NSK LTD. v. US

• Decision Date: 24 August 1992
• Docket Number: Court No. 91-08-00578.
• Citation: 16 CIT 745,798 F. Supp. 721
• Parties: NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES, Defendant, the Torrington Company; Federal-Mogul Corporation, Defendants-Intervenors.
• Court: U.S. Court of International Trade

798 F. Supp. 721

16 CIT 745

NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES, Defendant, the Torrington Company; Federal-Mogul Corporation, Defendants-Intervenors.

Court No. 91-08-00578.

United States Court of International Trade.

August 24, 1992.

Coudert Brothers, Robert A. Lipstein, Matthew P. Jaffe and Nathan V. Holt, Washington, D.C., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (Velta A. Melnbrencis, of counsel), Stephen J. Claeys, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Geert De Prest, John M. Breen and Amy S. Dwyer, Washington, D.C., for defendant-intervenor The Torrington Co.

Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley and Joseph A. Perna, V, Washington, D.C., for defendant-intervenor Federal-Mogul Corp.

OPINION

TSOUCALAS, Judge:

Plaintiffs, NSK Ltd. and NSK Corporation ("NSK"), move pursuant to Rule 56.1 of the Rules of this Court for partial judgment on the agency record alleging that the Department of Commerce, International Trade Administration's ("ITA") refusal to correct an alleged clerical error in relation to the cost of production for one of NSK's cylindrical roller bearings was not supported by substantial evidence on the record and not in accordance with law. NSK requests this Court to remand this action to the ITA to correct this alleged error or, in the alternative, to use NSK's suggested alternative cost of production data for the cylindrical roller bearing at issue as "best information available" ("BIA").

The administrative determination under review is the ITA's final results in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 56 Fed.Reg. 31,754 (1991). Substantive issues raised by NSK in the underlying administrative proceeding were addressed by the ITA in the issues appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review ("Issues Appendix"), 56 Fed.Reg. 31,692 (1991).

Background

On June 11, 1990, the ITA initiated an administrative review of ball bearings, cylindrical roller bearings, spherical plain bearings and parts thereof from Japan. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand and the United Kingdom Initiation of Antidumping Administrative Reviews ("Initiation"), 55 Fed.Reg. 23,575 (1990). NSK participated in this review. Administrative Record Public ("AR Pub.") Doc. 4.

ITA reviewed NSK's costs of production for cylindrical roller bearings because the ITA had determined in the original less than fair value investigation that NSK was selling cylindrical roller bearings in its home market at below cost of production prices. See Final Determinations of Sales at Less Than Fair Value; Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan, 54 Fed.Reg. 19,101, 19,107 (1989).

On October 18, 1990, NSK submitted to the ITA its section D questionnaire response containing cost of production information for the part in question. AR Pub. Doc. 406.

On March 15, 1991, the ITA published its preliminary determination in the administrative review finding that NSK sold cylindrical roller bearings at less than fair value during the period of review and at prices less than the cost of production in its home market. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts thereof from Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Antidumping Duty Administrative Reviews ("Preliminary Results"), 56 Fed.Reg. 11,186, 11,188-89 (1991). The margin calculated for NSK's cylindrical roller bearings was 54.77%. Preliminary Results, 56 Fed. Reg. at 11,189.

NSK says it was surprised by its high margin in the Preliminary Results and attempted to determine why such a high margin had been imposed. NSK states that it discovered that it had provided incorrect cost of production data for the rollers for one type of cylindrical roller bearing which accounted for many of NSK's cylindrical roller bearing sales in the U.S. market. NSK alleges that its reported cost of production was ten times the actual cost of production and that this accounted for much of NSK's margin. Memorandum of Points and Authorities in Support of Motion for Partial Judgment on the Agency Record ("NSK's Memorandum") at 5-6.

