NSK LTD. v. US

• Citation: 17 CIT 590,825 F. Supp. 315
• Decision Date: 17 June 1993
• Docket Number: No. 91-08-00578.,91-08-00578.
• Parties: NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

825 F. Supp. 315

17 CIT 590

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

No. 91-08-00578.

United States Court of International Trade.

June 17, 1993.

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

Stuart E. Schiffer, Acting 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, 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., Patrick J. McDonough, Geert De Prest, John M. Breen and Amy S. Dwyer, Washington, DC, for defendant-intervenor The Torrington Co.

Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley, Joseph A. Perna, V and Larry Hampel, Washington, DC, 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 as to Counts II, III, IV, V, VI and IX of its complaint claiming that the Department of Commerce, International Trade Administration ("Commerce") (1) committed various clerical errors, (2) improperly failed to exclude bearings not subject to the antidumping duty orders from this review, (3) improperly classified NSK's after-market sales to original equipment manufacturers ("OEMs") at the same level of trade as other sales to OEMS, and (4) improperly failed to compare sales at comparable quantities.¹

The administrative determination under review is Commerce's final results in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of Anti-dumping Duty Administrative Reviews ("Final Results"), 56 Fed.Reg. 31,754 (1991). Substantive issues raised by NSK in the underlying administrative proceeding were addressed by Commerce in the Issues Appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the 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). NSK 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, Commerce published its Final Results in this proceeding. Final Results, 56 Fed.Reg. 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

Plaintiffs contest several clerical errors in the Final Results.

A. Manufacturer Codes

First, plaintiffs claim that Commerce erred in failing to correct NSK's error in coding the identity of its suppliers of bearings sold by NSK in the home market. Subsequent to its original computer tape which contained manufacturer codes, NSK submitted a revised computer tape to correct any errors in the initial tape. In this review, Commerce used manufacturer codes supplied by NSK in this revised computer tape to select the proper foreign market sales for comparison with NSK's United States sales. NSK now asserts that the manufacturer codes submitted in the revised computer tape are also incorrect and further claims that Commerce should have either accepted manufacturer codes revised for the second time from NSK, or alternatively, not considered the manufacturer of bearings in comparing United States and foreign market sales.

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).

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"), 16 CIT ___, ___, 798 F.Supp. 721, 725 (1992), aff'd, 996 F.2d 1236 (Fed.Cir. May 18, 1993); see also 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.

Commerce cannot wait forever for a respondent to submit corrected data. NSK was given one opportunity to change its submission of erroneous manufacturer codes. Apparently, however, the revised tape submitted by NSK to correct its data still contained erroneous manufacturer codes. Although NSK had until Commerce's publication of its preliminary determination on March 15, 1991 to request Commerce to correct the manufacturing codes, NSK failed to review its computer tape until afterwards. NSK claims that it "had no reason to examine its December 14, 1990 computer tape before June 23, 1991, the date on which the Department released its final computer program." Memorandum of Points and Authorities in Support of Motion for Partial Judgment on the Agency Record ("Plaintiffs' Memorandum") at 19. To the contrary, NSK cannot shift its burden to Commerce due to its own carelessness.

It is the respondent's obligation to supply Commerce with correct information. See 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 I, 16 CIT at ___, 798 F.Supp. at 725.

In this case, the error was not obvious and Commerce was justified in relying upon NSK's "corrected" data.

NSK alternatively claims that if NSK's second corrected information is not accepted, then Commerce should be ordered by the Court to disregard manufacturer codes when comparing NSK's United States and foreign market sales.

NSK is erroneous in suggesting that Commerce should be required to disregard the codes altogether. When selecting which foreign market value sales to use for comparison to U.S. sales, 19 U.S.C. § 1677b(a)(1) (1988) grants Commerce the authority to use foreign market value sales of "such or similar merchandise."

Thus, in this case, it is within Commerce's discretion to use manufacturer codes contained in NSK's revised computer tape and, therefore, its decision was reasonable and is hereby affirmed.

B. Water Pump Integral Shaft Bearings

NSK claims that Commerce committed a second clerical error by failing to correct NSK's error in assigning the wrong antidumping duty rate to water pump integral shaft bearings. During the review period, NSK sold water pump integral shaft...