Nsk Ltd. v. United States

416 F.Supp.2d 1334

NSK LTD., et al. Plaintiffs, v. UNITED STATES, Defendant, and Timken U.S. Corporation, Defendant-Intervenor.

Slip Op. 06-19. Court No. 04-00519.

United States Court of International Trade.

January 31, 2006.

Crowell & Moring, LLP, (Matthew Philip Jaffe, Robert A. Lipstein, Alexander H. Schaefer and Sobia Hague), Washington, DC, for Plaintiffs NSK Ltd., NSK Corp., and NSK Precision America, Inc.

Barnes, Richardson & Colburn, (Donald J. Unger, Kazumune V. Kano, Diane A. MacDonald, Louisa Vassileva Carney and Nikolay A. Ouzounov), Chicago, IL, for Plaintiffs NTN Corp., NTN Bearing Corp. of America, American NTN Bearing Man

ufacturing Corp., NTN-Driveshaft, Inc., and NTN-BCA Corp.

Sidley Austin Brown & Wood LLP, (Neil R. Ellis and Neil C. Pratt), Washington, DC, for Plaintiffs Koyo Seiko Co., Ltd., and Koyo Corp. of U.S.A.

Stewart and Stewart, (Terence P. Stewart, William A. Fennell, Lane S. Hurewitz, and Geert De Prest), Washington, DC, for Defendant-Intervenor Timken U.S. Corp.

Stuart E. Schiffer, Deputy Assistant Attorney General; David M. Cohen, Director; Patricia M. McCarthy, Assistant Director; Michael D. Panzera, Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; and Philip Curtin, Elizabeth Doyle, William J. Kovach, Jr., and Carrie Owens, Attorney-Advisors, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant United States.

OPINION

WALLACH, Judge:

I

Introduction

Plaintiffs NSK Ltd., NSK Corp., and NSK Precision America, Inc. (collectively, "NSK"); NTN Corp., NTN Bearing Corp. of America, American NTN Bearing Manufacturing Corp., NTN Driveshaft, Inc., and NTN—BCA Corp. (collectively, "NTN"); Koyo Seiko Co. Ltd., and Koyo Seiko Corp. of U.S.A.; and Timken U.S. Corp. ("Timken") challenge the United States Department of Commerce's ("Commerce" or "the Department") findings in Antifriction Bearings and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Rescission of Administrative Reviews in Part, and Determination To Revoke Order in Part, 69 Fed.Reg. 55,574 (September 15, 2004) ("Final Results"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2004).

II

Background

On September 15, 2004, Commerce published in the Federal Register the Final Results of its review of the antidumping duty orders on antifriction bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom covering the period of review ("POR") of May 1, 2002, through April 30, 2003. Final Results at 55,574. The scope of this order covers antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof.¹ Id. at 55,575. In the Final Results, Commerce found a 5.56% weighted-average dumping margin for Koyo, 2.74% for NTN, and 2.46% for NSK. See id. at 55,580.

On March 4, 2005, the Court consolidated all the cases challenging the Final Results of the thirteenth administrative review.² On August 23, 2005, this Court denied Plaintiff Koyo's Motion to Stay Count One of the Complaint concerning the zeroing issue pending appeals of NSK Ltd. v. United States, 358 F.Supp.2d 1276 (CIT 2005); NSK Ltd. v. United States, 346 F.Supp.2d 1312 (CIT 2004); and SNR Roulements v. United States, 341 F.Supp.2d 1334 (CIT 2004); pending the resolution of certain dispute settlement proceedings at the World Trade Organization ("WTO"); as well as pending the determinations by the, United States Trade Representative ("USTR") and Commerce on whether to implement changes to the U.S. antidumping law if there is an adverse WTO decision. U.S.—Measures Relating to Zeroing and Sunset Reviews, WT/DS322/8 (February 7, 2005). The request to stay consideration of this issue pending the aforementioned appeals was denied because WTO adjudicatory decisions, while possibly persuasive, are not binding on this Court or Commerce; thus, staying consideration of Commerce's zeroing practice pending resolution of WTO proceedings was not warranted. See Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-826, at 1032 (1994), reprinted in 1994 U.S.C.C.A.N. 4040; Timken v. United States, 354 F.3d 1334, 1344 (Fed.Cir.2004); Cores Staal B.V. v. Department of Commerce, 395 F.3d 1343, 1348 (Fed.Cir.2005).