On March 20, 1991, NSK submitted a letter to the ITA alleging that NSK had supplied the ITA with inaccurate cost of production data for the part in question. NSK requested the ITA to have a verification team, which was in Japan at that time on another case, verify NSK's corrected information. AR Pub.Doc. 762. NSK stated that it had recently converted production of this part from a batch manufacturing process to a continuous manufacturing process which vastly reduced processing time for each part, but that NSK's computer department had failed to make the required change in the formula used to calculate processing time for the part at issue. As a result, when NSK submitted its cost of production data for the part in question, it submitted the out of date, longer processing time for that part which resulted in vastly increasing its cost of production. NSK's Memorandum at 3-7.

In its March 20, 1991 letter, NSK alleged that its clerical error was obvious from an examination of the administrative record before the ITA at the time of the Preliminary Results. NSK stated that the production costs for the roller in question were "more than 5 times the highest reported costs, and nearly 10 times the cost for the most similar rollers." AR Pub.Doc. 762. NSK alleged that this was sufficient information for the ITA to determine that NSK had made a clerical error which should be corrected. Id.

On April 11, 1991, NSK submitted its pre-hearing brief in which it expanded its presentation of evidence of an obvious clerical error, submitted alleged correct data, and suggested that if the ITA refused to use the corrected data, that the ITA use cost of production data for the next largest roller size as BIA. AR Pub.Doc. 834.

On July 11, 1991, the ITA published its Final Results in this proceeding. Final Results, 56 Fed.Reg. 31,754. ITA stated that NSK's new information was rejected as untimely. Issues Appendix, 56 Fed. Reg. at 31,741-42. ITA also stated that it was unable to determine from information on the record that NSK's original submission of information was in error, or that the newly submitted information was correct. Id. ITA decided to use NSK's originally submitted information. Id. at 31,742. NSK's final margin for cylindrical roller bearings was 51.82%. Final Results, 56 Fed.Reg. at 31,756.

Discussion

The Court's jurisdiction over this matter is derived from 28 U.S.C. § 1581(c) (1988).¹

A final determination by the ITA in an administrative proceeding will be sustained unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).

This Court has also stated "that fair and accurate determinations are fundamental to the proper administration of our dumping laws" and that "courts have uniformly authorized the correction of any clerical errors which would affect the accuracy of a determination." Koyo Seiko Co. v. United States, 14 CIT ___, ___, 746 F.Supp. 1108, 1110 (1990); see, e.g., Daewoo Elecs. Co. v. United States, 13 CIT 253, 279-80, 712 F.Supp. 931, 954 (1989); Asociacion Colombiana de Exportadores v. United States, 13 CIT 13, 28, 704 F.Supp. 1114, 1126 (1989), aff'd, 901 F.2d 1089 (Fed.Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990); Serampore Indus. Pvt. Ltd. v. United States Dep't of Commerce, 12 CIT 825, 834, 696 F.Supp. 665, 673 (1988); Gilmore Steel Corp. v. United States, 7 CIT 219, 223-24, 585 F.Supp. 670, 674 (1984); Atlantic Sugar, Ltd. v. United States, 1 CIT 211, 511 F.Supp. 819 (1981).

Defendant-intervenor Federal-Mogul Corporation took no part in this phase of this proceeding since it does not produce cylindrical roller bearings and therefore does not have standing to support the contested determination in regard to NSK's cylindrical roller bearings. Federal-Mogul Corporation's Response to Plaintiffs' Motion for Judgment on the Agency Record at 2.

1. Clerical Error

ITA has promulgated a regulation which sets time limits on the submission of factual information in administrative reviews. The regulation states in pertinent part:

§ 353.31 Submission of factual information.

(a) Time limits in general. (1) Except as provided in paragraphs (a)(2) and (b) of this section, submissions of factual information for the Secretary's consideration shall be submitted not later than:

. . . . .

(ii) For the Secretary's final results of an administrative review under § 353.22(c) or (f), the earlier of the date of publication of notice of preliminary results of review or 180 days after the date of publication of notice of initiation of the review;

....

(2) Any interested party ... may submit factual information to rebut, clarify, or correct factual information submitted by an interested party ... at any time prior to the deadline provided in this section

...