RHP Bearings v. US

• Decision Date: 31 January 1995
• Docket Number: Court No. 92-07-00503.,Slip Op. 95-12
• Citation: 875 F. Supp. 854
• Parties: RHP BEARINGS, et al., Plaintiffs, v. UNITED STATES, Defendant, The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

875 F. Supp. 854

RHP BEARINGS, et al., Plaintiffs, v. UNITED STATES, Defendant The Torrington Company; Federal-Mogul Corporation, Defendant-Intervenors.

Slip Op. 95-12, Court No. 92-07-00503.

United States Court of International Trade.

January 31, 1995.

Covington & Burling, Harvey M. Applebaum, David R. Grace, Thomas A. Robertson, Michael P. Socarras and Mark F. Kightlinger, Washington, DC, for plaintiffs, RHP Bearings, et al.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Marc E. Montalbine, of counsel; Dean A. Pinkert, Stacy J. Ettinger and Stephen J. Claeys, Attys., Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, Wesley K. Caine, Robert A. Weaver and James R. Cannon, Jr., Washington, DC, for defendant-intervenor, The Torrington Co.

Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley and Joseph A. Perna, V, Washington, DC, for defendant-intervenor, Federal-Mogul Corp.

OPINION

TSOUCALAS, Judge:

The plaintiffs in this case are RHP Bearings, RHP Bearings Inc. and United Precision Industries, Ltd. (collectively "RHP"). RHP raises two challenges to the final determination of the United States Department of Commerce, International Trade Administration ("Commerce"), in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al.; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 57 Fed.Reg. 28,360 (1992).

This action is before the Court on RHP's motion for judgment upon the agency record pursuant to Rule 56.2 of the Rules of this Court.

Background

On May 15, 1989, Commerce published notice of the antidumping duty order which underlies this action. Antidumping Duty Orders and Amendments to the Final Determinations of Sales at Less Than Fair Value: Ball Bearings, and Cylindrical Roller Bearings and Parts Thereof From the United Kingdom, 54 Fed.Reg. 20,910 (1989).

On June 28, 1991, Commerce initiated an administrative review of this order with respect to various manufacturers and exporters for the period May 1, 1990 through April 30, 1991. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; Initiation of Antidumping Administrative Reviews ("Initiation"), 56 Fed.Reg. 29,618 (1991).

On March 31, 1992, Commerce published notice of the preliminary determination in this second administrative review. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the United Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews ("Preliminary Results"), 57 Fed.Reg. 10,878 (1992).

On June 24, 1992, Commerce published notice of the consolidated final determination in this review. Final Results, 57 Fed.Reg. at 28,360. Amendments to the Final Results were published in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; Amendment to Final Results of Antidumping Duty Administrative Reviews, 57 Fed.Reg. 32,969 (1992) and Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Sweden, and the United Kingdom; Amendment to Final Results of Antidumping Duty Administrative Reviews, 57 Fed. Reg. 59,080 (1992).

Against this background, RHP now moves pursuant to Rule 56.2 of the Rules of this Court for judgment upon the agency record alleging that Commerce (1) erred in refusing to correct a clerical error pertaining to the description of model RJ244; and (2) erroneously treated RHP's technical service expenses in the U.S. market as direct expenses. Memorandum in Support of Plaintiffs' Motion for Judgment Upon the Agency Record ("Plaintiffs' Brief") at 1-12.

Discussion

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

This 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) (1988). 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, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 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).

1. Clerical Data Input Error

RHP informed Commerce, after publication of the Preliminary Results, that it had inadvertently misreported that model "RJ244" contained twenty rolling elements. RHP explained that information already existing on the record on RHP's computer tape accurately showed that model RJ244 contained no rolling elements. Plaintiffs' Brief at 6.

RHP challenges Commerce's refusal to correct this alleged error arguing that the misdescription of RJ244 materially affected the accuracy of the Final Results. Id. at 5. Specifically, RHP contends that the error resulted in the calculation of an inflated constructed value used as the basis of foreign market value ("FMV"). Final Results, 57 Fed.Reg. at 28,426. RHP insists that this error be corrected in the interest of fairness and accuracy. Plaintiffs' Brief at 5-7.

