NTN Bearing Corp. v. United States

Slip Op. 00-64
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
__________________________________________
:
NTN BEARING CORPORATION OF :
AMERICA, NTN CORPORATION, :
AMERICAN NTN BEARING :
MANUFACTURING CORPORATION, NTN :
DRIVESHAFT, INC. and NTN-BOWER :
CORPORATION; :
:
NSK LTD. and NSK CORPORATION; :
:
KOYO SEIKO CO., LTD. and KOYO :
CORPORATION OF U.S.A., :
:
Plaintiffs and Defendant-Intervenors, :
:
v. : Consol. Court No. 97-10-01801
:
UNITED STATES, :
:
Defendant, :
:
and :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor and Plaintiff. :
__________________________________________:
Plaintiffs and defendant-intervenors, NTN Bearing Corporation of America, NTN
Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and
NTN-Bower Corporation (collectively “NTN”), NSK Ltd. and NSK Corporation (collectively
“NSK”), and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (collectively “Koyo”), 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[,]
Consol. Court No. 97-10-01801 Page 2
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, NSK and Koyo argue that Commerce erred in conducting a duty
absorption inquiry under 19 U.S.C. § 1675(a)(4) (1994) for the seventh administrative review of
a 1989 antidumping duty order.
NTN further contends that Commerce erred in: (1) recalculating NTN’s United States
credit expenses on a transaction-specific rather than on a customer-specific basis for constructed
export price (“CEP”) sales; (2) denying a price-based, level of trade (“LOT”) adjustment to
normal value (“NV”) under 19 U.S.C. § 1677b(a)(7)(A) for its CEP sales; (3) refusing to accept
NTN’s reported home market and United States indirect selling expenses based on different trade
levels; (4) refusing to calculate CEP profit on a LOT-specific basis; (5) denying a downward
adjustment to NTN’s reported United States indirect selling expenses for imputed interests
incurred in financing cash deposits for antidumping duties; (6) refusing to exclude NTN’s
reported zero-price sample sales from its United States sales database; (7) failing to adjust NTN’s
cost of production (“COP”) and constructed value (“CV”) data on a model-specific basis; (8)
including NTN’s sales with abnormally high profits and certain home market sample sales from
the NV calculation; and (9) excluding certain NTN home market sales to affiliated parties in the
NV calculation. NTN, however, claims that Commerce correctly accepted its reported home
market discounts as direct price adjustments to NV.
NSK also asserts that Commerce erred in: (1) deducting NSK’s United States repacking
expenses as direct selling expenses pursuant to 19 U.S.C. § 1677a(d)(1)(B); (2) calculating profit
for CV under 19 U.S.C. §§ 1677b(e)(2)(A), 1677(16); and (3) denying a partial, price-based LOT
adjustment to NV under 19 U.S.C. § 1677b(a)(7)(A) for CEP sales when matched to its after-
market sales in its home market.
Koyo additionally claims that Commerce properly accepted Koyo’s reported home market
billing adjustments as direct price adjustments to NV.
Commerce responds that it properly: (1) construed 19 U.S.C. § 1675(a)(4) and (c) as
authorizing it to conduct a duty absorption inquiry for the subject review; (2) treated NSK’s
United States repacking expenses as direct selling expenses under 19 U.S.C. § 1677a(d)(1)(B);
(3) calculated CV profit; (4) recalculated NTN’s United States credit expenses on a transaction-
specific basis for CEP sales; (5) denied a LOT adjustment for NTN’s CEP sales; (6) interpreted
19 U.S.C. § 1677b(a)(7) as not providing for a partial LOT adjustment for NSK’s CEP sales; (7)
recalculated NTN’s home market and United States indirect selling expenses without regard to
LOT, however, since it did not state in the Final Results its reasons for recalculating NTN’s
home market indirect selling expenses, requests that the issue be remanded so it may articulate its
reasons for such recalculation; (8) determined NTN’s CEP profit without regard to LOT; (9)
Consol. Court No. 97-10-01801 Page 3
denied an adjustment to NTN’s reported indirect selling expenses for imputed interests allegedly
incurred in financing antidumping duty cash deposits; (10) included NTN’s sample sales in its
United States sales database; (11) adjusted NTN’s COP and CV data; (12) included NTN’s sales
with abnormally high profits and home market sample sales in the NV calculation; (13)
disregarded NTN’s affiliated party sales from the NV calculation; and (14) treated Koyo’s
reported home market billing adjustments and NTN’s reported home market discounts as direct
price adjustments to NV.
Although Torrington generally agrees with Commerce, it maintains that Commerce erred
in accepting Koyo’s home market billing adjustments and NTN’s alleged home market discounts
as direct price adjustments in calculating NV.
Held: NTN’s, NSK’s and Koyo’s USCIT R. 56.2 motions are denied in part and granted
in part. Torrington’s USCIT R. 56.2 motion is denied. The case is remanded to Commerce to:
(1) annul all findings and conclusions made pursuant to the duty absorption inquiry conducted for
this review; (2) make adjustments pursuant to 19 U.S.C. § 1677a(c) to § 1677a(a)’s starting price
for determining EP; (3) make adjustments pursuant to § 1677a(c) and (d) to § 1677a(b)’s starting
price for determining CEP; (4) articulate how the record supports its decision in the Final Results
to recalculate NTN’s home market indirect selling expenses without regard to LOT; (5) clarify
how it complied with 19 U.S.C. §§ 1677e, 1677m by using facts available and applying an
adverse inference with respect to NTN’s alleged zero-price sample sales and, if Commerce
determines that it conformed with the statutory framework, to include NTN’s sample sales in its
United States sales database or, if Commerce determines it did not adhere to all of the statutory
prerequisite conditions, to give NTN the opportunity to remedy or explain any deficiency
regarding its sample sales; and (6) clarify whether NTN was provided with notice and
opportunity to respond pursuant to § 1677m(d) with regard to its COP and CV data.
[NTN’s, NSK’s and Koyo’s USCIT R. 56.2 motions are denied in part and granted in part.
Torrington’s USCIT R. 56.2 motion is denied. Case remanded.]
Dated: June 5, 2000
Barnes, Richardson & Colburn (Donald J. Unger, Kazumune V. Kano, David G. Forgue
and Christine H.T. Yang) for NTN.
Lipstein, Jaffe & Lawson, L.L.P. (Robert A. Lipstein, Matthew P. Jaffe and Grace W.
Lawson) for NSK.
Consol. Court No. 97-10-01801 Page 4
Powell, Goldstein, Frazer & Murphy LLP (Peter O. Suchman, Neil R. Ellis, Elizabeth C.
Hafner, Ronald E. Minsk and Leigh Fraiser) for Koyo.
David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director, Velta A.
Melnbrencis, Assistant Director Commercial Litigation Branch, Civil Division, United States
Department of Justice; of counsel: Stacy J. Ettinger, Thomas H. Fine, Patrick V. Gallagher,
Myles S. Getlan, Rina Goldenberg and David R. Mason, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, for defendant.
Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr., Geert De Prest and Lane
S. Hurewitz) for Torrington.
OPINION
TSOUCALAS, Senior Judge: Plaintiffs and defendant-intervenors, NTN Bearing
Corporation of America, NTN Corporation, American NTN Bearing Manufacturing Corporation,
NTN Driveshaft, Inc. and NTN-Bower Corporation (collectively “NTN”), NSK Ltd. and NSK
Corporation (collectively “NSK”), and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.
(collectively “Koyo”), 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 (“Amended Final Results”), 62 Fed. Reg. 61,963(Nov. 20, 1997). Defendant-intervenor and plaintiff, The Torrington Company (“Torrington”),
Consol. Court No. 97-10-01801 Page 5
also moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain
determinations of Commerce’s Final Results.
