's Home-Market and United States Inland Freight Expenses and Justifiably Applied Facts Available

A. Statutory Background

Under the antidumping duty statute, Commerce may determine that imported merchandise is sold in the United States "at less than its fair value," and that such practice causes material injury to a domestic industry. See 19 U.S.C. § 1673 (1994). Once such a determination is made, Commerce may levy an antidumping duty upon such merchandise. See id. The antidumping duty is "in an amount equal to the amount by which the normal value exceeds the export price ... for the merchandise." Id.² Section 1677a(c) of Title 19 of the United States Code specifies increases and reductions to the price used to establish export price ("EP") and constructed export price ("CEP"). See 19 U.S.C. § 1677a(c) (1994). Specifically, the statute states that the price used to establish EP and CEP is increased "when not included in such price, the cost of all containers and coverings and all other costs, charges, and expenses incident to placing the subject merchandise in condition packed ready for shipment to the United States." 19 U.S.C. § 1677a(c)(1). The EP and CEP is decreased by "the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, and United States import duties, which are incident to bringing the subject merchandise from the original place of shipment in the exporting country to...