NSK LTD. v. US, Court No. 90-06-00309.

• Decision Date: 21 May 1992
• Docket Number: Court No. 90-06-00309.
• Citation: 16 CIT 401,794 F. Supp. 1156
• Parties: NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES and the United States Department of Commerce, Defendants, The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

794 F. Supp. 1156

16 CIT 401

NSK LTD. and NSK Corporation, Plaintiffs, v. UNITED STATES and the United States Department of Commerce, Defendants, The Timken Company, Defendant-Intervenor.

Court No. 90-06-00309.

United States Court of International Trade.

May 21, 1992.

Donohue and Donohue, Joseph F. Donohue, Jr. and Kathleen C. Inguaggiato, New York City, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Velta A. Melnbrencis, of counsel, Joan L. MacKenzie, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendants.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., John M. Breen and Amy S. Dwyer, Washington, D.C., for defendant-intervenor.

TSOUCALAS, Judge:

This action, brought by NSK Ltd. and NSK Corporation ("NSK"), challenges the final results of the Department of Commerce, International Trade Administration ("ITA" or "Commerce"), in an administrative review of antidumping findings for Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review ("Final Results"), 55 Fed.Reg. 22,369 (1990), for NSK for the period of April 1, 1974 through July 31, 1980. The investigation by Commerce likewise covered tapered roller bearings ("TRBs") for Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. ("Koyo"). See Koyo Seiko Co. v. United States, 16 CIT ___, 796 F.Supp. 517 (1992).

On October 31, 1973, Timken filed a petition requesting the imposition of antidumping duties on TRBs from Japan. Tapered Roller Bearings From Japan; Antidumping Proceeding Notice, 38 Fed.Reg. 33,408 (1973). On June 5, 1974, Treasury published a notice to withhold appraisement of NSK entries of the subject merchandise, made on or after June 5, 1974. Tapered Roller Bearings From Japan — Antidumping; Withholding of Appraisement Notice, 39 Fed.Reg. 19,969 (1974). A determination of sales at less than fair value was published on September 6, 1974. Tapered Roller Bearings From Japan — Antidumping; Determination of Sales at Less Than Fair Value, 39 Fed.Reg. 32,337 (1974).

Master lists were issued on or about May 18, 1978, for NSK entries covering the period May 1, 1974 through July 31, 1976. Administrative Record ("AR") (Pub.) Doc. 50 (Attachment 1). Master lists for the period August 1, 1976 through December 31, 1976 were circulated on or about May 31, 1979. AR (Conf.) Doc. 33 (Attachment 2). Master lists for the period January 1, 1977 through March 31, 1978 were circulated on or about May 23, 1979, and amended July 30, 1979. AR (Conf.) Doc. 38 (Attachment 3).

Effective January 2, 1980, the authority for administering the antidumping law was transferred from Treasury to the United States Department of Commerce by Exec. Order No. 12,188, 3 C.F.R. 131 (1980). Subsequently, Commerce began to conduct administrative reviews of unliquidated entries pursuant to 19 U.S.C. § 1675 (1980).

On or about August 12, 1980, Commerce requested information covering NSK's sales for the period May 1, 1979 through July 31, 1980. During 1981-84 counsel for NSK made several inquiries of Commerce concerning the progress being made with respect to the completion of NSK entries. See AR (Pub.) Docs. 145, 152, 153, 216 and 227. During this period, on September 1, 1981, Commerce published preliminary results for forty known firms covered by the 1976 dumping finding; however, NSK was not included. Tapered Roller Bearings and Certain Components Thereof From Japan; Preliminary Results of Administrative Review and Tentative Revocation in Part of Antidumping Finding ("TRBs From Japan I"), 46 Fed.Reg. 43,864 (1981). In addition, preliminary results for NTN (another large Japanese manufacturer) were published on February 27, 1981. Tapered Roller Bearings and Certain Components Thereof From Japan; Preliminary Results of Administrative Review of Antidumping Finding; NTN Toyo Bearing Co., Ltd. and NTN Bearing Corporation of America; and Tentative Determination to Revoke in Part ("TRBs From Japan II"), 46 Fed.Reg. 14,371 (1981).

