Ntn Bearing Corp. of America v. U.S.

• Decision Date: 24 January 2003
• Docket Number: Court No. 98-12-03232.,SLIP OP. 03-08.
• Citation: 248 F.Supp.2d 1256
• Parties: NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Manufacturing Corporation, NTN Bower, Inc. and NTN Corporation, Plaintiffs, v. UNITED STATES, Defendant, and THE Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

248 F.Supp.2d 1256

NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Manufacturing Corporation, NTN Bower, Inc. and NTN Corporation, Plaintiffs, v. UNITED STATES, Defendant, and THE Timken Company, Defendant-Intervenor.

SLIP OP. 03-08.

Court No. 98-12-03232.

United States Court of International Trade.

January 24, 2003.

COPYRIGHT MATERIAL OMITTED

Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Kristen S. Smith) for NTN, plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michele D. Lynch, Kenneth J. Guido and Richard P. Schroeder); John F. Koeppen, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, defendant, of counsel.

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

BEFORE: Senior Judge NICHOLAS TSOUCALAS.

OPINION

TSOUCALAS, Senior Judge.

Plaintiffs, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower, Inc. and NTN Corporation (collectively "NTN"), move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Final Results of Antidumping Duty Administrative Reviews 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. 63,860 (Nov. 17, 1998).

Specifically, NTN contends that Commerce erred in: (1) adjusting NTN's reported home market billing adjustment; (2) denying an adjustment to United States indirect selling expenses for interest allegedly incurred in financing cash deposits for antidumping duties; (3) calculating constructed export price profit without regard to levels of trade; (4) including profits from export price sales in the calculation of constructed export price profit; (5) using the affiliated supplier's cost of production for inputs in those cases when the cost was higher than the transfer price in Commerce's calculation of cost of production and constructed value; (6) recalculating home market and United States indirect selling expenses without regard to level of trade; (7) denying a price-based level of trade adjustment for constructed export price sales; (8) applying a 99.5% test to determine whether sales to NTN's affiliated parties were made at arm's length; (9) including sample transactions that were allegedly made for no consideration; (10) including certain NTN sales allegedly outside the ordinary course of trade in Commerce's margin calculations and in Commerce's constructed value profit calculations; (11) relying upon the sum-of-deviations methodology for Commerce's model match analysis; (12) using its level of trade sales match program; and (13) using an incorrect level of trade adjustment factor for certain export price sales.

BACKGROUND

The administrative determination at issue concerns the antidumping duty order on tapered roller bearings ("TRBs") and parts thereof, finished and unfinished, from Japan (A-588-604), for the period of review ("POR") covering October 1, 1996, through September 30, 1997.¹ See Final Results, 63 Fed.Reg. at 63,860-61. On July 10, 1998, Commerce published the preliminary results. See Preliminary Results of Antidumping Duty Administrative Reviews 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"), 63 Fed. Reg. 37,344. Commerce published the Final Results on November 17,1998. See 63 Fed.Reg. 63,860.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (2000) and 28 U.S.C. § 1581(c) (2000).

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 twostep analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 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' 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 20, 22 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 objectives of the antidumping scheme as a whole. See Mitsubishi Heavy Indus, v. United States, 22 CIT 541, 545,15 F.Supp.2d 807, 813 (1998).

DISCUSSION

I. Commerce's Adjustment to NTN's Reported Home Market Billing Adjustment

A. Background

During the POR, NTN provided Commerce with "its [home market] sales data via computer tape." Mem. Opp'n Pls.' Mot. J. Agency R. ("Def.'s Mem.") at 9-10. Commerce used the home market sales data from the computer tape and calculated both a positive and negative home market billing adjustment for NTN. See id. at 10 (citing App. NTN's Mot. and Mem. Supp. J. Agency R. ("NTN's App. Mem.") Attach. 3 at 2-3 n. 1) (proprietary version). NTN also provided Commerce with "its [home market] sales volume and value reconciliation worksheet" which contained a total positive home market billing adjustment. Def.'s Mem. at 10 (citing App. Def.'s Mem. Opp'n Pls.' Mot. J. Agency R. ("Def.'s App. Mem.") Ex. 1 (proprietary version); NTN's App. Mem. Attach. 2 at A2-a (proprietary version)). In the Final Results, Commerce stated:

[Commerce] agrees with [Timken]. In [Final Results of Antidumping Duty Administrative Reviews 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] ("95/96 TRB Final"), [63 Fed.Reg. 2558, 2563 (Jan. 15, 1998)], Timken argued that because there were certain inconsistencies between NTN's computer tape home market billing adjustment total and the billing adjustment figure reported in...