Commerce, however, maintains that it acted within its discretion in rejecting RHP's new information. Defendant's Memorandum in Opposition to Plaintiffs' Motion for Judgment Upon the Agency Record ("Defendant's Brief") at 7-10.

Regarding RHP's requested correction, Commerce's Final Results stated:

There is conflicting information on the record and we cannot conclude that the initial response contains an obvious error.... Therefore, we have not made this correction. This information is also untimely, having been submitted after verifications were completed and publication of our preliminary results, and was not requested by the Department....

We cannot determine from the information that was already on the record that the newly submitted data are accurate or that the originally submitted data were not accurate.

Final Results, 57 Fed.Reg. at 28,426. Before the Court, Commerce argues that information which RHP submitted to demonstrate the alleged error is ineffectual as the new information does not specifically indicate that model RJ244 has zero rolling elements. Defendant's Brief at 9. Furthermore, Commerce asserts that RHP had adequate time within which to check the accuracy of its July 26, 1991 submission prior to the March 31, 1992 publication of the Preliminary Results. Id. at 8.

In rebuttal, RHP states, "The Government does not try to explain how the RJ244 could be an inner ring (i.e., an item that does not contain rolling elements), have `zero' rows of rolling elements, and yet still contain such rolling elements." Reply Brief in Support of Plaintiffs' Motion for Judgment Upon the Agency Record at 3. RHP also points out to the Court that, in the 1988-90 administrative review, Commerce accepted that model RJ244 contained zero rolling elements. Id.

Commerce is not required to correct a respondent's errors when the respondent has reported erroneous data and has failed to timely correct it. NSK Ltd. v. United States, 17 CIT ___, ___, 825 F.Supp. 315, 318 (1993). See NSK Ltd. v. United States, 16 CIT 745, 749, 798 F.Supp. 721, 725 (1992), aff'd, 996 F.2d 1236 (Fed.Cir. 1993). See also Sugiyama Chain Co. v. United States, 16 CIT 526, 533, 797 F.Supp. 989, 995 (1992). A respondent in an antidumping proceeding bears the burden of preparing and providing Commerce with an accurate submission within the prescribed statutory deadline. See NSK Ltd., 17 CIT at ___, 825 F.Supp. at 319; see also Chinsung Indus. Co. v. United States, 13 CIT 103, 106, 705 F.Supp. 598, 601 (1989).

In this case, RHP had ample time, prior to issuance of the Preliminary Results, to ascertain whether the data it had previously submitted concerning RJ244 was accurate. It failed to do so and attempted to provide Commerce with new factual information¹ by correspondence dated April 14, 1992. This communication occurred after publication of the Preliminary Results and over 180 days after publication of the notice of initiation of this administrative review. Compare United Kingdom AR (Pub.) Doc. 243 at 106 with Initiation, 56 Fed.Reg. at 29,618, and Preliminary Results, 57 Fed.Reg. at 10,878. Therefore, RHP's unsolicited information was untimely. 19 C.F.R. § 353.31(a). This court has stated that it is "imperative the requested information be submitted within a period that allows Commerce sufficient time for adequate analysis and comment while still meeting statutory deadlines." Ansaldo Componenti, S.p.A. v. United States, 10 CIT 28, 37, 628 F.Supp. 198, 205 (1986).

This court has previously upheld Commerce's rejection of factual information which is untimely submitted. See, e.g., Mantex, Inc. v. United States, 17 CIT ___, ___, 841 F.Supp. 1290, 1310 (1993); Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 13, 25, 704 F.Supp. 1114, 1124 (1989), aff'd, 901 F.2d 1089, cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990); Seattle Marine Fishing Supply Co. v. United States, 12 CIT 60, 71, 679 F.Supp. 1119, 1128 (1988). However, where corrected information has been untimely filed and rejected by Commerce, the...