NTN, NSK and Koyo argue that Commerce erred in conducting a duty absorption inquiry
under 19 U.S.C. § 1675(a)(4) (1994) for this seventh administrative review of a 1989
antidumping duty order.
NTN also contends that Commerce erred in: (1) recalculating NTN’s United States credit
expenses on a transaction-specific rather than on a customer-specific basis for constructed export
price (“CEP”) sales; (2) denying a price-based, level of trade (“LOT” or “LOTs” for “levels of
trade”) adjustment to normal value (“NV”) under 19 U.S.C. § 1677b(a)(7)(A) for its CEP sales;
(3) refusing to accept NTN’s reported home market and United States indirect selling expenses
based on different trade levels; (4) refusing to calculate CEP profit on a LOT-specific basis; (5)
denying a downward adjustment to NTN’s reported United States indirect selling expenses for
imputed interests incurred in financing cash deposits for antidumping duties; (6) refusing to
exclude NTN’s reported zero-price sample sales from its United States sales database; (7) failing
to adjust NTN’s cost of production (“COP”) and constructed value (“CV”) data on a model-
specific basis; (8) including NTN’s sales with abnormally high profits and certain home market
sample sales from the NV calculation; and (9) excluding certain NTN home market sales to
affiliated parties in the NV calculation. NTN, however, claims that Commerce correctly
accepted its reported home market discounts as direct price adjustments to NV.
Further, NSK asserts that Commerce erred in: (1) deducting NSK’s United States
Consol. Court No. 97-10-01801 Page 6
repacking expenses as direct selling expenses pursuant to 19 U.S.C. § 1677a(d)(1)(B); (2)
calculating profit for CV under 19 U.S.C. §§ 1677b(e)(2)(A), 1677(16); and (3) denying a partial,
price-based LOT adjustment to NV under § 1677b(a)(7)(A) for CEP sales when matched to its
after-market sales in its home market.
Koyo also claims that Commerce properly accepted Koyo’s reported home market billing
adjustments as direct price adjustments to NV.
Commerce responds that it properly: (1) construed § 1675(a)(4) and (c) as authorizing it
to conduct a duty absorption inquiry for the subject review; (2) treated NSK’s United States
repacking expenses as direct selling expenses under § 1677a(d)(1)(B); (3) calculated CV profit;
(4) recalculated NTN’s United States credit expenses on a transaction-specific basis for CEP
sales; (5) denied a LOT adjustment for NTN’s CEP sales; (6) interpreted § 1677b(a)(7) as not
providing a partial LOT adjustment for NSK’s CEP sales; (7) recalculated NTN’s home market
and United States indirect selling expenses without regard to LOT, however, since it did not state
in the Final Results its reasons for recalculating NTN’s home market indirect selling expenses,
requests that the issue be remanded so it may articulate its reasons for such recalculation; (8)
determined NTN’s CEP profit without regard to LOT; (9) denied an adjustment to NTN’s
reported indirect selling expenses for imputed interests allegedly incurred in financing
antidumping duty cash deposits; (10) included NTN’s sample sales in its United States sales
database; (11) adjusted NTN’s COP and CV data; (12) included NTN’s sales with abnormally
high profits and home market sample sales in the NV calculation; (13) disregarded NTN’s
affiliated party sales from the NV calculation; and (14) treated Koyo’s reported home market
Consol. Court No. 97-10-01801 Page 7
billing adjustments and NTN’s reported home market discounts as direct price adjustments to
NV.
Although Torrington generally agrees with Commerce, it maintains that Commerce erred
in accepting Koyo’s home market billing adjustments and NTN’s alleged home market discounts
as direct price adjustments in calculating NV.
The Court will address each of these arguments in turn.
BACKGROUND
On May 15, 1989, Commerce published antidumping duty orders on antifriction bearings
(other than tapered roller bearings) and parts thereof (“AFBs”) imported from several countries,
including Japan. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and
Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904. This case
concerns the seventh administrative review of the antidumping duty order on AFBs from Japan
for the period of review (“POR”) covering May 1, 1995 through April 30, 1996. In accordance
with 19 C.F.R. § 353.22(c) (1995), Commerce initiated the seventh review on June 20, 1996.1
See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From
France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United
Kingdom; Initiation of Antidumping Duty Administrative Reviews and Notice of Request for
1
Since the administrative review at issue was initiated after December 31, 1994, the
applicable law in this case is the antidumping statute as amended by the Uruguay Round
Agreements Act (“URAA”), Pub. L. No. 103-465, 108 Stat. 4809 (1994) (effective Jan. 1, 1995).
Consol. Court No. 97-10-01801 Page 8
Revocation of an Order, 61 Fed. Reg. 31,506 (June 20, 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. Oral argument was held on March 8, 1999.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and
28 U.S.C. § 1581(c) (1994).
STANDARD OF REVIEW
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).
I. Substantial Evidence Test
“‘[S]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Universal Camera Corp.
Consol. Court No. 97-10-01801 Page 9
v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). In reviewing the substantiality of evidence, the Court must take into account the
entire record, including “whatever in the record fairly detracts from its weight.” Universal
Camera, 340 U.S. at 488.
II. Chevron Two-Step Analysis
To determine whether Commerce’s interpretation and application of the antidumping
statute is “in accordance with law,” the Court must undertake the two-step analysis prescribed by
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under the
first step, the Court reviews Commerce’s construction of a statutory provision to determine
whether “Congress has directly spoken to the precise question at issue.” Id. at 842. “To
ascertain whether Congress had an intention on the precise question at issue, [the Court]
employ[s] the ‘traditional tools of statutory construction.’” Timex V.I., Inc. v. United States, 157
F.3d 879, 882 (Fed. Cir. 1998) (citing Chevron, 467 U.S. at 843 n.9). “The first and foremost
‘tool’ to be used is the statute’s text, giving it its plain meaning. Because a statute’s text is
Congress’s final expression of its intent, if the text answers the question, that is the end of the
matter.” Id. (citations omitted). “Beyond the statute’s text, the tools of statutory construction
“include the statute’s structure, canons of statutory construction, and legislative history.” Id.(citations omitted); but see Flora Trade Council v. United States, 23 CIT __, __, 41 F. Supp. 2d
319, 323 n.6 (1999) (noting that “[n]ot all rules of statutory construction rise to the level of a
canon”) (citation omitted).
Consol. Court No. 97-10-01801 Page 10
If, after employing the first prong of Chevron, the Court determines that the statute is
silent or ambiguous with respect to the specific issue, the question for the Court becomes
whether Commerce’s construction of the statute is permissible. Chevron, 467 U.S. at 843.
Essentially, this is an inquiry into the reasonableness of Commerce’s interpretation. See Fujitsu
Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996). Provided that Commerce has
acted reasonably, the Court may not substitute its judgment for the agency’s. See IPSCO, Inc. v.
