Ntn Bearing Corp. of America v. U.S., Slip Op. 01-16.

• Decision Date: 23 February 2001
• Docket Number: Slip Op. 01-16.,Court No. 97-10-01801.
• Citation: 132 F.Supp.2d 1102
• Parties: NTN BEARING CORPORATION OF AMERICA, NTN Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation; NSK Ltd. and NSK Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, and The Torrington Company, Defendant-Intervenor and Plaintiff.
• Court: U.S. Court of International Trade

Page 1102

132 F.Supp.2d 1102

NTN BEARING CORPORATION OF AMERICA, NTN Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation;

NSK Ltd. and NSK Corporation;

Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, and The Torrington Company, Defendant-Intervenor and Plaintiff.

Slip Op. 01-16.

Court No. 97-10-01801.

United States Court of International Trade.

February 23, 2001.

Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, Carolyn D. Amadon and Shannon N. Rickard) for NTN Bearing Corporation of America, NTN Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation ("NTN").

Lipstein, Jaffe & Lawson, L.L.P., Washington, DC (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson) for NSK Ltd. and NSK Corporation ("NSK").

Powell, Goldstein, Frazer & Murphy LLP, Washington, DC (Neil R. Ellis and Elizabeth C. Hafner) for Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. ("Koyo").

Stuart E. Schiffer, Deputy Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis, Assistant Director); of counsel: Patrick V. Gallagher, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for defendant.

Stewart and Stewart, Washington, DC (Terence P. Stewart and Geert De Prest) for The Torrington Company ("Torrington").

JUDGMENT

TSOUCALAS, Senior Judge.

I. Standard of Review

The Court will uphold Commerce's redetermination pursuant to the Court's remand 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). 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).

II. Background

On June 5, 2000, this Court issued an opinion and order directing the United States Department of Commerce, International Trade Administration ("Commerce"), to: (1) annul all findings and conclusions made pursuant to the duty-absorption inquiry; (2) make adjustments pursuant to 19 U.S.C. § 1677a(c) (1994) to § 1677a(a)'s starting price for determining export price ("EP"); (3) make adjustments pursuant to § 1677a(c) and (d) to § 1677a(b)'s starting price for determining constructed export price ("CEP"); (4) articulate how the record supports its decision to recalculate NTN's home market indirect selling expenses without regard to level of trade; (5) clarify how Commerce complied with 19 U.S.C. §§ 1677e and 1677m (1994) by using facts available and applying an adverse inference with respect to NTN's alleged zero-price sample sales and, if Commerce determines that it conformed with the statutory framework, to include NTN sample sales in its United States sales database or, if Commerce determines that it did not adhere to all of the statutory prerequisite conditions, to give NTN the opportunity to remedy or explain any deficiency regarding its sample sales; and (6) clarify whether NTN was provided with notice and opportunity to respond pursuant to § 1677m(d) with regard to its cost of production ("COP") and constructed value ("CV") data. See NTN Bearing Corp. of America v. United States, 24 CIT ___, 104 F.Supp.2d 110 (2000). The administrative determination underlying the Court's decision in NTN Bearing is entitled Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 62 Fed.Reg. 54,043 (Oct. 17, 1997), as amended, Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore[,] Sweden and the United Kingdom; Amended Final Results of Antidumping Duty Administrative Reviews, 62 Fed.Reg. 61,963 (Nov. 20, 1997).

On September 5, 2000, Commerce submitted its Final Results of Redetermination Pursuant to Court Remand ("Remand Results"). In order to comply with the Court's decision in NTN Bearing, Commerce: (1) annulled all findings and conclusions made pursuant to its duty-absorption inquiry with respect to Koyo, NSK and NTN; (2) deducted the expenses associated with packing for export and freight delivery arrangements from the price used in the level-of-trade analyses; (3) articulated the reason why it recalculated NTN's home-market selling expenses without regard to level of trade; (4) provided NTN with an opportunity to remedy the deficiencies in information regarding its sample sales and, upon finding that NTN did not receive consideration for its zero-priced U.S. sample transactions, removed these sales from its analysis and recalculated NTN's margins; (5) provided NTN with an opportunity to remedy the deficiencies in information regarding its affiliated-party inputs and, upon NTN's refusal to supply information, used facts available to adjust NTN's reported costs; and (6) corrected certain transcription errors in its draft analysis memorandum.

