Federal-Mogul Corp. v. U.S., Slip Op. 96-193.
| Citation | 950 F.Supp. 1179 |
| Decision Date | 12 December 1996 |
| Docket Number | Slip Op. 96-193.,Court No. 93-08-00461. |
| Parties | FEDERAL-MOGUL CORPORATION, Plaintiff and Plaintiff-Intervenor, The Torrington Company, Plaintiff and Plaintiff-Intervenor, v. UNITED STATES, Defendant, SKF USA INC., SKF France S.A., SKF GmbH, SKF Industrie, S.p.A. and SKF Sverige AB; SNR Roulements; Meter S.p.A.; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp., NTN Corporation and NTN Kugellagerfabrik (Deutschland) GmbH; NSK Ltd. and NSK Corporation; Emerson Power Transmission Corporation; INA Walzlager Schaeffler KG and INA Bearing Company, Inc.; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.; RHP Bearings and RHP Bearings Inc.; NMB Singapore Ltd., Pelmec Industries (Pte.) Ltd., NMB Thai Ltd. and Pelmec Thai Ltd.; FAG Kugelfischer Georg Schafer KGaA, FAG Italia, S.p.A., FAG (U.K.) Limited, The Barden Corporation (U.K.) Limited, FAG Bearings Corporation and The Barden Corporation, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr., Wesley K. Caine, William A. Fennell, Geert de Prest, John M. Breen, Lane S. Hurewitz, Myron A. Brilliant, Patrick J. McDonough and Amy S. Dwyer) for plaintiff and plaintiff-intervenor The Torrington Company.
Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Jeffrey M. Telep); of counsel: Michelle Behaylo, Stacy J. Ettinger, Thomas H. Fine, Anna Park, Alexandra Levinson and David Ross) for defendant.
Howrey & Simon (Herbert C. Shelley, Alice A. Kipel, Anne Talbot and Patricia M. Steele) for defendant-intervenors SKF USA Inc., SKF France S.A., SKF GmbH, SKF Industrie, S.p.A. and SKF Sverige AB.
Barnes, Richardson & Colburn (Donald J. Unger, Kazumune V. Kano and Lawrence M. Friedman) for defendant-intervenors NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp., NTN Corporation and NTN Kugellagerfabrik (Deutschland) GmbH.
Powell, Goldstein, Frazer & Murphy (Peter O. Suchman, Neil R. Ellis, Robert A. Calaff and Susan M. Mathews) for defendant-intervenors Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.
White & Case (Walter J. Spak, William J. Clinton, David E. Bond and Edmund W. Sim) for defendant-intervenors NMB Singapore Ltd., Pelmec Industries (Pte.) Ltd., NMB Thai Ltd. and Pelmec Thai Ltd.
On February 13, 1996, this Court, in Federal-Mogul Corp. v. United States, 20 CIT ___, 918 F.Supp. 386 (1996), remanded the Department of Commerce, International Trade Administration's ("Commerce") final determination concerning the third administrative review of the antidumping duty order covering antifriction bearings ("AFBs"), entitled Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Duty Order, 58 Fed.Reg. 39,729 (1993), as amended, Anti-friction 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, 58 Fed.Reg. 42,288 (1993); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France and the United Kingdom; Amendment to the Final Results of Antidumping Duty Administrative Reviews, 58 Fed.Reg. 51,055 (1993); and Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Amendment to Final Results of Antidumping Duty Administrative Reviews, 59 Fed.Reg. 9,469 (1994) (collectively "Final Results"). The Final Results covered the period May 1, 1991 through April 30, 1992. Final Results, 58 Fed.Reg. at 39,730.
On August 21, 1996, Commerce released draft remand results and invited the parties to comment. On September 20, 1996, upon receiving comments from several parties on the draft remand results, Commerce filed its Results on Redetermination Pursuant to Court Remand ("Remand Results"). As the Remand Results affect seventeen of the reviewed companies, see Remand Results at 1, several parties have submitted comments and rebuttals.
Plaintiff and plaintiff-intervenor, The Torrington Company ("Torrington"), alleges that Commerce erred in: (1) allowing NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp., NTN Corporation and NTN Kugellagerfabrik (Deutschland) GmbH's (collectively "NTN") interest expenses on estimated duty deposits as an offset against actual U.S. selling expenses; and (2) determining that NMB Thai Ltd., Pelmec Thai Ltd. and NMB Corporation's ("NMB/Pelmec") Route B sales should be treated as home market sales. Torrington's Comments on the Remand Results ("Torrington's Comments").
