NSK LTD v. U.S.
| Decision Date | 02 September 1999 |
| Docket Number | NTN-BOWER |
| Citation | 190 F.3d 1321 |
| Parties | (Fed. Cir. 1999) NSK LTD. and NSK CORPORATION, Plaintiffs, and NIPPON PILLOW BLOCK SALES CO., LTD. and FYH BEARING UNITS USA, Plaintiffs, v KOYO SEIKO CO., LTD. and KOYO CORPORATION OF U.S.A., Plaintiffs-Appellants, and NTN BEARING CORPORATION OF AMERICA, AMERICAN NTN BEARING MANUFACTURING CORP., NTN CORPORATION, NTN DRIVESHAFT, INC., antCORPORATION, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, and HONDA MOTOR CO. LTD., AMERICAN HONDA MOTOR CO., INC.,HONDA OF AMERICA MFG., INC. and HONDA POWER EQUIPMENT MFG., INC., Defendants-Appellees, v. THE TORRINGTON COMPANY, Defendant-Cross Appellant. 98-1547, -1548, -1582 Decided: |
| Court | U.S. Court of Appeals — Federal Circuit |
Robert A. Lipstein, Lipstein, Jaffe & Lawson, L.L.P., of Washington, DC, for plaintiff NSK Corporation and NSK, Ltd. Of counsel were Matthew P. Jaffe and Grace W. Lawson.
Neil R. Ellis, Powell, Goldstein, Frazer & Murphy, of Washington, DC, argued for plaintiff-appellants Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. With him on the brief were Peter O. Suchman and Susan M. Mathews. Of counsel was Elizabeth C. Hafner.
Kazumune V. Kano, Barnes, Richardson & Colburn, of Chicago, Illinois, argued for plaintiffs-appellants NTN Bearing Corporation of America, et al. With him on the brief was Donald J. Unger. Of counsel was Christine H. T. Yang.
Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee, United States. With her on the brief were David W. Ogden, Acting Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were Stephen J. Powell, Chief Counsel for Import Administration, Berniece A. Browne, Senior Attorney, and: Mark A. Barnett, Thomas H. Fine, Patrick V. Gallagher, Myles S. Getlan, and Rina Goldenberg, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.
Donald Harrison, Gibson, Dunn & Cruthcer, LLP, of Washington, DC, argued for Honda Motor Co., Ltd., American Honda Motor Co., Inc., et al. With him on the brief was Merritt R. Blakeslee.
James R. Cannon, Jr., Stewart and Stewart, of Washington, DC, argued for defendant cross-appellant, The Torrington Company. With him on the brief were Terence P. Stewart and Geert De Prest. Of counsel were Wesley K. Caine and Lane S. Hurewitz.
Before MAYER, Chief Judge, MICHEL and RADER, Circuit Judges.
This consolidated appeal concerns the Department of Commerce, International Trade Administration's ("Commerce's") fourth annual administrative review of the antidumping order on certain antifriction bearings and parts thereof (the "antifriction bearings"). See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al.; Final Results of Antidumping Duty Administrative Reviews, Partial Termination of Administrative Reviews, and Revocation in Part of Antidumping Duty Orders, 60 Fed. Reg. 10,900 (Dep't Commerce, 1995) ("Final Results"). On appeal, the Court of International Trade granted in part and denied in part various parties' motions for judgment on the agency record and remanded to Commerce for various redeterminations in accordance with its opinion. See NSK Ltd. v. United States, 969 F. Supp. 34 (Ct. Int'l Trade 1997) ("NSK I"). Commerce made the redeterminations as ordered on remand. See Final Results of Redetermination Pursuant to Court Remand, NSK Ltd., et al. v. United States, slip op. 97-74 (June 17, 1997), (Dep't Commerce Apr. 28, 1998) ("Remand Results"). The Remand Results were subsequently affirmed by the Court of International Trade in their entirety. See NSK Ltd. v. United States, 4 F.Supp.2d 1264 (Ct. Int'l Trade Jun. 16, 1998) ("NSK II").