Torrington and NTN submitted comments on the draft results issued by Commerce on August 18, 2000. NTN, Koyo and Torrington submitted comments to this Court regarding the Remand Results. Commerce submitted a reply to the parties' comments. NSK did not submit any comments.

III. Contentions of the Parties

Torrington continues to believe that Commerce has inherent authority to conduct the absorption inquiries in any review. Torrington also believes that the Court exceeded its power on judicial review in directing Commerce to annul its findings instead of permitting Commerce to reach a determination consistent with the Court's order.

Responding to Torrington's contentions, Koyo limits its comments to the issue of the legality of Commerce's duty-absorption inquiries. Koyo maintains that Torrington is raising the same arguments that the Court has repeatedly rejected and that Torrington provides no reason for the Court to reconsider the issue.

NTN agrees with Commerce's elimination of its zero-priced U.S. sample transactions from its margin analysis. NTN disagrees with Commerce's use of facts available regarding NTN's affiliated-party inputs for COP and CV calculations. Specifically, NTN maintains that it was not required to respond to Commerce's request for information, since the Court did not open the record on this issue. NTN believes that Commerce should have used the information already on the record and should not have resorted to facts available.

In addressing NTN's comments, Torrington argues, in essence, that the Court did not need to specifically direct Commerce to open the record in order for such action to be permissible. Torrington argues that such an overly narrow interpretation of the remand order would unlawfully diminish Commerce's fact-finding role.

Replying to NTN's comments, Commerce contends that it gave NTN the opportunity, through responses to a supplemental questionnaire, to remedy or explain the items for which Commerce needed clarification. Upon NTN's refusal to submit information regarding affiliated-party inputs and its insistence that Commerce use its data as reported, Commerce resorted to best information available under 19 U.S.C. § 1677b(e)(1) (1994). Commerce argues that although the Court did not order Commerce to open the record, Commerce has the discretion to open it since the Court did not prohibit it. Furthermore, Commerce argues that the information NTN provided in the original review did not allow it to determine in which bearing models the purchased components were used, making Commerce unable to restate NTN's costs on a model-specific basis. Commerce was then forced to resort to facts otherwise available. Commerce argues that the Court should not allow a party to benefit from its unwillingness to provide information for Commerce to use in complying with the statute.

IV. Analysis

A. Duty Absorption

This Court has repeatedly held that Commerce lacks statutory authority under 19 U.S.C. § 1675(a)(4)(1994) to conduct duty-absorption inquiries for antidumping duty orders issued prior to the January 1, 1995 effective date of the Uruguay Round Agreements Act, Pub.L. No. 103-465, 108 Stat. 4809 (1994). See SNR Roulements v. United States, 24 CIT ___, ___, 118 F.Supp.2d 1333, 1337 (2000); SKF USA Inc. v. United States, 24 CIT ___, ___, 116 F.Supp.2d 1257, 1260 (2000); SKF USA Inc. v. United States, Slip Op. 00-106, 2000 WL 1225803, *3 (Aug. 23, 2000); RHP Bearings Ltd. v. United States, 24 CIT ___, ___, 110 F.Supp.2d 1043, 1052-53 (2000); FAG Italia S.p.A. v. United States, Slip Op. 00-82, 2000 WL 978462, *5 (July 13, 2000); SKF USA Inc. v. United States, Slip Op. 00-81, 2000 WL 977373, *3 (July 12, 2000); NTN Bearing Corp. of America v. United States, 24 CIT ___, ___, 104 F.Supp.2d 110, 117 (2000); SKF USA Inc. v. United States, Slip Op. 00-58, 2000 WL 726944, *3 (June 1, 2000); SKF USA Inc. v. United States, 24 CIT ___, ___, 94 F.Supp.2d 1351, 1357-59 (2000). Torrington presents no arguments compelling the Court to reconsider the issue and hold otherwise.

Similarly, the Court finds Torrington's arguments regarding the authority of the Court to fashion a remand order unpersuasive....