Ntn Bearing Corp. of America v. U.S.
| Decision Date | 22 June 2001 |
| Docket Number | Court No. 97-10-01800.,SLIP OP. 01-76. |
| Citation | 155 F.Supp.2d 715 |
| Parties | NTN BEARING CORPORATION OF AMERICA and NTN Kugellagerfabrik (Deutschland) GmbH; SKF USA Inc. and SKF GmbH; FAG Kugelfischer Georg Schafer AG and FAG Bearings Corporation, Plaintiffs and Defendant-Intervenors, and INA Walzlager Schaeffler oHG and INA Bearing Company, Inc., Plaintiffs, v. UNITED STATES, Defendant, and The Torrington Company, Defendant-Intervenor and Plaintiff. |
| Court | U.S. Court of International Trade |
Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano and Christine H.T. Yang), for NTN.
Steptoe & Johnson LLP, Washington, FC (Herbert C. Shelley and Alice A. Kipel), for SKF.
Grunfeld, Desiderio, Lebowitz & Silverman LLP, New York, NY (Max F. Schutzman, Andrew B. Schroth and Mark E. Pardo), for FAG.
Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, DC (Stephen L. Gibson), for INA.
Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis, Assistant Director); Mark A. Barnett, Patrick V. Gallagher, Rina Goldenberg and David R. Mason, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC for defendant.
Stewart and Stewart, Washington, DC (Terence P. Stewart, Wesley K. Caine, Geert De Prest and Lane S. Hurewitz), for Torrington.
Plaintiffs and defendant-intervenors NTN Bearing Corporation of America, NTN Kugellagerfabrik (Deutschland) GmbH (collectively "NTN"), SKF USA Inc., SKF GmbH (collectively "SKF"), FAG Kugelfischer Georg Schafer AG, FAG Bearings Corporation (collectively "FAG"), and plaintiffs INA Walzlager Schaeffler oHG and INA Bearing Company, Inc. (collectively "INA") move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 62 Fed.Reg. 54,043 (Oct. 17, 1997), as amended, Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore[,] Sweden and the United Kingdom; Amended Final Results of Antidumping Duty Administrative Reviews, 62 Fed.Reg. 61,963 (Nov. 20, 1997). Defendant-intervenor and plaintiff, The Torrington Company ("Torrington"), also moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain determinations of Commerce's Final Results.
Specifically, NTN contends that Commerce unlawfully: (1) denied a price-based level of trade ("LOT") adjustment to normal value ("NV") for its constructed export price ("CEP") sales; (2) refused to calculate CEP profit on an LOT-specific basis; (3) conducted a duty-absorption inquiry under 19 U.S.C. § 1675(a)(4) (1994) for the subject reviews of the applicable antidumping duty orders covering antifriction bearings ("AFBs") from Germany; (4) determined that it applied a reasonable duty-absorption methodology and that duty absorption had in fact occurred; and (5) denied a downward adjustment to NTN's reported United States indirect selling expenses for imputed interests incurred in financing cash deposits for antidumping duties.
SKF contends that Commerce unlawfully: (1) conducted a duty-absorption inquiry under 19 U.S.C. § 1675(a)(4) for the subject reviews of the applicable antidumping duty orders covering AFBs from Germany; (2) determined that it applied a reasonable duty-absorption methodology and that duty absorption had in fact occurred; and (3) calculated constructed value ("CV") profit.
FAG contends that Commerce unlawfully: (1) calculated CV profit; (2) failed to match United States sales to "similar" home-market sales prior to resorting to CV when all home-market sales of identical merchandise have been disregarded; (3) conducted a duty-absorption inquiry under 19 U.S.C. § 1675(a)(4) for the subject reviews of the applicable antidumping duty orders covering AFBs from Germany; (4) determined that it applied a reasonable duty-absorption methodology and that duty absorption had in fact occurred; and (5) treated certain direct selling expenses as indirect selling expenses.