United States, 965 F.2d 1056, 1061 (Fed. Cir. 1992); see also Koyo Seiko Co. v. United States,
36 F.3d 1565, 1570 (Fed. Cir. 1994) (noting that “a court must defer to an agency’s reasonable
interpretation of a statute even if the court might have preferred another”). “In determining
whether Commerce’s interpretation is reasonable, the Court considers, among other factors, the
express terms of the provisions at issue, the objectives of those provisions and the objectives of
the antidumping scheme as a whole.” Mitsubishi Heavy Indus., Ltd. v. United States, 22 CIT __,
__, 15 F. Supp. 2d 807, 813 (1998).
Consol. Court No. 97-10-01801 Page 11
DISCUSSION
I. Commerce’s Duty Absorption Inquiry
A. Background
Title 19, United States Code, § 1675(a)(4) provides that during an administrative review
initiated two or four years after the “publication” of an antidumping duty order, Commerce, if
requested by a domestic interested party, “shall determine whether antidumping duties have been
absorbed by a foreign producer or exporter subject to the order if the subject merchandise is sold
in the United States through an importer who is affiliated with such foreign producer or
exporter.”2 Section 1675(a)(4) further provides that Commerce shall notify the International
Trade Commission (“ITC”) of its findings regarding such duty absorption for the ITC to consider
in conducting a five-year (“sunset”) review under 19 U.S.C. § 1675(c), and the ITC will take
such findings into account in determining whether material injury is likely to continue or recur if
an order were revoked under § 1675(c). See 19 U.S.C. § 1675a(a)(1)(D).
On May 31, 1996 and July 9, 1996, Torrington requested that Commerce conduct a duty
absorption inquiry pursuant to § 1675(a)(4) with respect to various respondents, including Koyo,
NTN and NSK, to determine whether antidumping duties had been absorbed during the POR.
See Final Results, 62 Fed. Reg. at 54,075.
2
Subsection (a)(4) of 19 U.S.C. § 1675 was added to the antidumping law by the
Uruguay Round Agreements Act (“URAA”) in 1994. See Pub. L. No. 103-465, § 220, 108 Stat.
4809, 4860.
Consol. Court No. 97-10-01801 Page 12
In the Final Results, Commerce found that duty absorption had occurred for the POR.
See id. at 54,044. In asserting authority to conduct a duty absorption inquiry under § 1675(a)(4),
Commerce first explained that for “transition orders,” as defined in 19 U.S.C. § 1675(c)(6)(C)
(1994) (that is, antidumping duty orders, inter alia, deemed issued on January 1, 1995),
regulation 19 C.F.R. § 351.213(j)(2)3 provides that Commerce “will make a duty-absorption
determination, if requested, for any administrative review initiated in 1996 or 1998.” See id. at
54,074 (citing 19 CFR Part 351 et al., Antidumping Duties; Countervailing Duties; Final [R]ule,
62 Fed. Reg. 27,296, 27,394 (May 19, 1997)). Commerce also noted that although the regulation
did not bind it for this seventh AFB review, it constitutes a public statement of how Commerce
3
The full text of 19 C.F.R. § 351.213(j) (1997) provides:
(j) Absorption of antidumping duties.
(1) During any administrative review covering all or part of a period falling
between the first and second or third and fourth anniversary of the publication of
an antidumping order under § 351.211, or a determination under § 351.218(d)
(sunset review), the Secretary, if requested by a domestic interested party within
30 days of the date of publication of the notice of initiation of the review, will
determine whether antidumping duties have been absorbed by an exporter or
producer subject to the review if the subject merchandise is sold in the United
States through an importer that is affiliated with such exporter or producer. The
request must include the name(s) of the exporter or producer for which the inquiry
is requested.
(2) For transition orders defined in section 751(c)(6) of the Act, the Secretary
will apply paragraph (j)(1) of this section to any administrative review initiated in
1996 or 1998.
Id.
Consol. Court No. 97-10-01801 Page 13
construes § 1675(a)(4).4 See id. Commerce concluded that (1) because the antidumping duty
order on the AFBs in this case has been in effect since 1989, the order is a transition order
pursuant to § 1675(c)(6)(C), and (2) since this review was initiated in 1996 and a request was
made, Commerce had the authority to make a duty absorption inquiry for the seventh POR. See
id. at 54,075.
B. Contentions of the Parties
Koyo, NSK and NTN argue that: (1) Commerce lacked authority under § 1675(a)(4) to
conduct a duty absorption inquiry for the seventh administrative review of the 1989 antidumping
duty order; and (2) even if Commerce possessed the authority to conduct such an inquiry,
Commerce’s methodology for determining duty absorption was contrary to law and, accordingly,
the case should be remanded to Commerce to reconsider its methodology. See Koyo’s Mem.
Supp. Mot. J. Agency R. at 5-12; NSK’s Mem. Supp. Mot. J. Agency R. at 30-34; NTN’s Mem.
Supp. Mot. J. Agency R. at 28-37.
Commerce argues it properly construed subsections (a) and (c) of § 1675 as authorizing it
to make duty absorption inquiries for antidumping duty orders that were issued and published
prior to January 1, 1995. See Def.’s Mem. in Partial Opp’n to Pls.’ Mots. J. Agency R. at 12-20.
4
Although 19 C.F.R. § 351.213(j) is indicative of Commerce’s interpretation of the
URAA, the regulation does not apply here because the administrative review in this case was
initiated on June 20, 1996 pursuant to a request dated May 31, 1996. Commerce’s regulations
that were issued pursuant to the URAA apply only to “administrative reviews initiated on the
basis of requests made on or after the first day of July, 1997.” 19 CFR Part 351 et al.,
Antidumping Duties; Countervailing Duties; Final [R]ule, 62 Fed. Reg. 27,296, 27,416-17 (May
19, 1997).
Consol. Court No. 97-10-01801 Page 14
Commerce also asserts that it devised and applied a reasonable methodology for determining
duty absorption. See id. at 20-28. Torrington generally agrees with Commerce’s contentions.
See Torrington’s Resp. to Pls.’ Mots. J. Agency R. at 11-16.
C. Analysis
In SKF USA Inc. v. United States, 24 CIT __, Slip Op. 00-28 (Mar. 22, 2000), this Court
determined that Commerce lacked statutory authority under 19 U.S.C. § 1675(a)(4) to conduct a
duty absorption inquiry for antidumping duty orders issued prior to the January 1, 1995 effective
date of the URAA. SKF USA, 24 CIT at __, Slip Op. 00-28, at 15-22 (citations omitted). The
Court noted that Congress expressly prescribed in the URAA that § 1675(a)(4) “must be applied
prospectively on or after January 1, 1995 for 19 U.S.C. § 1675 reviews.” Id. at 21 (citing § 291
of the URAA).
Because the duty absorption inquiry, the methodology and the parties’ arguments at issue
in this case are practically identical to those presented in SKF USA, the Court adheres to its
reasoning in SKF USA. The Court, therefore, finds that Commerce did not have the statutory
authority under § 1675(a)(4) to undertake a duty absorption inquiry for the applicable pre-URAA
antidumping duty order in dispute here.
Consol. Court No. 97-10-01801 Page 15
II. Commerce’s Treatment of NSK’s United States
Repacking Expenses as Direct Selling Expenses
A. Background
An antidumping duty is imposed upon imported merchandise when (1) Commerce
determines such merchandise is being dumped, that is, sold or likely to be sold in the United
States at less than fair value (“LTFV”), and (2) the ITC determines that an industry in the United
States is materially injured or is threatened with material injury. See 19 U.S.C. § 1673 (1994); 19
U.S.C. § 1677(34) (1994). To determine in an investigation or an administrative review whether
there is dumping, Commerce compares the price of the imported merchandise in the United
States to the NV for the same or similar merchandise in the home market. See 19 U.S.C. § 1677b
(1994). The price in the United States is calculated using either an export price (“EP”) or CEP.
See 19 U.S.C. § 1677a(a), (b) (1994).
The Statement of Administrative Action5 (“SAA”) accompanying the URAA clarifies that
Commerce will classify the price of a United States sales transaction as an EP if “the first sale to
an unaffiliated purchaser in the United States, or to an unaffiliated purchaser for export to the
United States, is made by the producer or exporter in the home market prior to the date of
5
The Statement of Administrative Action (“SAA”) represents “an authoritative
expression by the Administration concerning its views regarding the interpretation and
application of the Uruguay Round agreements.” H.R. Doc. No. 103-316, at 656 (1994). “[I]t is
the expectation of the Congress that future Administrations will observe and apply the
interpretations and commitments set out in this Statement.” Id.; see also 19 U.S.C. § 3512(d)
(1994) (“The statement of administrative action approved by the Congress . . . shall be regarded
as an authoritative expression by the United States concerning the interpretation and application
of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question
arises concerning such interpretation or application.”).