Oral argument was held on November 17, 2005.

III

Standard of Review

This court will sustain Commerce's determinations, findings, or conclusions 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) (2004); Magnesium Corp. of Am. v. United States, 166 F.3d 1364, 1368 (Fed.Cir.1999). Substantial evidence is "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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Although the courts have considered substantial evidence to be something less than the weight of the evidence, the possibility of drawing two inconsistent conclusions from the presented evidence does not necessarily prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citing National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 86 L.Ed. 1305 (1942); Keele Hair & Scalp Specialists Inc. v. FTC, 275 F.2d 18, 21 (5th Cir.1960)).

The court must use a two-step analysis when evaluating Commerce's statutory interpretation. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court examines, first, whether "Congress has directly spoken to the precise question at issue," in which case courts, "must give effect to the unambiguously expressed intent of Congress." See Household Credit Servs. v. Pfennig, 541 U.S. 232, 239, 124 S.Ct. 1741, 158 L.Ed.2d 450 (2004); Id. at 842-3, 104 S.Ct. 2778. Whenever Congress has "explicitly left a gap for the agency to fill," the agency's regulation is "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. `To sustain the [agency's] application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.'" Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) (quoting Unemployment Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946)).

IV

ANALYSIS

A Commerce's Practice of Zeroing Is Supported by Substantial Evidence and Is In Accordance With Law

Each Plaintiff argues in turn that Commerce's practice of assigning a zero margin to export price ("EP") or constructed export price ("CEP") sales made above normal value ("NV") is a violation of either U.S. antidumping law or a WTO dispute settlement decision. Memorandum of Points and Authorities in Support of NSK's Motion For Judgment On The Agency Record ("NSK's Brief') at 2; Memorandum of Points and Authorities in Support of Motion of Plaintiffs Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. for Judgment on the Agency Record ("Koyo's Brief') at 13; Rule 562 Motion and Memorandum for Judgment on the Agency Record Submitted on Behalf of Plaintiffs NTN, et al. ("NTN's Brief') at 2; 19 U.S.C. § 1673. Plaintiffs further argue that the court should reconsider its earlier decisions regarding zeroing because this case is distinguishable from the U.S. zeroing case before the WTO. See U.S.— Measures Relating to Zeroing and Sunset Reviews, DS322 (Request for Consultations filed by Japan on November 24, 2005); see also NTN's Brief at 5-6, 12-14.

The issue of zeroing has been affirmed and settled by the Federal Circuit in Corus Staal, 395 F.3d at 1348-49. There is thus no reason to overturn Commerce's zeroing practice based upon a ruling by the WTO "unless and until such ruling has been adopted pursuant to the specified statutory scheme." Id. No such ruling has been adopted in this case; consequently, there is no reason to re-examine the issue of zeroing at this juncture. Commerce's interpretation need only be a reasonable interpretation of the statute and that Commerce's interpretation has been upheld several times based on that standard. See id. at 1347; Timken 354 F.3d at 1342.

Simply because Plaintiffs wish to challenge a particular holding does not make it irrelevant or not controlling. As Defendant-Intervenor aptly states "`to embrace the novel precept that a precedent is not controlling—no matter how clear it is—if counsel in a subsequent proceeding can advance a new argument on the point" would enable Plaintiffs to avoid precedent absent proof of changed circumstances. Response of Timken U.S. Corporation to the Rule 56.2 Motions of Koyo Seiko Co., Ltd., et al., NSK Ltd., et al., and NTN Corporation, et al. ("Timken's Response") at 6-7 (citing Matter of Penn Central Transp. Co., 553 F.2d 12, 15 (3d Cir. 1977)). In this case, none of the Plaintiffs offer a valid reason why the Court should disregard stare decisis and Commerce's interpretation concerning its zeroing methodology in administrative reviews. Commerce's practice continues to be a reasonable interpretation of the statute, it is supported by substantial evidence and is in accordance with law.

B NSK's Challenge of Commerce's Model Matching Methodology is...