NTN Bearing Corp. of America v. US

• Decision Date: 13 July 1993
• Docket Number: Court No. 91-08-00577.
• Citation: 17 CIT 713,826 F. Supp. 1435
• Parties: NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Manufacturing Corp. and NTN Corporation, Plaintiffs, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

826 F. Supp. 1435

17 CIT 713

NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Manufacturing Corp. and NTN Corporation, Plaintiffs, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.

Court No. 91-08-00577.

United States Court of International Trade.

July 13, 1993.

Barnes, Richardson & Colburn, Robert E. Burke, Donald J. Unger, Kazumune V. Kano and Diane A. MacDonald, Chicago, IL, for plaintiffs.

Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis; of counsel: Stephen J. Claeys, Atty.-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Geert De Prest, John M. Breen and Margaret E.O. Edozien, Washington, DC, for defendant-intervenor The Torrington Co.

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

OPINION

TSOUCALAS, Judge:

Plaintiffs, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp. and NTN Corporation ("NTN"), move pursuant to Rule 56.1 of the Rules of this Court for partial judgment on the agency record as to Counts I, II, IV, VII, X, XI, XIII and XVII of their complaint claiming that the Department of Commerce, International Trade Administration ("Commerce" or "ITA"), (1) failed to correct errors in its determination which lead to tainted proceedings and unfairly high and inaccurate antidumping margins; (2) incorrectly calculated the variable costs of manufacturing merchandise sold in the home market due to an error in its program; (3) incorrectly rejected NTN's actual costs of production in favor of other "best information available"; (4) incorrectly included a theoretical amount for idled machinery not used in production and an amount representing NTN's loss on the disposal of fixed assets; (5) erroneously calculated margins on several sales to one purchase price customer twice due to the use of both an original and a revised tape; and (6) failed to publish an amended final determination.

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 NTN 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, 55 Fed.Reg. 23,575 (1990). NTN participated in this review. Id.

On March 15, 1991, the ITA published its preliminary determination in the administrative review. 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, 56 Fed.Reg. 11,186 (1991).

On July 11, 1991, the ITA published its Final Results in this proceeding. Final Results, 56 Fed.Reg. at 31,754.

Discussion

In reviewing a final determination of Commerce, this Court must uphold that 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) (1988). Substantial evidence has been defined as being "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, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 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).

1. Clerical Errors (Counts I and II)

First, NTN claims that Commerce committed various clerical errors. In its questionnaire for this review, issued on June 1, 1990 (Section A) and July 17, 1990 (Sections B-E), Commerce requested that respondents classify bearings based on certain criteria, including precision rating, into families. In its response to section B, NTN identified many different families and supplied a list of U.S. sales. On March 15, 1991, Commerce published its preliminary results and on April 11, 1991 NTN submitted its case brief detailing its comments to the preliminary results. NTN contends that at this stage it had "discovered two instances in the U.S. sales database for ball bearings (ESP transactions) which required a further explanation or a correction of information already on the record." Plaintiffs' Motion for Partial Judgment on the Agency Record ("Plaintiffs' Motion") at 11.

Specifically, NTN claims that the family code for five part numbers sold to the same U.S. customer incorrectly showed them to meet high precision bearing tolerances, rather than the standard precision bearing tolerances. NTN claims that this alleged error caused an inaccurate price differential and larger dumping margins.

The second alleged clerical error identified by NTN on April 11, 1991, involved four transactions which were reported as sales for U.S. consumption in NTN's response. NTN now asserts that these sales were made to a Canadian customer.

According to 19 U.S.C. § 1675(f) (1988 & Supp.1993), Commerce is afforded the discretion to correct clerical errors in final determinations "within a reasonable time after the determinations are issued." Commerce 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:

(i) For the Secretary's final determination, seven days before the scheduled date on which the verification is to commence;

(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 for submission of such factual information or, if later, 10 days after the date such factual information is served on the interested party....

(3) The Secretary will not consider in the final determination or the final results, or retain in the record of the proceeding, any factual information submitted after the applicable time limit....

19 C.F.R. § 353.31(a) (1991).

The preliminary results were published on March 15, 1991, while the 180-day period after initiation of review ended April 11, 1991. Therefore, according to the statute, any information provided after March 15, 1991 will be considered untimely and under § 353.31(a)(3), the Secretary need not accept it when making the final determination. In this case, the "new" information was submitted by NTN in its brief dated April 11, 1991 and is thus indisputably untimely.

Commerce "is not required to correct a respondent's errors when a respondent reported erroneous data but failed to timely correct it." See NSK Ltd. v. United States ("NSK I"), 17 CIT ___, ___, 825 F.Supp. 315, 318 (1993); see also NSK Ltd. v. United States ("NSK II"), 16 CIT ___, ___, 798 F.Supp. 721, 725 (1992), aff'd, 996 F.2d 1236 (Fed.Cir.1993); Sugiyama Chain Co. v. United States, 16 CIT ___, ___, 797 F.Supp. 989, 996 (1992). To do this would put an undue burden upon Commerce "and litigants might tend to become slovenly with submitted data." Sugiyama, 16 CIT at ___, 797 F.Supp. at 995.

It is "the respondent's obligation to supply Commerce with correct information." See NSK I, 17 CIT at ___, 825 F.Supp. at 319; see also Chinsung Indus. Co. v. United States, 13 CIT 103, 106, 705 F.Supp. 598, 601 (1989). If, however, a clerical error is "so egregious and so obvious that the failure to correct it was an abuse of discretion and undermined the interests of justice, the Court may remand the case to the ITA for adjustment of the calculations." Tehnoimportexport v. United States, 15 CIT 250, ___, 766 F.Supp. 1169, 1178 (1991). Furthermore, "an error in original information submitted by a respondent must be obvious from the administrative record in existence at the time the error is brought to the ITA's attention." NSK II, 16 CIT at ___, 798 F.Supp. at 725.

In NSK II, NSK similarly alleged a clerical error and in its pre-hearing brief NSK provided new information on the production process for the roller bearings at issue, as well as corrected cost of production information, in an attempt to convince Commerce to correct the alleged error. Id. at ___, 798 F.Supp. at 721.

In that...