INA contends that Commerce unlawfully: (1) refused to deduct downward billing adjustments on INA's home-market sales; (2) failed to match United States sales to "similar" home-market sales prior to resorting to CV when all home-market sales of identical merchandise have been disregarded; (3) calculated CV profit; (4) failed to exclude sales made out of the ordinary course of trade from the home-market database; (5) included its zero-priced United States transactions in the margin calculations; (6) excluded zero-priced home-market sample transactions but not home-market sample sales; (7) calculated a single weighted-average CEP profit rate for each class or kind of merchandise; (8) excluded amounts for imputed credit and inventory carrying expenses in its calculation of total expenses for the CEP profit ratio; and (9) conducted a duty-absorption inquiry under 19 U.S.C. § 1675(a)(4) for the subject reviews of the applicable antidumping duty orders covering AFBs from Germany.
Torrington contends that Commerce unlawfully: (1) accepted SKF's home-market support rebates; (2) accepted SKF's home-market billing adjustments; and (3) accepted FAG's home-market rebates.
This case concerns the seventh administrative review of the antidumping duty order on AFBs from Germany for the period of review ("POR") covering May 1, 1995 through April 30, 1996. On June 10, 1997, Commerce published the preliminary results of the seventh review. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews ("Preliminary Results"), 62 Fed. Reg. 31,566. Commerce published the Final Results on October 17, 1997, see 62 Fed.Reg. at 54,043, and the Amended Final Results on November 20, 1997, see 62 Fed.Reg. at 61,963.
Since the administrative review at issue was initiated after December 31, 1994, the applicable law is the antidumping statute as amended by the Uruguay Round Agreements Act ("URAA"), Pub.L. No. 103-465, 108 Stat. 4809 (1994) (effective January 1, 1995). See Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed.Cir.1995) ().
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); see NTN Bearing Corp. of Am. v. United States, 24 CIT ___, ___, 104 F.Supp.2d 110, 115-16 (2000) ().
NTN contends that Commerce improperly denied a price-based LOT adjustment for CEP sales made in the United States market at an LOT different from the home-market sales.1 See NTN's Mem. Supp. Mot. J. Agency R. ("NTN's Mem.") at 7. In particular, NTN argues, inter alia, that Commerce incorrectly determined NTN's CEP LOT because the agency failed to use the sale to the first unaffiliated purchaser in the United States to determine NTN's CEP LOT. See id. NTN requests that the Court remand the LOT issue to Commerce to grant NTN a price-based LOT adjustment for its CEP sales. See id. at 9.
Commerce, in turn, argues that it properly determined the LOT for NTN's CEP sales after deducting expenses and profit from the price to the first unaffiliated purchaser in the United States pursuant to § 1677a(d) because § 1677b(a)(7)(A), which provides for an LOT adjustment, requires Commerce to compare CEP, not the "unadjusted" starting price of CEP, with NV. See Def.'s Mem. in Partial Opp'n to Pls.' Mots. J. Agency R. ("Def.'s Mem.") at 92-93. Commerce notes CEP is defined in § 1677a(b) as the price at which the subject merchandise is first sold (or agreed to be sold) in the United States as "adjusted" under § 1677a(d). See id. at 93. According to Commerce, the adjusted CEP price is to be compared to prices in the home market based on the same LOT whenever it is practicable; when it is not practicable and the LOT difference affects price comparability, Commerce makes an LOT adjustment. See id. at 94. Commerce makes a CEP offset when Commerce is not able to quantify price differences between the CEP LOT and the LOT of the comparison sales, and if NV is established at a more advanced state of distribution than the CEP LOT. See id. If the CEP price is not adjusted before it is compared under the approach advocated by NTN, "there will always be substantial deductions from the resale prices in the United States (because they are mandatory)," but they "will be compared to resale prices in the home market from which virtually [there will] never be any equivalent deductions," thus creating a substantial imbalance and a skewed comparison between NV and CEP. Id. at 95 (emphasis in the original).
Commerce claims that it properly denied an LOT adjustment for NTN's CEP sales because NTN failed to establish its entitlement to an LOT adjustment. Commerce was unable to calculate an...
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