Consol. Court No. 97-10-01801 Page 16
importation.” H.R. Doc. No. 103-316, at 822 (1994). On the other hand, “[i]f, before or after the
time of importation, the first sale to an unaffiliated person is made by (or for the account of) the
producer or exporter or by a seller in the United States who is affiliated with the producer or
exporter,” then Commerce will classify the price of a United States sales transaction as a CEP.
See id.;19 U.S.C. § 1677a(b); Koenig & Bauer-Albert AG v. United States, 22 CIT __, __, 15 F.
Supp. 2d 834, 850-52 (1998) (discussing when to apply EP or CEP methodology).
Commerce then makes adjustments to the starting price used to establish EP or CEP by
adding: (1) packing costs for shipment to the United States, if not already included in the price;
(2) import duties which have been rebated or not collected due to exportation of the subject
merchandise to the United States; and (3) certain countervailing duties if applicable. See 19
U.S.C. § 1677a(c)(1)(A)-(C); SAA at 823. Also, for both EP and CEP, Commerce will reduce
the starting price by the amount, if any, included in such price that is attributable to: “(1)
transportation and other expenses, including warehouse expenses, incurred in bringing the
subject merchandise from the original place of shipment in the exporting country to the place of
delivery in the United States; and (2) . . . export taxes or other charges imposed by the exporting
country.” Id.; see 19 U.S.C. § 1677a(c)(2)(A), (B).
Moreover, Commerce must reduce the price used to establish CEP by any of the
following amounts associated with economic activities occurring in the United States: (1)
commissions paid in “selling the subject merchandise in the United States”; (2) direct selling
expenses, that is, “expenses that result from, and bear a direct relationship to, the sale, such as
credit expenses, guarantees and warranties”; (3) “any selling expenses that the seller pays on
Consol. Court No. 97-10-01801 Page 17
behalf of the purchaser” (assumptions); (4) indirect selling expenses, that is, any selling expenses
not deducted under any of the first three categories of deductions; (5) certain expenses resulting
from further manufacture or assembly (including additional material and labor) performed on the
merchandise after its importation into the United States; and (6) profit allocated to the expenses
described in categories (1) through (5). 19 U.S.C. § 1677a(d)(1)-(3); see SAA at 823-24.
In this case, NSK delivered the subject merchandise to unaffiliated customers in the
United States from warehouses owned and operated by NSK. See NSK’s Resp. to Sect. C
Questionnaire, Investigation No. A-588-804, Admin. Rev. 5/1/95-4/30/96, at 38 (Sept. 10, 1996)
(Q. 47.0, “U.S. Repacking Cost”). NSK normally ships merchandise in its original containers
from its United States warehouse, however, in some instances, it repacked the merchandise to
accommodate orders for smaller distributors. See id.
For the price of the subject merchandise in the United States, Commerce used EP or CEP,
as appropriate, and calculated such prices “based on the packed [free on board], [cost, insurance,
and freight], or delivered price to unaffiliated purchasers in, or for exportation to, the United
States.” Preliminary Results, 62 Fed. Reg. at 31,569. Commerce also made deductions for: (1)
discounts and rebates; and (2) any movement expenses in accordance with 19 U.S.C. §
1677a(c)(2)(A). See id. In calculating CEP, Commerce made additional adjustments in
accordance with § 1677a(d)(1)-(3) by: (1) “deducting selling expenses associated with economic
activities occurring in the United States, including commissions, direct selling expenses, indirect
selling expenses, and repacking expenses in the United States”; (2) “deduct[ing] the cost of any
further manufacturing and assembly[,]” where appropriate; and (3) “adjust[ing] for profit
Consol. Court No. 97-10-01801 Page 18
allocated to these expenses.” Id. In particular, in adjusting CEP, Commerce deducted NSK’s
United States repacking expenses as direct selling expenses under § 1677a(d)(1)(B), rather than
as moving expenses under § 1677a(c)(2)(A), because it determined that repacking “was
performed on individual products in order to sell the merchandise to the unaffiliated customer in
the United States. Presumably, if a respondent could have sold the merchandise without
repacking it, the respondent would have done so. Thus, it is an expense associated with selling
the merchandise.” Final Results, 62 Fed. Reg. at 54,067.
B. Contentions of the Parties
NSK argues, as it did in the Final Results, see id., that Commerce erred in deducting
NSK’s United States repacking expenses as direct selling expenses pursuant to § 1677a(d)(1)(B),
see NSK’s Mem. Supp. Mot. J. Agency R. at 11, 13. According to NSK, the United States
repacking constitutes an expense incident to bringing the subject merchandise from the original
place of shipment in Japan to the place of deliver in the United States and, therefore, should have
been (1) classified and deducted as expense under § 1677a(c)(2)(A), and (2) excluded from the
pool of selling expenses Commerce uses to determine CEP profit. See id.; 19 U.S.C. §
1677a(d)(3), (f)(1)(B) (calculating CEP profit based on the profit allocated to expenses described
in § 1677a(d)(1)-(2)).
Specifically, NSK claims that § 1677a(c)(2)(A) is not limited to moving expenses, but
includes expenses required for transporting the goods from NSK’s United States warehouses into
the hands of carriers for delivery to United States customers. See NSK’s Reply Mem. Supp. Mot.
Consol. Court No. 97-10-01801 Page 19
J. Agency R. at 2. NSK asserts that the cost of United States repacking is such a §
1677a(c)(2)(A) expense because the goods cannot be transported unless NSK first breaks open
the transpacific shipping packages, selects the specific items ordered and then repacks those
items for shipment to the customer’s United States location. See id. at 3-4. NSK clarifies that
this result does not change simply because the United States repacking may be directly related to
particular sales. See id. at 3. NSK notes that § 1677a(c)(2)(A) does not preclude the deduction
of expenses directly related to a particular sale; rather, the statute includes “any additional costs,
charges, or expenses,” either direct or indirect, incident to bringing the subject merchandise from
Japan to the United States customer. See id. (quoting § 1677a(c)(2)(A)). NSK contends, for
instance, United States inland freight from its United States warehouse to United States
unaffiliated customers, even though directly related to particular sales to such customers,
nevertheless constitutes a § 1677a(c)(2)(A) expense. See id. Thus, NSK asserts that United
States repacking expenses should similarly be treated as § 1677a(c)(2)(A) expenses even though
it may be directly related to particular sales. See id. Finally, NSK claims that United States
repacking does not otherwise meet the definitional criteria of § 1677a(d)(1)(B) direct selling
expenses such as credit expenses, guarantees and warranties. See id. NSK notes that such
expenses assist in selling products, but do not involve transporting goods from Japan to the
United States unaffiliated customer as do United States repacking expenses. See id.; NSK’s
Mem. Supp. Mot. J. Agency R. at 12.
Although agreeing with NSK’s contention that United States inland freight (warehouse to
customer) charges are clearly transportation expenses and thus deductible pursuant to
Consol. Court No. 97-10-01801 Page 20
§ 1677a(c)(2)(A), Commerce responds, as it did in the Final Results, that NSK’s United States
repacking expenses bear no relationship to “moving the merchandise from one point to another,”
as established by the fact that “the merchandise was moved from the exporting country to the
United States prior to repacking.” Def.’s Mem. in Partial Opp’n to Pls.’ Mots. J. Agency R. at
29-30 (quoting Final Results, 62 Fed. Reg. at 54,067). Commerce also contends that §
1677a(d)(1)(B) does not limit direct selling expenses deducted from CEP to credit expenses,
guarantees or warranties; rather, the statute reduces CEP by the amount of any selling expenses
which result, and bear a direct relationship to, selling expenses in the United States. Id. at 30.