On March 9, 1984, Commerce issued final results for forty Japanese exporters subject to the September 1, 1981 preliminary results, relying on Treasury master lists as "best information available." Tapered Roller Bearings and Certain Components Thereof From Japan; Final Results of Administrative Review of Antidumping Finding ("TRBs From Japan III"), 49 Fed. Reg. 8,976 (1984). NSK was not included in these results.

On July 9, 1986, the ITA initiated an administrative review of NSK's entries running from April 1, 1974 through July 31, 1985. In the course of requesting information between 1974 and 1987, Commerce utilized three different methodologies related to selecting the similar merchandise to be compared with a U.S. sale when there was no identical home market model sold.

Commerce subsequently limited its investigation to the period from April 1, 1974 through July 31, 1980. Final Results, 55 Fed.Reg. at 22,369. On March 29, 1989, Commerce published section 751(a) preliminary results on NSK's entries covering the period from April 1, 1974 through July 31, 1980, which stated that based on best information available, the weighted average dumping margins for NSK ranged from 7.77% to 19.28%. Tapered Roller Bearings Four Inches or Less in Outside Diameter and Certain Components Thereof From Japan, Preliminary Results of Antidumping Duty; Administrative Review. 54 Fed.Reg. 12,938 (1989). On June 1, 1990, Commerce issued the final results for Koyo and NSK TRBs, finding that the dumping margins for NSK ranged between 4.99% to 23.43%. Final Results, 55 Fed. Reg. at 22,382.

NSK seeks judgment on the agency record claiming that Commerce's review of NSK's 1974-1980 sales was not in accordance with law, that Commerce treated NSK differently than other similarly situated companies, that Commerce's failure to use master lists was not in accordance with law, and that Commerce's use of best information available was not reasonable and not in accordance with law.

DISCUSSION

Pursuant to the Tariff Act of 1930, 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. N.L.R.B., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 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." The 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. Use of Master Lists

In this action, plaintiffs request this Court to order the liquidation of all entries entered between May 1, 1974 through March 31, 1978 in accordance with existing master lists. Commerce, however, claims that a section 751(a) review was in order. A section 751(a) review, however, "does not apply to entries which were on master lists issued before the effective date of the Act." The Timken Co. v. Regan, 4 CIT 174, 178, 552 F.Supp. 47, 51 (1982); Koyo Seiko, 16 CIT at ___, 796 F.Supp. at 521-22.

In the case at bar, master lists existed for entries entered between May 1, 1974 and March 31, 1978. Therefore, all entries subject to master lists existing prior to the date of transfer of jurisdiction must be liquidated accordingly.

2. Entries Not Covered by Master Lists

Several entries, specifically those entered between April 1 to April 30, 1974 and April 1, 1978 to July 31, 1980, were not covered by master lists. Thus, in accordance with the transitional rules shifting jurisdiction from Treasury to Commerce, a section 751 review was in order for these entries. See Trade Agreements Act of 1979, 19 U.S.C. § 1516a note (1980) (Effective Date; Transitional Rules).

NSK, however, claims that in conducting their review of NSK TRBs, Commerce treated NSK differently than other similarly situated companies. Indeed, on September 1, 1981, Commerce published preliminary results for forty known firms covered by the 1976 dumping finding. TRBs From Japan I, 46 Fed.Reg. at 43,864.

NSK also claims that Commerce reviewed NSK's 1974-80 sales pursuant to a review initiated in 1980 but never published the results, and the subsequent review of the same sales, which was begun in 1986, was not in accordance with the law.

It is well established that Commerce is granted tremendous deference in conducting an administrative review. Consumer Prod. Div., SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039 (Fed.Cir.1985). In this case, regarding the entries not covered by master lists, Commerce did not abuse their discretion in commencing a new review in 1986 because Koyo and NSK had been permitted to select what they considered to be similar home model TRBs and a foreign firm may not determine "similar" products for comparison of value. See generally, The Timken Co. v. United States, 10 CIT 86, 630 F.Supp. 1327 (1986).

Commerce's subsequent change in methodologies, however, from three factors to five factors was not reasonable and was merely another delay in the investigation. See Koyo Seiko, 16 CIT at ___, 796 F.Supp. at 523. Congress has encouraged Commerce to complete administrative reviews within twelve months. See 19 U.S.C. § 1675(a)(1) (1988). It has been determined, however, that this timetable is directory and not mandatory. Nakajima All Co. v. United States, 12 CIT 585, 691 F.Supp. 358...