Peer Bearing Co. v. U.S., Slip Op. 99-66.

• Decision Date: 21 July 1999
• Docket Number: Slip Op. 99-66.,Court No. 97-12-02123.
• Citation: 57 F.Supp.2d 1200
• Parties: PEER BEARING COMPANY, Plaintiff, L & S Bearing Company, Plaintiff-Intervenor, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

57 F.Supp.2d 1200

PEER BEARING COMPANY, Plaintiff, L & S Bearing Company, Plaintiff-Intervenor, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.

Slip Op. 99-66.

Court No. 97-12-02123.

United States Court of International Trade.

July 21, 1999.

John M. Gurley, Matthew J. McConkey, Jinhee K. Wilde, Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, DC, for plaintiff.

David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice Michele D. Lynch; of counsel: Rina Goldenberg, Attorney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.

Terence P. Stewart, James R. Cannon, Jr. and Amy S. Dwyer, Stewart and Stewart, for defendant-intervenor.

Mark A. Cohen, Cohen Darnell & Cohen, PLLC, for plaintiff-intervenor.

OPINION

TSOUCALAS, Senior Judge.

This case involves the shipments of tapered roller bearings ("TRBs") and parts thereof, finished and unfinished, from the People's Republic of China ("PRC").

On July 9, 1997, the Department of Commerce, International Trade Administration ("Commerce"), published the preliminary results of its administrative review covering TRBs from the PRC. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Preliminary Results of Antidumping Administrative Review and Partial Termination of Administrative Review ("Preliminary Results"), 62 Fed.Reg. 36,764.

Plaintiff¹ Peer Bearing Company ("Peer") moves pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record challenging Commerce's final determination, entitled Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of Antidumping Administrative Review, ("Final Results") 62 Fed.Reg. 61,276 (Nov. 17, 1997). Specifically, Peer alleges that Commerce made certain clerical errors in its calculation and selection of labor rates and factors of production data in the Final Results.²

Oral argument was held at the Court on February 26, 1999.

Discussion

This Court has jurisdiction in this case pursuant to 19 U.S.C. § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).

The Court must uphold Commerce's final 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). 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)). "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).

Ministerial Errors

1. Labor Rates

Because this case deals with bearings imported from the PRC, a nonmarket economy, and because no other usable data was available, Commerce calculated normal value ("NV") based on factors of production ("FOP") pursuant to 19 U.S.C. § 1677b(c) (1994).

Peer challenges the labor rates used to calculate FOP for one of its Chinese suppliers. In the Final Results, in calculating FOP for NV, Commerce accidentally used an unskilled labor rate of 46.6 Rupees per hour and a skilled labor rate of 25.42 Rupees per hour instead of the reverse.

Commerce agrees that its inadvertent reversal of the skilled and unskilled labor rates in its calculations constitutes a ministerial error and requests a remand to correct it. Commerce's Mem. Opp'n to Mot. J. Agency R. at 2, 6. Timken does not object to a remand. Timken's Mem. Opp'n to Mot. J. Agency R. at 6.

The Court has often remanded in cases such as these to correct ministerial errors of this type. See Federal-Mogul Corp. v. United States, 18 CIT 1168, 1172, 872 F.Supp. 1011, 1014 (1994). Consequently, the Court grants Commerce's request for a remand to correct the inadvertent reversal of the labor rates in its FOP calculations and to adjust the dumping margins accordingly.

2. Factors of Production Data for Bearing Part

On May 13, 1997, Commerce sent a questionnaire to Peer and Chin Jun Industrial Ltd. ("Chin Jun"), an affiliate of Peer's, requesting FOP data from all suppliers for the bearings under review. Peer's response, received on June 4, 1997, provided the following information:

Peer/Chin Jun has attempted to obtain factors of production FOP data for all of its suppliers. However, Peer/Chin Jun does not control the Chinese suppliers and must not be held responsible for their failure to supply FOP data. However, many of Peer's suppliers have supplied similar information as respondents in this review. To the extent factors data is available from these respondents, then it should be used. We are incorporating by reference the factor information supplied by various respondents. A listing of model and the corresponding supplier is listed in Exhibit 1 .... [A]lso enclosed at Exhibit 1 is a list of models produced by other factories which can be used as FOP for Chin Jun/Peer models for which FOP data is not available.

