NTN Bearing Corp. of America v. U.S., 93-1048
| Decision Date | 29 June 1993 |
| Docket Number | No. 93-1048,93-1048 |
| Parties | NTN BEARING CORPORATION OF AMERICA, American NTN Bearing Mfg. Corp. and NTN Toyo Bearing Co., Ltd., Plaintiffs-Appellants, v. The UNITED STATES and Ron Brown, Secretary of Commerce, Defendants-Appellees, and The Torrington Co., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Brian F. Walsh, Barnes, Richardson & Colburn, Chicago, IL, argued for plaintiffs-appellants. With him on the brief was Donald J. Unger.
A. David Lafer, Sr. Trial Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendants-appellees. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Of counsel were Berniece A. Browne and Dean A. Pinkert, Dept. of Justice. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin. and Stephen J. Claeys, Atty. Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC.
James R. Cannon, Jr., Stewart & Stewart, Washington, DC, argued for defendant-appellee. Of counsel were Terence P. Stewart and Eugene L. Stewart.
Before NEWMAN, CLEVENGER and RADER, Circuit Judges.
NTN Bearing Corp. of America, American NTN Bearing Manufacturing Corp. and NTN Toyo Bearing Co., Ltd. (collectively referred to as NTN) appeal the judgment of the United States Court of International Trade denying NTN's motion for judgment on the record and holding that the International Trade Administration of the Department of Commerce (Commerce) properly included NTN's imported antifriction bearing components within the scope of the antidumping order imposed on antifriction bearings imported from Japan. NTN Bearing Corp. of Am. v. United States, 802 F.Supp. 448 (Ct. Int'l Trade 1992). Because the components NTN imports are ultimately sold in the United States and because it was not improper for Commerce to assign the margin calculations for assembled bearings to bearing components, we affirm.
NTN Toyo Bearing Company is a Japanese manufacturer of bearings. Its American subsidiary manufactures finished bearings from, inter alia, bearing components produced by NTN in Japan. In March 1988, the Torrington Company, a manufacturer of bearings in the United States, filed an antidumping petition with Commerce requesting that antidumping duties be imposed on antifriction bearings and parts thereof (other than tapered roller bearings) imported from nine different countries including Japan. In order for an antidumping duty order to be imposed on imports of antifriction bearings from Japan, Commerce would have to determine that these imports were sold in the United States at less-than-fair value and the United States International Trade Commission (ITC) would have to determine that the imports injured a domestic industry. 19 U.S.C. § 1673 (1988).
In April 1988, Commerce initiated multiple antidumping investigations to determine whether imports of antifriction bearings from the nine countries were being sold at less-than-fair value. E.g., Antifriction Bearings (Other Than Tapered Roller Bearings) & Parts Thereof From Japan, 53 Fed.Reg. 15,076 (Dep't Comm. Apr. 27, 1988) (initiation notice). The ITC likewise instituted preliminary and final investigations to determine whether U.S. industries were injured by reason of those imports. Antifriction Bearings (Other Than Tapered Roller Bearings) & Parts Thereof From the F.R.G., Fr., Italy, Japan, Rom., Sing., Swed., Thail., & the U.K., 53 Fed.Reg. 11,917 (USITC Apr. 11, 1988) (); Antifriction Bearings (Other Than Tapered Roller Bearings) & Parts Thereof From the F.R.G., Fr., Italy, Japan, Rom., Sing., Swed., Thail., & the U.K., 53 Fed.Reg. 50,304 (USITC Dec. 14, 1988) (). These antifriction bearings antidumping investigations were an enormous administrative undertaking for both agencies, encompassing five different classes or kinds of antifriction bearings imported from nine countries affecting six different domestic industries producing antifriction bearings. Due to the massive number of sales transactions and the complexity of the investigations, Commerce modified several aspects of its sales reporting requirements for the imported merchandise. Commerce decided, pursuant to 19 C.F.R. § 353.42(b) (1992), that it would seek data on only 33 percent by volume of each respondent's U.S. sales, instead of covering the customary minimum 60 percent of sales. Antifriction Bearings (Other Than Tapered Roller Bearings) & Parts Thereof From Japan, 53 Fed.Reg. 45,343, 45,345 (Dep't Comm. Nov. 9, 1988) (). NTN approved of this rate of sampling. Commerce further decided that importers of bearing components, which assembled the components into completed bearings in the United States before sale to an unrelated purchaser, would not have to provide Commerce with constructive prices for the components at the time of importation. They would supply actual prices for the bearings assembled from those components instead.
