NTN Bearing Corp. of America v. US

• Decision Date: 29 December 1994
• Docket Number: Slip Op. 94-200. Court No. 92-03-00168.
• Citation: 18 CIT 1178,881 F. Supp. 584
• Parties: NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Mfg. Corporation and NTN Corporation, Plaintiffs, v. UNITED STATES, United States Department of Commerce, and Ronald H. Brown, Secretary of Commerce, Defendants, The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

881 F. Supp. 584

18 CIT 1178

NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Mfg. Corporation and NTN Corporation, Plaintiffs, v. UNITED STATES, United States Department of Commerce, and Ronald H. Brown, Secretary of Commerce, Defendants The Timken Company, Defendant-Intervenor.

Slip Op. 94-200. Court No. 92-03-00168.

United States Court of International Trade.

December 29, 1994.

COPYRIGHT MATERIAL OMITTED

Barnes, Richardson & Colburn, Robert E. Burke, Donald J. Unger and Jesse M. Gerson, 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, Washington, DC (Linda S. Chang and Joan L. MacKenzie, Attorney-Advisors, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel), for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., William A. Fennell, Julie Chasen Ross and Edith A. Eisner, Washington, DC, for defendant-intervenor.

OPINION

TSOUCALAS, Judge:

Plaintiffs, NTN Bearing Corporation of America, American NTN Bearing Mfg. Corporation and NTN Corporation ("NTN"), commenced this action challenging certain aspects of the Department of Commerce, International Trade Administration's ("ITA" or "Commerce") final results of its third administrative review of certain tapered roller bearings ("TRBs") from Japan. Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 4,960 (Feb. 11, 1992), as amended by Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Amendment to Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 9,104 (Mar. 16, 1992), (collectively, "Final Results").

Specifically, plaintiffs claim that the ITA erred in (1) its refusal to employ a 10% maximum deviation limit on any single physical criterion employed by the ITA in their "sum of the deviation" methodology, which is used to determine similar merchandise sold in the home market; (2) basing foreign market value ("FMV") of TRB cups and cones sold in the United States upon prices created by splitting the price of sets sold in the home market; (3) matching U.S. sales with home market sales at different levels of trade when no sales of such or similar merchandise at the same level of trade were found in the home market; (4) its refusal to make a level of trade adjustment which would reflect the full differences in price levels between different levels of trade; (5) its refusal to use a period of six months, which represents a majority of the period of review, for purposes of the "extended period of time test" employed by the ITA as part of its test to exclude home market sales made at prices below cost of production ("COP"); (6) its refusal to use the interest rate reported by NTN, which rate took compensating deposits into account, for purposes of calculating credit expenses in Japan; (7) its use of certain home market sales to determine foreign market value which were inadequate to form a basis of foreign market value pursuant to 19 U.S.C. § 1677b(b) (1988); (8) its comparison of bearings of different design types; and (9) its commission of two clerical errors: namely, its failure to deduct discounts from home market price for purposes of the cost of production test and its failure to identify all possible identical or similar models sold in the home market. Plaintiffs' Motion and Memorandum in Support Thereof for Judgment on the Agency Record ("Plaintiffs' Brief") at 13-64.

Background

In 1976, the Treasury published a dumping finding, T.D. 76-227, with respect to TRBs from Japan. Tapered Roller Bearings and Certain Components Thereof From Japan, 41 Fed.Reg. 34,974 (Aug. 18, 1976). In 1981, Commerce clarified T.D. 76-227 to cover only TRBs four inches or less in outside diameter, and certain TRB components. Tapered Roller Bearings and Certain Components Thereof From Japan; Clarification of Scope of Antidumping Finding, 46 Fed.Reg. 40,550 (Aug. 10, 1981). In 1982, Commerce revoked T.D. 76-227 with respect to TRBs manufactured by NTN. Defendants' Memorandum in Partial Opposition to Plaintiffs' Motion for Judgment Upon the Agency Record ("Defendants' Brief") at 4.