Since NSK’s repacking was “performed on individual products in order to sell the merchandise
to the unaffiliated customer in the United States,” Commerce asserts that it properly treated the
repacking expenses as direct selling expenses pursuant to § 1677a(d)(1)(B). Id. (quoting Final
Results, 62 Fed. Reg. at 54,067).
Torrington generally agrees with Commerce’s arguments. See Torrington’s Resp. to Pls.
Mots. J. Agency R. at 8, 40-41. Torrington notes, as it did in the Final Results, that NSK
reported that it normally does not require repacking for its United States sales, but “some
repacking ‘occurred to accommodate smaller distributor orders.’” Id. at 41 (quoting NSK’s
Resp. to Sect. C Questionnaire, Investigation No. A-588-804, Admin. Rev. 5/1/95-4/30/96, at 38
(Sept. 10, 1996) (Q. 47.0, “U.S. Repacking Cost”)). Torrington asserts that since NSK’s
response is consistent with Commerce’s treatment of NSK’s repacking expenses as selling rather
than movement expenses, Commerce properly included NSK’s repacking expenses in its
calculation of CEP profit. See id.
Consol. Court No. 97-10-01801 Page 21
C. Analysis
The Court finds that NSK’s United States repacking expenses were not incident to
bringing the subject merchandise from the original place of shipment in Japan to the place of
delivery in the United States. Rather, such expenses were clearly direct selling expenses.
Direct selling expenses under § 1677a(d)(1)(B) are not limited to credit expenses,
guarantees and warranties, but include “expenses which result from and bear a direct relationship
to the particular sale in question.” SAA at 823 (defining direct selling expenses). In this case,
the particular sales in question concerned orders for smaller distributors. Although NSK reported
that it normally does not perform repacking for United States sales (that is, it usually ships
merchandise from its United States warehouse in its original containers), NSK acknowledged
that it did some repacking to accommodate orders for smaller distributors. See NSK’s Resp. to
Sect. C Questionnaire, Investigation No. A-588-804, Admin. Rev. 5/1/95-4/30/96, at 38 (Sept.
10, 1996) (Q. 47.0, “U.S. Repacking Cost”). The Court finds, therefore, as Commerce did in the
Final Results, that NSK’s repacking is “expense associated with selling the merchandise.” 62
Fed. Reg. at 54,067.
Accordingly, the Court concludes that Commerce properly treated and deducted NSK’s
United States repacking expenses as direct selling expenses pursuant to § 1677a(d)(1)(B) rather
than as transportation or other expenses pursuant to § 1677a(c)(2)(A).
Consol. Court No. 97-10-01801 Page 22
III. Commerce’s Calculation of Profit for Constructed Value
A. Background
For this POR, Commerce “used [constructed value] as the basis for NV when there were
no usable sales of foreign-like product in the comparison market.” Preliminary Results, 62 Fed.
Reg. at 31,571. Commerce calculated the profit component of CV using the statutorily preferred
methodology of 19 U.S.C. § 1677b(e)(2)(A) (1994).6 See Final Results, 62 Fed. Reg. at 54,062.
In applying the “preferred” method for calculating CV profit under § 1677b(e)(2)(A), Commerce
determined that “the use of aggregate data that encompasses all foreign like products under
consideration for NV represents a reasonable interpretation of the statute and results in a practical
measure of profit that we can apply consistently in each case.” Id.
B. Contentions of the Parties
NSK contends, inter alia, that Commerce’s use of aggregate data encompassing all
foreign like products under consideration for NV in calculating CV profit is contrary to §
1677b(e)(2)(A) and the explicit hierarchy established by 19 U.S.C. § 1677(16) (1994) for
selecting the “foreign like product” for the CV profit calculation. See NSK’s Mem. Supp. Mot.
J. Agency R. at 14-17.
6
In calculating constructed value, Commerce is required to calculate an amount for profit
based on “the actual amounts incurred and realized by the specific exporter or producer being
examined in the investigation or review . . . in connection with the production and sale of a
foreign like product [made] in the ordinary course of trade.” 19 U.S.C. § 1677b(e)(2)(A).
Consol. Court No. 97-10-01801 Page 23
Commerce responds, inter alia, that it applied a reasonable interpretation of §
1677b(e)(2)(A) and properly based CV profit for NSK on aggregate profit data of all foreign like
products under consideration for NV. See Def.’s Mem. in Partial Opp’n to Mot. J. Agency R. at
30-43. Torrington generally agrees with Commerce. See Torrington’s Resp. to Pls.’ Mots. J.
Agency R. at 20-22.
C. Analysis
NSK raised this issue in RHP Bearings Ltd. v. United States, 83 F. Supp. 2d 1322 (1999),
which concerned the sixth administrative review of an antidumping duty order on AFBs imported
from the UK. In RHP Bearings, this Court held that Commerce’s CV profit methodology, which
consists of using the aggregate data of all foreign like products under consideration for NV, is
consistent with the antidumping statute. See id. at ___, 83 F. Supp. 2d at 1336. Since NSK’s
arguments and the methodology at issue in this case are practically identical to those presented in
RHP Bearings, the Court adheres to its reasoning in RHP Bearings and, therefore, finds
Commerce’s CV profit methodology to be supported by substantial evidence and in accordance
with law.
IV. Commerce’s Recalculation of NTN’s United States
Credit Expenses for Constructed Export Price Sales
A. Background
In calculating NV, 19 U.S.C. § 1677b(a)(6)(C) directs Commerce to adjust NV to account
for “any differences (or the lack thereof) between the [EP or CEP] and [NV] . . . that is
Consol. Court No. 97-10-01801 Page 24
established to the satisfaction of [Commerce] to be wholly or partly due to . . . differences in the
circumstances of sale” (“COS”) between sales made in the United States and sales made in the
foreign market under consideration. See SAA at 828 (“Additional Adjustments to Normal
Value”). “Such COS adjustments are made when the seller incurs certain costs in its home
market sales that it does not incur when selling to the United States market.” Torrington Co. v.
United States, 156 F.3d 1361, 1363 (Fed. Cir. 1998).
The COS adjustments include adjustments for differences in direct selling expenses such
as credit expenses. See SAA at 828 (“Commerce will . . . employ the [COS] adjustment to adjust
for differences in direct expenses”); Asociacion Colombiana de Exportadores de Flores v.
United States, 22 CIT __, __, 6 F. Supp. 2d 865, 876 (1998) (discussing COS adjustment for
differences in credit costs). A COS adjustment for differences in credit expenses is made to
account for the “producer’s opportunity cost of extending credit to its customers. By allowing
the purchaser to make payment after the shipment date, the producer forgoes the opportunity to
earn interest on an immediate payment.” Mitsubishi Heavy Industries, Ltd. v. United States, 23
CIT __, __, 54 F. Supp. 2d 1183, 1188 (1999). Thus, Commerce uses an imputed credit expense
to reflect “the loss attributable to the time value of money.” Id.; see Asociacion, 22 CIT at __, 6
F. Supp. 2d at 876 (“As part of its calculation of selling expenses for U.S. sales, Commerce
imputes a credit expense on sales to represent the cost (based upon the time value of money) to
the seller of waiting for payment for its sales.”). Commerce’s normally calculates an imputed
credit expense “based only on the cost of financing receivables between shipment date and
payment date.” Mitsubishi, 22 CIT at __, 54 F. Supp. 2d at 1188 (quoting Mitsubishi Heavy
Consol. Court No. 97-10-01801 Page 25
Industries, Ltd. v. United States, 22 CIT __, __, 15 F. Supp. 2d 807, 820 (1998)).