[W]here U.S. subsidiaries of foreign bearings producers [import] components and parts to be assembled before sale to an unrelated customer in the United States, the respondents [need] only to report (1) the price of the assembled bearing as sold to the unrelated customer, and (2) the price of an identical bearing sold in the relevant foreign market. In other words, the respondents [do] not have to deduct the value added in the United States to arrive at a "constructed" U.S. price of the components and parts in their condition as imported.
Antifriction Bearings (Other Than Tapered Roller Bearings) & Parts Thereof From the F.R.G., 54 Fed.Reg. 18,992, 19,028 (Dep't Comm. May 3, 1988 Appendix B) (final less-than-fair value determinations) (Antifriction Bearings ). During its final investigations, however, Commerce decided to exclude these data from its margins calculations because "not deducting U.S. value added could skew the dumping calculations considerably." Id. at 19,029. Of ultimate importance to NTN, Commerce determined that imports of ball bearings, cylindrical roller bearings, spherical roller bearings, needle roller bearings, spherical plain bearings and parts thereof from Japan were being sold in the United States at less-than-fair value, id. at 19,101, and the ITC found that ball bearings, cylindrical roller bearings, spherical plain bearings and parts thereof from Japan had caused material injury to a U.S. industry. Antifriction Bearings (Other Than Tapered Roller Bearings) & Parts Thereof From the F.R.G., Fr., Italy, Japan, Rom., Sing., Swed., Thail., & the U.K., 54 Fed.Reg. 21,488, 21,489 (USITC May 18, 1989) (final injury determination). Consequently, Commerce imposed antidumping orders on imports of the three types of bearings--ball, cylindrical roller and spherical plain--as well as parts thereof from Japan that satisfied the requirements of section 1673. These orders included antifriction bearing components imported by NTN. Ball Bearings, Cylindrical Roller Bearings, & Spherical Plain Bearings, & Parts Thereof From Japan, 54 Fed.Reg. 20,904, 20,905 (Dep't Comm. May 15, 1989) (antidumping duty orders). NTN appealed the application of these orders to bearing components to the Court of International Trade.
The court identified the central issue of NTN's appeal as whether NTN's components were properly included within the scope of Commerce's investigation. The court concluded that they were. In answering NTN's claim that its components could not be subject to antidumping duties because they were not sold in the United States to an unrelated party until assembled into finished antifriction bearings, the court held that components properly within the scope of Commerce's investigation may be subject to antidumping duties, particularly when the components have no independent application other than to be combined and further refined into completed bearings. NTN Bearing Corp., 802 F.Supp. at 451-53 (). The court also upheld Commerce's decision to exclude NTN's components from the agency's dumping margin calculation because it was a reasonable decision fully explained at the administrative level. Id. at 453.
On appeal, NTN contends that the Court of International Trade misconstrued its challenge to Commerce's authority to impose an antidumping order on components. NTN agrees that bearing components were properly within the scope of Commerce's investigations, but contends that the scope of the investigations is irrelevant. Rather, NTN asserts that it is unlawful for Commerce to calculate dumping margins on imported bearing components that are not sold as bearing components to an unrelated purchaser in the United States before they are incorporated into a finished antifriction bearing because the imported components have not been sold as required by 19 U.S.C. § 1673.
Commerce may impose antidumping duties on merchandise imported into the United States if, pursuant to a bifurcated decision-making process,
the administering authority [Commerce] determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value
and the ITC finds injury to a domestic industry by reason of that imported merchandise. 19 U.S.C. § 1673. Following the statutory...
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