In 1987, Commerce published another antidumping duty order on TRBs from Japan. Antidumping Duty Order, Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, 52 Fed.Reg. 37,352 (Oct. 6, 1987). This order included all TRBs and parts thereof manufactured by NTN and all TRBs over four inches in outside diameter and parts thereof manufactured by other manufacturers.

In August 1991, Commerce published its final results of its first administrative review of TRBs covered by the 1987 order. Tapered Roller Bearings, Finished and Unfinished, and Parts Thereof, From Japan; Final Results of Antidumping Duty Administrative Review, 56 Fed.Reg. 41,508 (Aug. 21, 1991). These final results have been contested by Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. ("Koyo") (Court No. 91-09-00704), NTN (Court No. 91-09-00695), and The Timken Company ("Timken") (Court No. 91-09-00697).

In February 1992, Commerce published the final results of its second administrative review of TRBs covered by the 1987 order. Tapered Roller Bearings, Finished and Unfinished, and Parts Thereof, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 4,951 (Feb. 11, 1992), covering the period October 1, 1988 through September 30, 1989. These final results have been contested by Timken (Court No. 92-03-00162), NTN (Court No. 92-03-00167), Koyo (Court No. 92-03-00169), and NSK (Court No. 92-03-00158).

In February of 1992, Commerce published the final results of the third administrative review of TRBs covered by the 1987 order, covering the period October 1, 1989 through September 30, 1990. Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 4,960 (Feb. 11, 1992). These final results have been contested by Koyo (Court No. 92-03-00156), Timken (Court No. 92-03-00161) and, in the present case, NTN (Court No. 92-03-00168).

In March of 1992, Commerce published an amendment to the final results for the third administrative review of TRBs covered by the 1987 order. Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Amendment to Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 9,104 (Mar. 16, 1992). These amended final results have been contested by Timken (Court No. 92-03-00161) and NTN (Court Nos. 92-03-00168 and 92-04-00257).

Discussion

This Court must uphold final results of an ITA administrative review unless the ITA 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 defined as "relevant evidence as 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). 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. Model Match Methodology

NTN argues that, for purposes of calculating dumping margins, Commerce compared dissimilar merchandise because it did not impose a ten percent limit upon deviation from the five-criteria model match methodology for selecting the most similar home market TRB model. It is NTN's position that it is unlawful and unreasonable to compare, on any basis, bearings that are radically different as to any one of the five physical criteria, and not to have placed an individual cap on each of the five criteria used. Thus, the 20% cost cap used does not ensure the physical similarity of bearings or comparable commercial value. Plaintiffs' Brief at 13-21.

The ITA asserts that when identical merchandise is not available in the home market for comparison with the merchandise sold to the United States, Commerce must select "similar" comparison merchandise based upon the physical characteristics of the merchandise being compared. Defendants' Brief at 9-10; 19 U.S.C. § 1677(16) (1988).¹ Commerce has been granted broad discretion to devise a methodology for determining what constitutes "similar" merchandise. See Smith-Corona Group v. United States, 713 F.2d 1568, 1571 (Fed.Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984).

In this review, the ITA compared home market sales of TRBs to U.S. sales according to five physical characteristics criteria, determining a "similar" bearing by computing a single factor, the "sum of the deviations," which is based on differences between the U.S. and home market bearings. With respect to each, ITA compared the variable cost of the "similar" home market bearing to that of the U.S. model. If the difference was greater than 20%, the ITA did not consider the pair to be "similar." If not, this cost difference was used to calculate an adjustment pursuant to 19 C.F.R. § 353.57(b) (1992). Commerce argues its actions are in accordance with law and well within the discretion it is granted as the merchandise selected had the same physical characteristics and was approximately equal in commercial value. Defendants' Brief at 10-28. Timken echoes the arguments made by Commerce. The Timken Company's Response to Plaintiffs' Rule 56.2 Motion for Judgment on the Agency Record ("Timken's Brief") at 15-24.

An accurate investigation requires that the merchandise used in the...