Timken Co. v. U.S., SLIP OP. 01-96.

• Decision Date: 09 August 2001
• Docket Number: SLIP OP. 01-96.,No. 97-12-02156.,97-12-02156.
• Citation: 166 F.Supp.2d 608
• Parties: The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, Peer Bearing Company, L & S Bearing Company, Defendant-Intervenors.
• Court: U.S. Court of International Trade

166 F.Supp.2d 608

The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, Peer Bearing Company, L & S Bearing Company, Defendant-Intervenors.

SLIP OP. 01-96.

No. 97-12-02156.

United States Court of International Trade.

August 9, 2001.

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Stewart and Stewart, Washington, DC (Terence P. Stewart, James R. Cannon, Jr. and Amy S. Dwyer), for plaintiff.

Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michele D. Lynch); Rina Goldenberg, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for defendant.

Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, DC (John M. Gurley and Jinhee K. Wilde) for Peer Bearing Company, defendant-intervenor.

Cohen Darnell & Cohen, P.L.L.C. (Mark A. Cohen), for L & S Bearing Company, defendant-intervenor.

OPINION

TSOUCALAS, Senior Judge.

Plaintiff, The Timken Company ("Timken"), moves 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 Administrative Review of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China, 62 Fed.Reg. 61,276 (Nov. 17, 1997).

Timken claims that Commerce erred in: (1) selecting Indonesian, rather than Indian, import statistics for valuing the steel inputs and scrap for hot-rolled alloy steel bars used by Chinese producers to manufacture cups and cones, cold-rolled steel rods used in the production of rollers, cold-rolled sheet used in the production of cages and steel scrap; (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) assuming that Indian direct labor costs data is equivalent to indirect labor costs data for the calculation of direct labor factor of production ("FOP"); (4) refusing to use certain Chinese suppliers' sales as export price sales; (5) failing to adjust United States price for marine insurance costs based on value rather than weight; and (6) committing a clerical error in the calculation of the weight of the scrap from one of the Chinese producers.

BACKGROUND

The administrative review at issue concerns steel inputs and scrap for hot-rolled alloy steel bars used by Chinese producers to manufacture cups and cones, cold-rolled steel rods used in the production of rollers, cold-rolled sheet used in the production of cages and steel scrap imported from the People's Republic of China ("PRC") during the period of review covering June 1, 1995 through May 31, 1996.¹ Commerce published the preliminary results of the subject review on July 9, 1997. See Preliminary Results of Antidumping Administrative Review and Partial Termination of Administrative Review of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China ("Preliminary Results"), 62 Fed.Reg. 36,764. On November 17, 1997, Commerce published the Final Results at issue. See 62 Fed. Reg. 61,276.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994).

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 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). "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's 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 ___, ___ 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 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).

III. Mead-Christensen-Skidmore Test

"[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., ___ U.S. ___, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001). "Delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent." Id. If the

agency's generally conferred authority and other statutory circumstances [imply] that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which "Congress did not actually have an intent" as to a particular result[,] ... a reviewing court has no business rejecting an agency's exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency's chosen resolution seems unwise....

Id. at 2172 (citing Chevron, 467 U.S. at 845-46, 104 S.Ct. 2778).

"It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force." Id. (citations omitted). The want of notice-and-comment rulemaking or formal adjudication, however, "does not alone ... bar the application of Chevron." Id. at 2173. Courts "have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded."² Id. (citations omitted).

Absent congressional intent to delegate general authority to make rules with the...