In this case, NTN calculated its United States credit expense on a customer-specific basis.
See Verification Report for NTN Corporation (NTN) for the 1995-96 Administrative Review of
the Antidumping Duty Order on Antifriction Bearings (Other Than Tapered Roller Bearings)
and Parts Thereof From Japan, A-588-804, Proprietary Doc., at 7 (May 3, 1997) (“Credit
Expense”). NTN imputed the cost of credit for sales by determining monthly the average number
of days for which each customer’s payments were outstanding and the short-term interest rate
NTN paid, or would have paid, if it borrowed the same money to finance its accounts receivable.
See id.During the review, Torrington contended that Commerce “should recalculate NTN’s
United States credit expense because . . . reporting credit expense on an average basis may be
distortive in cases where not all [United States] sales are dumped.” Final Results, Fed. Reg. at
54,053. Torrington noted that NTN provided the necessary information on record to recalculate a
credit expense on a “transaction-specific basis.” See id.NTN responded that its credit expense should not be recalculated because Commerce had
accepted NTN’s methodology of reporting a customer-specific average credit expense in all
previous AFB reviews. See id.; see, e.g., Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof From the Federal Republic of Germany, et al.; Final Results of
Antidumping Duty Administrative Review, 56 Fed. Reg. 31,692, 31,724 (July 11, 1991) (cross-
referenced by Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof
Consol. Court No. 97-10-01801 Page 26
From Japan; Final Results of Antidumping Duty Administrative Reviews, 56 Fed. Reg. 31,754,
31,755 (July 11, 1991)) (Commerce using a customer-specific average credit expense for NTN-
Japan during the first review); Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom; Final
Results of Antidumping Duty Administrative Reviews (“sixth administrative review”), 62 Fed.
Reg. 2081, 2101 (Jan. 15, 1997) (Commerce using a customer-specific average credit expense for
NTN during this review).
Commerce agreed with Torrington with regard to CEP sales, finding:
We have data on the record which allows us to calculate transaction-specific
credit expense for CEP sales. Therefore, we have recalculated NTN’s credit
expense using the dates of payment which NTN reported. However, Torrington is
incorrect in asserting that NTN reported transaction-specific payment dates for EP
sales. NTN does not maintain its payment records in a manner which allows it to
provide us with transaction-specific payment dates for EP sales to the United
States . . . . Therefore, in these reviews, as in past reviews, we are allowing NTN
to calculate its U.S. credit expense for EP sales for each customer on the basis of
the average number of days that receivables are outstanding.
Final Results, Fed. Reg. at 54,053.
B. Contentions of the Parties
NTN notes that Commerce accepted NTN’s calculation of credit expenses on a customer-
specific basis for the previous six reviews of the antidumping duty order on AFBs from Japan.
See NTN’s Mem. Supp. Mot. J. Agency R. at 14. NTN contends that since “[t]here have been no
changes in the facts or law which would compel a sudden shift” in Commerce’s practice of
accepting credit expenses reported on a customer-specific basis, Commerce’s “prior decisions
Consol. Court No. 97-10-01801 Page 27
must become law of the case.” Id. In support of this contention, NTN relies on Shikoku
Chemicals Corp. v. United States, 16 CIT 382, 795 F. Supp. 417 (1992), for the proposition that
“[p]rinciples of fairness prevent Commerce from changing its methodology at this late stage . . . .
Adherence to prior methodology is required in some circumstances.” NTN’s Mem. Supp. Mot. J.
Agency R. at 14 (quoting Shikoku, 16 CIT at 388, 795 F. Supp. at 421 (footnote and citations
omitted)). NTN, therefore, requests that the Court remand the issue to Commerce to accept
NTN’s customer-specific average credit expense. See id.Commerce asserts that it did not apply any new process and approach in calculating
NTN’s United States credit expenses. Def.’s Mem. in Partial Opp’n to Mot. J. Agency R. at 45.
Rather, Commerce notes that it has expressed, and continues to maintain, a “preference that
expenses be reported on a transaction-specific basis rather than on an average or allocated basis.”
Id. at 44. However, Commerce claims that when a company’s records do not permit transaction-
specific reporting, it has permitted use of average or allocated expenses as it did with NTN’s
credit expenses for EP sales. Id. Commerce argues that since NTN provided the necessary
information on record which permitted a transaction-specific calculation of NTN’s United States
credit expenses for CEP sales, Commerce properly exercised its preference and recalculated the
expenses on such a basis. See id. at 45. Also, Commerce contends that the principles of fairness
that prevented Commerce from changing its methodology of calculating an expense at a late
stage in the antidumping proceeding in Shikoku are not present in this case. See id. at 46.
Consol. Court No. 97-10-01801 Page 28
Torrington agrees with Commerce, noting that, consistent with the antidumping statute
and regulations, Commerce has a well-established preference for transaction-specific reporting of
expenses. See Torrington’s Resp. to Pls.’ Mots. J. Agency R. at 34. Also, Torrington notes that
Commerce’s questionnaire requesting information indicated a strong preference for reporting
credit expenses on a transaction-specific basis. See id. Since the record contained information
that permitted more precise credit expense calculations, that is, transaction-specific payment
dates for NTN’s CEP sales, Torrington contends that Commerce properly recalculated NTN’s
United States credit expenses on a transaction-specific basis. See id. at 34-35.
C. Analysis
The Court disagrees with NTN that Commerce is now prohibited from using
transaction-specific reporting of NTN’s United States credit expense merely because in the past
six reviews it accepted customer-specific reporting of such expenses. Commerce does not have
to adhere to its customer-specific reporting methodology for calculating credit expenses when a
respondent provides the necessary information on record for calculating such expenses on a more
accurate and preferred basis, that is, a transaction-specific basis. See generally NSK Ltd. v.
United States, 19 CIT 1013, ____, 896 F. Supp. 1263, 1275 (1995) (noting that Commerce does
not have to “adhere to its prior reporting methodology, especially where Commerce is striving for
more accuracy”), rev’d on other grounds, 115 F.3d 965 (1997); see also id. 19 CIT at ____, 896
F. Supp. at 1275 (explaining that “[d]irect selling expenses are incurred with respect to specific
transactions. Credit, for example, is a selling expense which is only incurred when credit is
extended under the terms of sale. Because credit expense is a direct expense, it should be tied to
Consol. Court No. 97-10-01801 Page 29
the transaction for which it was incurred.”).
Further, NTN’s reliance on Shikoku, which it cites for the proposition that Commerce
must adhere to its prior decisions, is misplaced. Shikoku dealt with an attempt by Commerce to
adopt a slightly improved allocation methodology of calculating the home market price packing
adjustment after years of acceptance of another methodology. See Shikoku, 16 CIT at 387, 795 F.
Supp. at 420-21. At issue were the fifth and sixth administrative reviews of certain merchandise
imported from Japan. See id. at 383, 795 F. Supp. at 417-18. The plaintiffs’ dumping margins
for the previous three consecutive periods of review of sales of the contested merchandise were
found to be either de minimis or had a margin of zero. See id. at 383, 795 F. Supp. at 418. In the
fifth and sixth administrative reviews, Commerce altered its allocation methodology for
calculating home market packing expenses, resulting in barely above de minimis margins and,
thereby, Commerce refused a plaintiffs’ request to revoke the outstanding antidumping duty
order covering the merchandise. See id. at 383-84, 795 F. Supp. at 418. Commerce’s new
calculation was based on information which was requested for the first time at verification. See
id. at 387, 795 F. Supp. at 421.
