Koyo Seiko Co., Ltd. v. U.S.

• Decision Date: 01 February 2002
• Docket Number: Slip Op. 02-11.,Court No. 98-06-02274.
• Citation: 186 F.Supp.2d 1332
• Parties: KOYO SEIKO CO., LTD. and Koyo Corporation of USA; NSK Ltd. and NSK Corporation; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; and the Timken Company, Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

186 F.Supp.2d 1332

KOYO SEIKO CO., LTD. and Koyo Corporation of USA; NSK Ltd. and NSK Corporation; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; and the Timken Company, Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant.

Slip Op. 02-11.

Court No. 98-06-02274.

United States Court of International Trade.

February 1, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Powell, Goldstein, Frazer & Murphy LLP (Peter O. Suchman, Neil R. Ellis and Elizabeth C. Hafner), Washington, DC, for Koyo, plaintiff and defendant-intervenor.

Lipstein, Jaffe & Lawson, L.L.P. (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson), Washington, DC, for NSK, plaintiff and defendant-intervenor.

Barnes, Richardson & Colburn (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Clarice K.M. McCauley), Chicago, IL, for NTN, plaintiff and defendant-intervenor.

Stewart and Stewart (Terence P. Stewart, William A. Fennell and Patrick J. McDonough), Washington, DC, for Timken, plaintiff and defendant-intervenor.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Lucius B. Lau); Joan L. Mackenzie and Barbara Campbell Potter, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for defendant, of counsel.

OPINION

TSOUCALAS, Senior Judge.

This consolidated action concerns the claims raised by: Koyo Seiko Co., Ltd. and Koyo Corporation of USA (collectively "Koyo"); NSK Ltd. and NSK Corporation (collectively "NSK"); NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation (collectively "NTN"); and The Timken Company ("Timken"), plaintiffs and defendant-intervenors, that 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 results of administrative review of: (1) tapered roller bearings and parts thereof, finished and unfinished, from Japan; and (2) tapered roller bearings, four inches or less in outside diameter, and components thereof, from Japan, entitled Final Results of Antidumping Duty Administrative Reviews and Termination 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"), 63 Fed.Reg. 20,585 (April 27, 1998).

Specifically, Koyo argues that Commerce: (1) failed to calculate constructed value profit so that home market movement expenses are excluded from the gross unit price; (2) erred in Commerce's decision to use the entered value of the subject merchandise to determine assessment rates; (3) erred in Commerce's calculation of marine insurance charges; (4) erred in Commerce's calculation of certain constructed value commissions and direct selling expenses; and (5) wrongly used Koyo's product nomenclature in Commerce's computer program. NSK asserts that: (1) Commerce's model matching program is not supported by substantial evidence; and (2) Commerce erred in determining NSK's general and administrative expenses factor in the cost of production calculation. NTN alleges that Commerce erred in: (1) determining that NTN's sample and small-quantity home market sales are within the ordinary course of trade (2) denying an adjustment to NTN's United States indirect selling expenses for expenses purportedly related to the financing of antidumping duty cash deposits; (3) disallowing an adjustment to foreign market value for NTN's home market discounts; and (4) reallocating NTN's selling expenses without regard to level of trade and denying a level of trade adjustment. Timken contends that Commerce: (1) erred by failing to adjust Koyo's further-manufactured import prices to reflect inventory carrying costs associated with further-manufacturing in the United States; and (2) committed a clerical error in calculating NTN's indirect selling expenses for United States constructed export price sales.

BACKGROUND

The administrative review at issue arose from two antidumping orders: Antidumping Duty Order on Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 41 Fed.Reg. 34,974 (Aug. 18, 1976),¹ and Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, 52 Fed.Reg. 37,352 (Oct. 6, 1987). The reviews for the period 1992-93 were initiated on November 17, 1993. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 58 Fed. Reg. 60,600 (Nov. 17, 1993). The reviews for the period 1993-94 were initiated on November 14, 1994. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 59 Fed.Reg. 56,459 (Nov. 14, 1994).² The preliminary results of the reviews were published on May 20, 1996. See Preliminary Results of Antidumping Duty Administrative Reviews and Termination 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"), 61 Fed.Reg. 25,200. The final results of the reviews were published on April 27, 1998. See Final Results, 63 Fed. Reg. 20,585.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994).

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 two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. ("Chevron"), 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 ____, ____ 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, 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...