Peer Bearing Co. v. U.S., SLIP OP. 01-125.
| Decision Date | 25 October 2001 |
| Docket Number | No. 97-03-00419.,SLIP OP. 01-125.,97-03-00419. |
| Citation | 182 F.Supp.2d 1285 |
| Parties | PEER BEARING COMPANY, Plaintiff and Defendant-Intervenor, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor and Plaintiff, and L & S Bearing Company; Shanghai General Bearing Co., Ltd. Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, DC (John M. Gurley, Peter L. Sultan, Jinhee K. Wilde and Matthew J. McConkey) for Peer Bearing Company, plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Henry R. Felix); of counsel: Rina Goldenberg, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for defendant.
Stewart and Stewart, Washington, DC (Terence P. Stewart, James R. Cannon, Jr., Amy S. Dwyer and Charles A. St. Charles) for The Timken Company, plaintiff and defendant-intervenor.
Cohen Darnell & Cohen, P.L.L.C. (Mark A. Cohen) for L & S Bearing Company, defendant-intervenor.1
Reed Smith Shaw & McClay, Washington, DC (James K. Kearney) for Shanghai General Bearing Co., Ltd., defendant-intervenor.
This consolidated action concerns the claims raised by Peer Bearing Company ("Peer Bearing"), a plaintiff, and The Timken Company ("Timken"), a plaintiff and a defendant-intervenor. Peer Bearing and Timken move pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record challenging the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Final Results of Antidumping Duty Administrative Review and Revocation in Part of Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China, 62 Fed.Reg. 6189 (Feb. 11, 1997).
Peer Bearing asserts that Commerce erred in: (1) selecting an allegedly punitive dumping margin for certain transactions of Peer Bearing on the basis of best information available ("BIA") to Commerce; (2) failing to issue a separate rate determination for East Sea Bearing Company Ltd. ("East Sea Bearing"); and (3) committing a clerical error in applying BIA to certain models for which factors of production ("FOPs") were available.
Timken claims that Commerce erred in: (1) selecting Indonesian, rather than Indian, import statistics for valuing bearing-quality steel used to manufacture tapered roller bearings ("TRBs") cups and cones; (2) failing to adjust overhead, selling, general and administrative expenses ("SG & A") and profit rates to account for differences in material and labor values of other surrogate sources used in determining foreign market value ("FMV"); (3) failing to use Indian material and labor costs data in the calculation of overhead, SG & A and profit rates; (4) adjusting FMV by the exporter's sales price ("ESP"); (5) failing to adjust United States price for marine insurance costs based on value rather than weight; and (6) revoking the antidumping duty order with respect to Shanghai General Bearing Co., Ltd. ("Shanghai General"), a defendant-intervenor in this action.
The administrative review at issue covers the period of review from June 1, 1993, through May 31, 1994.2 Commerce published the preliminary results of the subject review on September 26, 1995. See Preliminary Results of Antidumping Administrative Review of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China ("Preliminary Results"), 60 Fed. Reg. 49,572. On Feb. 11, 1997, Commerce published the Final Results at issue. See 62 Fed.Reg. 6189.
The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994).
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).
Substantial evidence is 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 487-88, 71 S.Ct. 456)).
To determine whether Commerce's interpretation and application of the antidumping statute is "in accordance with law," the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. ("Chevron"), 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). 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 ___, ___ n. 6, 41 F.Supp.2d 319, 323 n. 6 (1999) () (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) (); 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 Dep't of Commerce, 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 ___, ___, 15 F.Supp.2d 807, 813 (1998).
During the period of review, Peer Bearing, through Chin Jun Industrial Ltd. ("Chin Jun"), a reseller of TRBs and an affiliate of Peer Bearing, made purchases of the merchandise at issue from various exporters from the People's Republic of China ("PRC"). See Pl.'s Mem. P. & A. Supp. Pl.'s Rule 56.2 Mot. J. Agency R. ("Peer Bearing's Mem.") at 2. Peer Bearing in turn, resold the merchandise in the United States and in third-country markets. See id.
Because the PRC is a nonmarket economy, Commerce, acting under the mandate of 19 U.S.C. § 1677b(c) (1988), calculated FMV on the basis of FOPs data. See id. at 3. Commerce sought and obtained FOPs data for some but not all of the exporters utilized by Chin Jun. See id. Consequently, Commerce applied BIA to the United States sales of the merchandise on which FOPs data was unavailable. See id. BIA was based on the higher of: (1) the highest of the rates found for Peer Bearing in the less than fair value ("LTFV") investigations in the prior reviews; or (2) the highest margin calculated for any respondent in the review at issue. See Final Results, 62 Fed.Reg. at 6214. Applying this methodology, Commerce determined the dumping margin for the merchandise on which FOPs data was unavailable, the rate equal to the rate determined for another respondent in the review. See id.
Peer Bearing contends...
To continue reading
Request your trial
-
Luoyang Bearing Factory v. U.S., Slip Op. 02-118.
...purpose of the statutory scheme of determining antidumping margins as accurately as possible.17 See Peer Bearing Co. v. United States, 25 CIT ___, ___, 182 F.Supp.2d 1285, 1305 (2001) (pointing out that "`[i]n the absence of a statutory mandate to the contrary, Commerce's actions must be up......
-
Ntn Corp. v. U.S.
...as long as such change is reasonable. See NTN 2003, 27 CIT ___, ___, 248 F.Supp.2d at 1267-69; Peer Bearing Co. v. United States, 25 CIT ___, ___, 182 F.Supp.2d 1285, 1300-01 (2001); Timken Co. v. United States, 25 CIT ___, ___, 166 F.Supp.2d 608, 620-21 (2001). In the case at bar, Commerce......
-
Nsk Ltd. v. U.S.
...that Commerce's decision to apply its SUMDEV methodology is reasonable and in accordance with law. See Peer Bearing Co. v. United States, 25 CIT ___, ___, 182 F.Supp.2d 1285, 1305 (2001) (pointing out that "[i]n the absence of a statutory mandate to the contrary, Commerce's actions must be ......
-
Timken Co. v. U.S.
...suppliers is reasonable, is in accordance with § 1677b(c)(1) and is supported by substantial evidence. See Peer Bearing 2001, 25 CIT at ___, 182 F.Supp.2d at 1305 ("`[i]n the absence of a statutory mandate to the contrary, Commerce's actions must be upheld as long as they are reasonable'") ......