Defendant-intervenors, SKF USA Inc., SKF France S.A., SKF GmbH, SKF Industrie, S.p.A. and SKF Sverige AB (collectively "SKF"), contend that Commerce erred in making changes to the Final Results that were not at issue in this remand and, as a result, improperly disallowed certain SKF rebates and an SKF Italy cash discount. Comments of SKF Regarding Final Results of Redetermination ("SKF's Comments").
Defendant-intervenor, NTN, argues that Commerce erred in: (1) improperly recalculating NTN's inventory carrying costs; and (2) failing to treat aftermarket as a different level of trade by not recognizing that NTN incurred different selling expenses at different levels of trade. NTN's Comments on the Department of Commerce's Remand Results ("NTN's Comments").
The Final Results allowed NTN's downward adjustment to total U.S. indirect selling expense for interest expenses on antidumping duty cash deposits. See Final Results, 58 Fed.Reg. at 39,749. This Court directed Commerce, upon remand, to reconsider its decision to accept NTN's downward adjustment. Federal-Mogul, 20 CIT at ___, 918 F.Supp. at 412-13.
After reconsideration, Commerce determined that it properly allowed the downward adjustment. Remand Results at 26-29. Commerce likened the loan interest expenses at issue to legal fees, emphasizing that the expenses were incurred solely because of the antidumping duty orders, and so, could not be categorized as selling expenses. Id. at 26-27 (citing Daewoo Elecs. Co. v. United States, 13 CIT 253, 270, 712 F.Supp. 931, 947 (1989)).
Torrington claims that the interest expenses at issue are selling expenses because they are incurred due to NTN's decision to sell the subject merchandise at less than fair value. Torrington's Comments at 6. Further, Torrington asserts that the adjustment for NTN's interest duplicates the interest paid on refund of excess cash deposits under 19 U.S.C. §§ 1673f(b) and 1677g (1988) and creates a windfall for the importer.1 Id. at 4-5.
This Court finds Torrington's arguments unpersuasive and is satisfied with Commerce's explanation for accepting NTN's downward adjustment to its U.S. indirect selling expenses. First, there is no support for Torrington's assertion that any expense related to antidumping proceedings is automatically a selling expense related to the sale of the subject merchandise. Indeed, pursuant to the rationale of Daewoo, such expenses are not necessarily selling expenses. In Daewoo, the court held that legal expenses related to antidumping duty proceedings are not selling expenses.2 Similarly, the interest expenses in this case do not qualify as selling expenses, as they are not related to the sale of merchandise, but to NTN's participation in the antidumping proceeding.
Further, Torrington's suggestion that the NTN interest adjustment is duplicative of that allowed under the statute is incorrect. The statutory sections at issue compensate an importer for the amount of cash deposit Commerce determines was never actually owed. See 19 U.S.C. §§ 1673f(b) & 1677g. In contrast, the adjustment to NTN's indirect selling expense reflects an actual expense to NTN that should not be included among NTN's selling expenses.3
Consequently, the Court sustains Commerce's determination that the interest NTN paid for antidumping duty deposits is not a selling expense and, thus, should be excluded from NTN's U.S. indirect selling expenses.
In the original less than fair value ("LTFV") investigation, Commerce excluded NMB/Pelmec's Route B sales4 from its home market database, concluding that they were export sales. See Final Determination of Sales at Less Than Fair Value: Ball Bearings and Parts Thereof From Thailand, 54 Fed.Reg. 19,117, 19,118-19 (1989). However, Commerce concluded in its Final Results that Route B sales should not be excluded because they are home market (Thailand) sales. See Final Results, 58 Fed.Reg. at 39,782-83. The Court remanded this issue for Commerce to explain why it changed its findings.
Commerce explained upon remand that the Route B sales at issue are identical to the Route B sales in the second review. In the second review, Commerce concluded that Route B sales were home market sales. The Court upheld this treatment, stating that "the location of the [first unrelated] sale transaction has a significant bearing on how a sale is classified...." Torrington Co. v. United States, 20 CIT ___, ___, 926 F.Supp. 1151, 1161 (1996). In this case, NMB/Pelmec's first Route B sales to unrelated customers were made to customers in Thailand and NMB/Pelmec knew that the Route B sales shipped through Singapore were ultimately destined for delivery and consumption in Thailand. Remand Results at 35. Consequently, Commerce included the Route B sales at issue in the home market database.
The LTFV investigation, however, presented circumstances that required Commerce to exclude Route B sales. Remand Results at 34-35. Commerce concluded that the first unrelated transaction with respect to the merchandise NMB/Pelmec classified as Route B sales occurred in...
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