Torrington Co. v. U.S.
| Decision Date | 23 June 1997 |
| Docket Number | Court No. 95-03-00353.,Slip Op. 97-81. |
| Citation | 969 F.Supp. 1332 |
| Parties | The TORRINGTON COMPANY, Plaintiff and Defendant-Intervenor, v. The UNITED STATES, Defendant, NMB Thai Ltd., Pelmec Thai Ltd., NMB Hi-Tech Bearings Ltd. and NMB Corporation, Defendants-Intervenors and Plaintiffs. |
| Court | U.S. Court of International Trade |
of counsel: Mark A. Barnett, Washington, DC, Michelle K. Behaylo, Grand Rapids, MI, Stacy J. Ettinger, Thomas H. Fine, Dean A. Pinkert, and David J. Ross, Attorney-Advisors, Washington, DC, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
Plaintiff and defendant-intervenor The Torrington Company ("Torrington") moves this Court pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record challenging aspects of the final determination of the Department of Commerce, International Trade Administration ("Commerce"), of the fourth administrative review of antifriction bearings ("AFBs") from Thailand, entitled 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 ("Final Results"), 60 Fed.Reg. 10,900 (1995). Defendant-intervenors and plaintiffs NMB Thai Ltd., Pelmec Thai Ltd., NMB Hi-Tech Bearings Ltd. and NMS Corporation (collectively "NMB") oppose Torrington's motion and also challenge Commerce's fourth administrative review of AFBs from Thailand.
On May 15, 1989, Commerce published the antidumping duty orders on AFBs from Thailand. See Antidumping Duty Order and Amendment to the Final Determination of Sales at Less Than Fair Value: Ball Bearings and Parts Thereof From Thailand, 54 Fed.Reg. 20,909 (1989). The fourth administrative review encompasses imports of AFBs entered during the period of May 1, 1992 through April 30, 1993. The present consolidated action concerns imports from Thailand.
On February 28, 1994, Commerce published the preliminary results of the fourth administrative review. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, Sweden, Thailand, and the United Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews, Partial Termination of Administrative Reviews, and Notice of Intent To Revoke Orders (in Part), 59 Fed.Reg. 9,463 (1994). On February 28, 1995, Commerce published the Final Results at issue. See Final Results, 60 Fed.Reg. at 10,900.
Torrington contests the following actions of Commerce: (1) calculation of profit based upon class or kind of merchandise or statutory minimum rather than upon reported sample sales of such or similar merchandise; (2) inclusion of Route B sales in home market database; (3) adjustment to foreign market value ("FMV") for freight expenses for Route B sales; (4) acceptance of billing adjustments on U.S. and home market sales; (5) acceptance of reported early payment discounts; and (6) acceptance of reported ocean and air freight costs.
NMB claims that Commerce erred by: (1) including research and development ("R & D") expenses related to non-subject merchandise in calculating cost of production and constructed value and failing to allocate R & D expenses of Minebea Co., Ltd. ("Minebea Japan") over the total consolidated cost of its sales; and (2) adding packing expenses to FMV twice.
On May 3, 1995, the Court granted Torrington's motion for a preliminary injunction enjoining the liquidation of the subject entries for the duration of this litigation.
The Court's jurisdiction in this action is derived from 19 U.S.C. § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).
The Court must uphold Commerce's final 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) (1994). Substantial evidence is Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).
In the Final Results at issue, Commerce calculated profit for constructed value on the basis of class or kind of merchandise. If the profit amount was less than the statutory minimum of eight percent, Commerce used the statutory minimum. Final Results, 60 Fed.Reg. at 10,923. Torrington contends that Commerce erred by not relying on reported sample sales of such or similar merchandise. According to Torrington, Commerce should have presumed that profit based on sales of such or similar merchandise, as reported by respondents, would be representative of the profit for the general class or kind of merchandise. Torrington's Mem. Supp. Mot. J. Agency R. at 21-24.
The Court has previously addressed and rejected Torrington's argument pertaining to this issue. In Federal-Mogul Corp. v. United States, 20 CIT at ___, ___, 918 F.Supp. 386, 403-04 (1996), the Court held that while Commerce has the authority to select appropriate samples for determining U.S. price and FMV pursuant to 19 U.S.C. § 1677f-1 (1988),1 Commerce also has the discretion not to use samples at all. See also Torrington Co. v. United States, 21 CIT ___, ___, 960 F.Supp. 339, 343-44 (1997); INA Walzlager Schaeffler KG v. United States, 21 CIT ___, ___, 957 F.Supp. 251, 270-71 (1997). In accordance with prior decisions of this Court, Commerce is sustained on this issue.
Torrington contests Commerce's decision to include NMB's Route B sales in the home market database. Torrington argues that NMB failed to establish that its Route B sales were in the ordinary course of trade as defined by 19 U.S.C. § 1677(15) (1988). Torrington maintains that Commerce's conclusion that the sales were in the ordinary course of trade is inconsistent with Commerce's determinations in the original investigation and other cases. Torrington's Mem. Supp. Mot. J. Agency R. at 26-31. Torrington further asserts that NMB did not demonstrate that its Route B sales consisted of ball bearings produced in Thailand subject to this investigation. Id. at 31-32.
Commerce responds that it properly classified NMB's Route B sales as home market sales once it determined that the first sales to unrelated parties occurred in Thailand. Commerce also insists that the sales are in the ordinary course of trade even though the trade route of Route B sales differs from that of Route A sales. Commerce explains that because NMB is subject to government restrictions on sales in Thailand, it was reasonable for NMB to devise a method to circumvent the restrictions in order to increase sales in the home market. Def.'s Partial Opp'n to Mots. J. Agency R. at 13-14.
Commerce further argues that Torrington failed to exhaust its administrative remedies regarding its contention that NMB did not demonstrate that its Route B sales are produced in Thailand. In the alternative, Commerce insists it verified that Route B ball bearings were indeed produced in Thailand. Id. at 14-16.
NMB agrees with Commerce's treatment of its Route B sales. NMB argues that the types of sales that fall within the definition of sales in the ordinary course of trade vary from one country to another. NMB explains that the AFBs are shipped out of Thailand prior to the sale of the merchandise because the Thai customs authority restricts direct shipments from a bonded facility to a customer with Board of Investment status.2 NMB's Opp'n to Mot. J. Agency R. at 8-9. NMB further contends that, in contrast to the Route B sales involved in the original investigation, none of the Route B sales in this review were made to unrelated parties in Singapore. Id. at 10-11.
Torrington raised this same issue in a challenge to the third administrative review. See Federal-Mogul, 20 CIT at ___, 918 F.Supp. at 416-18. After remanding this issue to Commerce to explain its reasons for treating Route B sales as home market sales, the Court upheld Commerce's decision after determining that NMB's Route B sales never entered the commerce of Singapore. Federal-Mogul Corp. v. United States, 20 CIT ___, ___, 950 F.Supp. 1179, 1184 (1996), appeals docketed, No. 97-1253 (Fed.Cir. Feb. 27, 1997), No. 97-1321 (Fed.Cir. Apr. 18, 1997). The facts of this case are identical to those of the third administrative review. Therefore, the Court adheres to its prior decision and upholds Commerce's decision to treat NMB's Route B sales as home market sales.
In the Final Results, Commerce treated NMB's post-sale home market freight expenses as direct selling expenses and its pre-sale home market freight expenses as indirect selling expenses. 60 Fed. Reg. at 10,942. Torrington contends that even if the Court...
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