See Response of Peer to Commerce's Supplemental Questionnaire, Pub. Doc. No. 205, Def.'s App., Ex. 4.

Attached to Peer's submission was a letter from counsel for other respondents who also used Peer/Chin Jun's suppliers. Peer authorized Commerce to use the co-operating respondents' FOP information to calculate the production costs for Peer/Chin Jun during the relevant POR. Both parties used data from an agreed upon factory supplier³ as an analog for Peer's product model. See Peer's Comments Regarding Commerce's Final Calculations, at 2 (Public Version), Peer's Mem. Supp. Mot. J. Agency R., Attachment 1 (Nov. 25, 1997).

Peer submitted a chart to Commerce to identify which model numbers already on file with Commerce correspond to Peer's models for purposes of determining FOP. Peer noted that FOP data for models LM67010 and LM 67048 could be found in the set LM67048/10. Peer's listing also noted that the set contained FOP information for both the cup and the cone.⁴ Commerce used the factors for the set to determine the FOP data of part LM67048. See id.

Peer argues that to determine the FOP for LM67048, Commerce needed only to deduct the factors of LM67010 from the total factors for the set LM67048/10. Commerce did not perform this additional calculation, but instead used the FOP of the set as the FOP for Peer's single bearing part LM67048. See id.

Only after the publication of the Final Results, in a letter dated November 25, 1997, did Peer inform Commerce for the first time that Commerce erroneously used the FOP for the set LM67048/10 instead of the FOP for the individual parts LM67048 and LM67010. See id. Commerce refused to consider this information after the publication of the Final Results.

Peer now argues that its simple instruction on its submission to Commerce indicating that a set contains FOP data for both a cup and cone clearly indicated that Commerce had to subtract the FOP of part LM 67010 from the set of LM67048/10 to obtain the FOP for part LM67048. Essentially, Peer argues that Commerce misunderstood its instruction and misapplied the substitute FOP data in determining NV.

Commerce responds that it used the information as submitted by Peer in its chart of corresponding model matches and that its deliberate use of this information is not a clerical error. Commerce further contends that it used the same information in the Preliminary Results and in the Final-Results and that Peer is barred at this time from raising this issue because Peer failed to exhaust its administrative remedies as required by 28 U.S.C. § 2637. See Commerce's Mem. Opp'n to Mot. J. Agency R. at 7-14.

As a preliminary matter, the Court is not convinced that Commerce committed any error at all. At oral argument, Commerce asserted that it will often use data for bearing sets to determine the FOP for a bearing part in lieu of better information. If Peer did not approve of Commerce's use of the data it submitted, Peer should have raised the issue to Commerce during the administrative proceedings. Commerce could have then determined not to use the information submitted by Peer at all, and to resort to best information available. The Court cannot simply bypass this process and remand for Commerce to use a particular value for FOP when Commerce was not given the opportunity to expound and justify its reasoning for using the FOP of an entire set in its calculations.

Further, a "ministerial error" includes clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial. 19 U.S.C. § 1675(h)(1994); 19 C.F.R. § 351.224(f) (1998). Peer presents substantive arguments for an alternative method of interpreting the data it submitted. The Court's consideration of Peer's arguments at this late juncture is outside the scope of permissible corrections of ministerial errors. See Kerr-McGee Chem. Corp. v. United States, 21 CIT ___, ___, 955 F.Supp. 1466, 1475 (1997) (holding that plaintiff's submissions after the final determination contesting selection of surrogate values do not identify clerical or ministerial errors, but rather contain new information and therefore cannot be included in the record or considered by the Court).

Moreover, the allegation of faulty judgment inherently falls outside the purview of a ministerial error. See NTN Bearing Corp. v. United States, 74 F.3d 1204, 1208 (Fed.Cir.1995)("Clerical errors are by their nature not errors in judgment but merely inadvertencies."); see...