The court in Shikoku found that: (1) “Commerce [had] employed a new process and
approach (both synonyms for ‘methodology’)” in calculating the home market packing expenses
and did not merely apply its standard practice of preferring actual expenses over allocated
expenses; (2) Commerce could not demonstrate that the new allocation methodology was an
improvement; and (3) the evidence on record established that plaintiffs had relied on
Commerce’s old methodology for calculating the home market price packing adjustment by
Consol. Court No. 97-10-01801 Page 30
adjusting their prices in accordance with the methodology that Commerce had consistently
applied in prior reviews. See id. at 386-87, 795 F. Supp. at 420. Under these circumstances, the
court, noting that “[t]he margin resulting from the new approach . . . is barely above de minimis,
determined that it was “simply too late to mandate another three years of administrative reviews
because of a last minute ‘improvement’ in Commerce's methodology” and concluded that
“Commerce did not have adequate reasons for its last minute change in methodology.” Id. at
388, 795 F. Supp. at 422.
In this case, however, the Court agrees with Commerce that it did not apply, or switch to,
any new methodology in calculating NTN’s credit expenses; instead, Commerce merely
exercised its consistent preference for transaction-specific rather than customer-specific reporting
given that NTN had supplied information which permitted a transaction-specific calculation of
credit expenses. Moreover, in distinct contrast to the facts in Shikoku, the Court notes that NTN
was afforded notice of Commerce’s preference for transaction-specific reporting. First,
Commerce explicitly gave notice to NTN in the first and second reviews that it prefers to have
the credit expense reported on a transaction-specific basis. See Antifriction Bearings (Other
Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, et
al.; Final Results of Antidumping Duty Administrative Review, 56 Fed. Reg. 31,692, 31,724 (July
11, 1991) (first administrative review) (“The Department prefers to have credit calculated on a
transaction-by-transaction basis. . . . In the future, in keeping with Department practice, credit
expenses should be reported, at a minimum, on a customer-specific basis. In fact, the
Department’s preference remains sales-specific reporting of this expense.”); Antifriction
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Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al.; Final
Results of Antidumping Duty Administrative Reviews, 57 Fed. Reg. 28,360, 28,405 (June 24,
1992) (second administrative review) (noting that “the Department will not accept credit
expenses not reported, at a minimum, on a customer-specific basis or some reasonable
equivalent. In fact, the Department’s preference remains for sales-specific reporting of this
expense.”). Also, as Torrington points out, Commerce’s questionnaire for this review
specifically reiterated the agency’s preferred methodology of using transaction-specific reporting
for credit expenses. See Request for Information, Antifriction Bearings (Other Than Roller
Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore,
Sweden, Thailand, and the United Kingdom (“Commerce’s Questionnaire”), Sec. C, at C-20
(June 19, 1996) (Case No. A-100-001, Fiche 02-03, Frame 03, Pub. Doc. 2) (“This [credit]
expense should be calculated and reported on a transaction-by-transaction basis using the number
of days between date of shipment to the customer and date of payment.”). Finally, the Court
finds that this case does not present the situation in which, relying upon an old methodology,
NTN had actually adjusted its prices and, except for the change in methodology, it would be
entitled to a revocation of the outstanding antidumping duty order. Therefore, the principles of
fairness that prevented Commerce from changing its methodology in Shikoku are not present
here.
Accordingly, the Court finds that Commerce’s recalculation of NTN’s United States
credit expense on a transaction-specific basis was supported by substantial evidence and in
accordance with law.
Consol. Court No. 97-10-01801 Page 32
V. Commerce’s Denial of Level of Trade Adjustments to NSK and NTN
A. Background
1. Statutory Provisions
Under pre-URAA antidumping law, there were no specific provisions providing for an
adjustment to foreign market value (“FMV”) for any difference in LOT between United States
price (now EP or CEP) and FMV. Commerce, however, promulgated a regulation stating that:
(1) it normally would calculate FMV and United States price based on sales at the same
commercial LOT; and (2) if such sales were insufficient to permit an adequate comparison,
Commerce would calculate FMV based on such or similar sales at the most comparable LOT in
the United States market, making appropriate adjustments for differences affecting price
comparability. See 19 C.F.R. § 353.58 (1994); see generally NEC Home Elecs., Ltd. v. United
States, 54 F.3d 736, 739 (Fed. Cir. 1995) (discussing 19 C.F.R. § 353.58).
The URAA amended the antidumping statute to provide for a specific provision regarding
adjustments to NV for differences in LOTs. Instead of FMV, see 19 U.S.C. § 1677b (1988), the
statute now provides for NV, see URAA § 233(a)(1), 108 Stat. at 4898 (replacing term FMV
with NV), which shall be based on:
the price at which the foreign like product is first sold (or, in the absence of sale,
offered for sale) for consumption in the exporting country, in the usual
commercial quantities and in the ordinary course of trade and, to the extent
practicable, at the same level of trade as the export price or constructed export
price.
19 U.S.C. § 1677b(a)(1)(B)(i) (emphasis added). The statute also provides for a LOT adjustment
to NV under the following conditions:
Consol. Court No. 97-10-01801 Page 33
The price described in [§ 1677b(a)(1)(B), i.e., NV,] shall also be increased or
decreased to make due allowance for any difference (or lack thereof) between the
export price and constructed export price and the price described in [§
1677b(a)(1)(B)] (other than a difference for which allowance is otherwise made
under [§ 1677b(a)]) that is shown to be wholly or partly due to a difference in
level of trade between the export price or constructed export price and normal
value, if the difference in level of trade--
(i) involves the performance of different selling activities; and
(ii) is demonstrated to affect price comparability, based on a pattern of
consistent price differences between sales at different levels of trade in the
country in which normal value is determined.
In a case described in the preceding sentence, the amount of the adjustment shall
be based on the price differences between the two levels of trade in the country in
which normal value is determined.
19 U.S.C. § 1677b(a)(7)(A). In sum, to qualify for a LOT adjustment to NV, a party has the
burden to show that the following two conditions have been satisfied: (1) the difference in LOT
involves the performance of different selling activities; and (2) the difference affects price
comparability. See SAA at 829 (stating that “if a respondent claims [a LOT] adjustment to
decrease normal value, as with all adjustments which benefit a responding firm, the respondent
must demonstrate the appropriateness of such adjustment”); see also NSK Ltd. v. United States,
190 F.3d 1321, 1330 (Fed. Cir. 1999) (noting that a respondent bears the burden of establishing
entitlement to a LOT adjustment).
When the available data does not provide an appropriate basis to grant a LOT adjustment,
but NV is established at a LOT constituting a more advanced stage of distribution than the LOT
of the CEP, the statute ensures a fair comparison by providing for an additional adjustment to NV
known as the “CEP offset.” See 19 U.S.C. § 1677b(a)(7)(B). Specifically, the CEP offset
provides that NV “shall be reduced by the amount of indirect selling expenses incurred in the
country in which normal value is determined on the sales of the foreign like product but not more
Consol. Court No. 97-10-01801 Page 34
than the amount of such expenses for which a deduction is made under [19 U.S.C. §
1766a(d)(1)(D)].” 19 U.S.C. § 1677b(a)(7)(B).
2. Commerce’s LOT Methodology
During this review, and in several prior reviews, Commerce applied the following LOT
methodology. See Final Results, 62 Fed. Reg. at 54,055; Preliminary Results, 62 Fed. Reg. at
31,571-72. In accordance with § 1677b(a)(1)(B)(i), Commerce first calculates NV based on
exporting-country (or third-country) sales, to the extent practicable, at the same LOT as the
United States (EP and CEP) sales. See id. at 31,571. When Commerce is unable to find
comparison sales at the same LOT as the EP or CEP sales, it compares such United States sales
to sales at a different LOT in the comparison (home or third-country) market. See id.