Plaintiffs-Appellants Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (together "Koyo Seiko"), Plaintiffs-Appellants NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp., NTN Corporation, NTN Driveshaft, Inc., and NTN-Bower Corporation (collectively "NTN"), and Defendant-Cross Appellant The Torrington Company ("Torrington") now appeal and cross appeal to this court from various aspects of NSK I and NSK II. We affirm the judgment of the Court of International Trade with respect to NTN's appeal because we find no error, legal or factual, with regard to (i) Commerce's inclusion of certain sample sales and sales with a sporadic sales history as home market sales in its calculation of foreign market value ("FMV"); (ii) Commerce's exclusion of related party sales from the home market sales used in its calculation of FMV; (iii) Commerce's refusal to adjust FMV to take account of NTN's reported home market discounts; and (iv) Commerce's comparison of sales across different levels of trade in its calculation of FMV. However, with respect to the Court of International Trade's rejection of the home market warranty expense factor reported by Koyo Seiko and accepted by Commerce as a "circumstances of sale" adjustment to FMV, we reverse on the grounds that Commerce's acceptance of the adjustment was based upon a reasonable interpretation of the governing statute, accorded with applicable precedent, and its rejection by the court was therefore error. Finally, we affirm with respect to Torrington's cross appeal of the determination of the United States price of the antifriction bearings bought and resold by Defendants-Appellees Honda Motor Co., Ltd., American Honda Motor Co., Inc., Honda of America Mfg., Inc. and Honda Power Equipment Mfg., Inc (collectively, "Honda"). Like the Court of International Trade, we hold that Commerce reasonably interpreted the term "reseller" in the governing antidumping statute and that substantial evidence supports Commerce's determination that Honda constitutes such a "reseller" with regard to its sales of subject antifriction bearings.
The fourth annual administrative review of the antidumping order at issue covered antifriction bearings entered during the period May 1, 1992, through April 30, 1993. Although the review concerned imports from eight countries, the judgments on appeal here concern only imports from Japan. Because the review was initiated prior to January 1, 1995, the applicable antidumping law and regulations are those that were in effect prior to the changes made by the Uruguay Round Amendments Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (the "URAA"). See URAA § 291(a)(2), (b); Cemex, S.A. v. United States, 133 F.3d 897, 899 n.1 (Fed. Cir. 1998). Under the then-applicable law, the antidumping duty calculated by Commerce in the Final Results and the Remand Results was imposed "in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise." 19 U.S.C. § 1673 (1988). Broadly speaking, "[f]oreign market value is the price of the merchandise in the producer's home market or its export price to countries other than the United States." Thai Pineapple Pub. Co. v. United States, ___ F.3d ___, ___, 187 F.3d 1362, 1365 (Fed. Cir. Jul. 28, 1999); see generally 19 U.S.C. § 1677b (1988). United States price ("USP") is the price at which the merchandise is purchased from the manufacturer or a reseller for exportation to the United States or the price at which the merchandise is sold or agreed to be sold in the United States for the account of the exporter. See 19 U.S.C. § 1677a (1988).
The parties appealed numerous aspects of the Final Results to the Court of International Trade. In NSK I, the Court of International Trade affirmed the Final Results, other than with respect to thirteen issues which were remanded back to Commerce for redetermination. See NSK I, 969 F. Supp. at 66. Commerce's subsequent Remand Results were then affirmed in their entirety by the Court of International Trade in NSK II.
In this court, NTN appeals with respect to four issues. Specifically, NTN argues (i) that substantial evidence does not support Commerce's inclusion in its FMV calculation of certain sales identified by NTN as sample sales and sporadic sales; (ii) that Commerce unreasonably excluded from its calculation of FMV certain of NTN's home market sales to related parties; (iii) that Commerce in its Remand Results erroneously refused to adjust its calculation of FMV for NTN's reported home market discount as direct selling expenses; and (iv) that Commerce's comparison of sales across different levels of trade in its calculation of FMV is not supported by substantial evidence.
Koyo Seiko appeals only with respect to one issue. In NSK I, the Court of International Trade held that Commerce's acceptance in the Final Results of Koyo Seiko's proposed circumstance of sale adjustment to FMV for its home market warranty expenses was erroneous due to the adjustment including warranty expenses on out-of-scope merchandise. Koyo Seiko argues that Commerce's interpretation of the statute providing for circumstance of sale adjustments to FMV was reasonable, comported with precedent, and thus should have been upheld in NSK I.
Finally, Torrington cross appeals with respect to Commerce's determination in its Final Results, as affirmed by the Court of International Trade in NSK I, that Honda constitutes a "reseller" as that term is used in the statute governing the calculation of USP and the accompanying definitional regulation. Torrington argues that Commerce unreasonably premised its determination that Honda was a "reseller" upon its finding that Honda's suppliers neither knew nor had reason to know that their sales to Honda would be exported to the United States.
"In reviewing a decision by the Court of International Trade, this court applies anew the statutory standard of...
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Nsk Ltd. v. U.S.
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