Nsk Ltd. v. U.S.
| Decision Date | 20 August 2004 |
| Docket Number | Court No. 02-00627.,SLIP OP. 04-105. |
| Parties | NSK LTD. and NSK Corporation, et al., Plaintiffs, v. UNITED STATES, Defendant, and Timken U.S. Corp., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Wilkie Farr & Gallagher, (Kenneth J. Pierce, Miriam A. Bishop, and Robert E. DeFrancesco) for Plaintiff and Defendant-Intervenor Isuzu Motors, Ltd.
Stewart and Stewart, (Terence P. Stewart, William A. Fennell, and Lane S. Hurewitz) for Plaintiffs and Defendant-Intervenors MPB Corp. and Timken U.S Corp.,1 respectively.
Crowell & Moring, LLP, (Matthew Philip Jaffe, Robert A. Lipstein, and Grace Lawson) for Plaintiffs and Defendant-Intervenors NSK Corp., NSK Ltd., NSK Bearings Europe, Ltd.
Barnes, Richardson & Colburn, (Donald J. Unger and Kazumune V. Kano) for Plaintiffs and Defendant-Intervenors NTN Corp., NTN Bearing Corp. of America, American NTN Bearing Manufacturing Corp., NTN Driveshaft, Inc., and NTN-BCA Corp.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; Paul D. Kovac, Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; and Peter G. Kirchgraber, Philip Curtin, Elizabeth Doyle, Marisa Goldstein, Peter Kaldes, Barbara Tsai, Attorney Advisors, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant United States.
In this action, Plaintiffs NSK Ltd., NSK Corp., (collectively "NSK Japan"); NSK Bearings Europe, NSK Corp., (collectively, "NSK Europe"); NTN Corp., NTN Bearing Corp. of America, American NTN Bearing Manufacturing Corp., NTN Driveshaft, NTN-BCA Corp., (collectively, "NTN"); MPB Corp. ("MPB"); Asahi Seiko Co. ("Asahi"); and Isuzu Motors, Ltd. ("Isuzu") challenge the final results of an administrative review issued by the United States Department of Commerce ("Commerce") with respect to Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom; Final Results of Antidumping Administrative Reviews, 67 Fed.Reg. 55,780 (Aug. 30, 2002) ("Final Results"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2002). For the following reasons, Commerce's determination is affirmed in part and remanded in part.
On May 15, 1989, the Department published in the Federal Register the antidumping duty orders on ball bearings ("BBs") and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom and on spherical plain bearings and parts thereof from France. Antidumping Duty Order and Amendment to the Final Determination of Sales at Less Than Fair Value: Ball Bearings and Parts Thereof From Thailand, 54 Fed.Reg. 20,909 (May 15, 1989) ("Original Investigation"). On June 19, 2001, Commerce published a notice of initiation of the twelfth administrative review of these orders, covering a period of review ("POR") of May 1, 2000, through April 30, 2001, for the subject Japanese BBs. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 66 Fed.Reg. 32,934 (June 19, 2001) ("Initiation of Twelfth Administrative Review").
Commerce published the preliminary results in this administrative review in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, and The United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews and Partial Rescission of Administrative Reviews, 67 Fed.Reg. 17,361 (April 10, 2002) ("Preliminary Results"). Commerce issued the Final Results on August 30, 2002. The scope of this order covers ball bearings, mounted or unmounted, and parts thereof, including all antifriction bearings that employ balls as the rolling element. Final Results, 67 Fed.Reg. at 55,780. Products that fall under these parameters include antifriction balls, BBs with integral shafts, BBs (including radial BBs) and parts, and housed or mounted BB units and parts.2 Id. In the Final Results, Commerce found a 6.07% weighted-average margin for NSK Japan, 16.87% for NSK Europe, 9.72% for NTN, 2.51% for Asahi, and 73.55% for Isuzu. See id. at 55,781.
Asahi, NSK Europe, and NSK Japan challenge Commerce's decision to assign a zero margin to sales above normal value when calculating the weighted average dumping margin. Commerce and Timken argue that Commerce's methodology is supported by substantial evidence and is in accordance with law.
Asahi claims that, because service was made to it after the regulatory deadline by Torrington, Commerce improperly initiated its administrative review. Commerce and Torrington posit that Commerce conducted the administrative review of Asahi in accordance with law.
Asahi disputes Commerce's use of model-specific methodology to conduct its below-cost test. Commerce and Torrington argue that its methodology is supported by substantial evidence and is in accordance with law.
Commerce and Timken argue that Isuzu did not exhaust its administrative remedies and thus is now precluded from relying upon certain proprietary information to support its corroboration argument. Isuzu claims, on the contrary, that the Government waived the exhaustion argument by consenting to its access to information protected under the Judicial Protective Order in this case.
Isuzu challenges Commerce's adverse facts available determination, applying the highest calculated rate and corroborating it with contemporaneous sales, after Isuzu did not cooperate in this review. Commerce and Timken argue that Commerce's choice of adverse facts available rate is supported by substantial evidence and is in accordance with law.
MPB claims that Commerce's determination to accept NTN's reported cost data is erroneous. NTN argues that it reported its cost data accurately and Commerce agrees that NTN responded adequately to the questionnaires.
NSK Europe states that Commerce improperly interpreted "foreign like product" for calculating constructed value. Commerce and Timken say that the Federal Circuit has affirmed Commerce's interpretation.
NTN argues that Commerce incorrectly applied adverse facts available in calculating its home-market and U.S. freight expenses. Commerce, MPB, and Timken state that Commerce's methodology is supported by substantial evidence and is in accordance with law.
NTN challenges Commerce's treatment of inputs that NTN obtained from affiliated suppliers in calculating cost of production and constructed value. Commerce, Torrington, and Timken argue that Commerce's determination is supported by substantial evidence and is in accordance with law.3
NTN points out that there were clerical errors in the amended final results computer program that affected the accuracy of NTN's dumping margin. Commerce agrees and requests a remand to exclude export price sales from NTN's U.S. freight and warehouse expense calculations.
This court will uphold an administrative antidumping 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) (2002); SKF USA v. INA Walzlager Schaeffler KG, 180 F.3d 1370, 1374 (Fed.Cir.1999). Aimcor, Alabama Silicon, Inc. v. United States, 154 F.3d 1375, 1378 (Fed.Cir.1998) (quoting Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). "[T]he 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. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). It is not the court's duty to "weigh the wisdom of, or to resolve any struggle between, competing views of the public interest, but rather to respect legitimate policy choices made by the agency in interpreting and applying the statute." Suramerica de Aleaciones Laminadas v. United States, 966 F.2d 660, 665 (Fed.Cir.1992).
In examining an agency's interpretation of a statute, this court is confronted with two questions. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the court must consider if "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. If Congress has not spoken directly on the issue, this court cannot simply impose its own construction of the statute, but instead looks at whether the agency's interpretation "is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. "[I]t is not necessary for a court to find that the agency's construction was the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Fed. Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981). A court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978).
Commerce's Decision to Assign a Zero Margin to Sales Above Normal Value in Calculating the Dumping Margin Is Supported by Substantial Evidence and Is In accordance with Law
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