Where the LOT comparison is between NV sales and EP sales (that is, where the first sale
in the United States is to an unaffiliated buyer), Commerce compares the unadjusted, NV starting
price with the starting EP, without making any adjustments to EP as provided for under 19
U.S.C. § 1677a(c). See id. at 31,571.
With respect to the LOT methodology for CEP sales, Commerce first calculates CEP by
making adjustments to its starting price under 19 U.S.C. § 1677a(d), but before making any
adjustments under § 1677a(c). See id. Commerce reasoned that the § 1677a(d) “adjustments are
necessary to arrive at, as the term CEP makes clear, a ‘constructed’ EP,” that is, it is intended to
reflect as closely as possible a price corresponding to an EP between non-affiliated exporters and
Consol. Court No. 97-10-01801 Page 35
importers.7 Final Results, Fed. Reg. at 54,058. Commerce then determines the LOT for the
“adjusted” CEP sales. See Preliminary Results, 62 Fed. Reg. at 31,571.
The next step in its LOT analysis is to determine whether home market sales are at a
different LOT than United States (EP or CEP) sales. See id. In making such a determination,
Commerce examines whether the “home market sales are at different stages in the marketing
process than the U.S. [(EP or CEP)] sales,” that is, Commerce “review[s] and compare[s] the
distribution systems in the home market and U.S. export markets, including selling functions,
class of customer, and the extent and [LOT] of selling expenses for each claimed [LOT].” Id. If
the EP or CEP sales and the NV sales are at a different LOT, and the differences in LOT affects
price comparability, as manifested in a pattern of consistent price differences between the sales
7
In the preliminary results, Commerce explained it reasons for making § 1677a(d), but
not
§ 1677a(c), adjustments to the starting price of CEP as follows:
We calculate the CEP by removing from the first resale to an independent U.S.
customer the expenses under [19 U.S.C. § 1677a(d)] and the profit associated with
these expenses. These expenses represent activities undertaken by the affiliated
importer. As such, they occur after the transaction between the exporter and the
importer for which we construct CEP. Because the expenses deducted under
[§ 1677a(d)] represent selling activities in the United States, the deduction of
these expenses normally yields a different level of trade for the CEP than for the
later resale (which we use for the starting price). Movement charges, duties and
taxes deducted under [§ 1677a(c)] do not represent activities of the affiliated
importer, and we do not remove them to obtain the CEP level of trade.
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, 62 Fed. Reg. 31,566, 31,571 (June 10, 1997).
Consol. Court No. 97-10-01801 Page 36
on which NV is based and comparison-market sales at the equivalent LOT of the export
transaction, Commerce will make a LOT adjustment under § 1677b(a)(7)(A). See id. If there is
no pattern of consistent price differences, no adjustment is permitted. See id. at 31,572. Finally,
for CEP sales, if NV is established at a LOT which constitutes a more advanced stage of
distribution than the LOT of the CEP, and if there is no basis for determining whether differences
in the LOT between NV and CEP affects comparability of their prices, Commerce must make a
CEP offset to NV under § 1677b(a)(7)(B). See id.
3. Denial of LOT Adjustment for CEP Sales
With respect to CEP sales, Commerce found that the same LOT as that of the CEP for
merchandise under review did not exist for any respondent in the home market except for certain
home market sales of respondent NMB/Pelmac. See Final Results, 62 Fed. Reg. at 54,056.
Commerce was unable to “determine whether there was a pattern of consistent price differences
between the [LOTs] based on respondents’ [home market] sales of merchandise under review.”
See id.
In such cases, Commerce looked to alternative methods for calculating LOT adjustments
in accordance with the SAA. See id. In particular, Commerce noted that the SAA states:
“if the information on the same product and company is not available, the
adjustment may also be based on sales of other products by the same company. In
the absence of any sales, including those in recent time periods, to different levels
of trade by the exporter or producer under investigation, Commerce may consider
the selling experience of other producers in the foreign market for the same
product or other products.”
Id. (quoting SAA at 830). Nevertheless, Commerce determined that it would have been
Consol. Court No. 97-10-01801 Page 37
inappropriate to apply the LOT adjustment calculated for NMB/Pelmac to any other respondent,
reasoning that “[b]ecause no respondent reported sales in the same market as NMB/Pelmac (i.e.,
Singapore), we have not used NMB/Pelmac’s data as the basis of a level-of-trade adjustment for
any other respondents.” Id. Consequently, with respect to CEP sales which Commerce was
unable to quantify a LOT adjustment, it granted a CEP offset to respondents, including NTN,
where the home market sales were at a more advanced LOT than the sales to the United States, in
accordance with 19 U.S.C. § 1677b(a)(7)(B). See id.
With respect to NSK, Commerce applied a CEP offset to NV for all of NSK’s CEP sales.
See Antifriction Bearings from Japan–NSK Ltd. (NSK) Preliminary Results Analysis Memo
Seventh Administrative Review 5/1/95-4/30/96 (Mar. 28, 1997) (Case No. A-588-804, Fiche 95,
Frame 57, Pub. Doc. 177, at 59). In reaching this result, Commerce first determined for NSK
that there was one CEP LOT and two home market LOTs, and that the CEP LOT was not the
same as either home market LOT. See id. Commerce could not match CEP sales at the same
LOT in the home market or make a LOT adjustment “because the differences in price between
the CEP [LOT] and the home market [LOTs were] not quantifiable due to the lack of an
equivalent CEP level of trade in the home market.” Id. Commerce concluded that “[b]ecause the
data available do not provide an appropriate basis to determine a [LOT] adjustment and the home
market [LOTs] are at a more advanced stage of distribution than the CEP, [it] made a CEP offset
for all such sales.” Id. Moreover, contrary to NSK’s contentions, Commerce concluded that no
provision of the antidumping statute provides for a “partial” LOT adjustment “between two home
market [LOTs] where neither level is equivalent to the level of the [United States] sale.” Final
Consol. Court No. 97-10-01801 Page 38
Results, 62 Fed. Reg. at 54,057.
B. Contentions of the Parties
NTN contends that Commerce improperly denied a price-based LOT adjustment under
§ 1677b(a)(7)(A) for CEP sales made in the United States market at a LOT different from the
home market sales. See NTN’s Mem. Supp. Mot. J. Agency R. at 17-18. 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. at 18-19. In other words, according to NTN, if Commerce had used the CEP
starting price, that is, without any § 1677a(d) adjustment, to determine CEP LOT, NTN would
have satisfied the statutory requirements for a LOT adjustment for its CEP sales. See id. at 18;
NTN’s Reply Br. at 25-31. In support of its position, NTN cites Borden Inc. v. United States, 22
CIT __, 4 F. Supp. 2d 1221 (1998), where the court determined that Commerce’s methodology of
making a § 1677a(d) adjustment to CEP prior to the LOT analysis contravened the purpose of §
1677b(a)(7)(A). See NTN’s Mem. Supp. Mot. J. Agency R. at 40-42; NTN’s Reply Br. at 28-30
(both citing Borden, 4 F. Supp. 2d at 1241). NTN requests that the Court adopt the holding of
Borden and remand the LOT issue to Commerce to determine NTN’s CEP LOTs prior to any §
1677a(d) deductions and, afterwards, to grant NTN a price-based LOT adjustment for its CEP
sales. See id. at 29-31.
NSK agrees with the manner in which Commerce determined LOT of its CEP for NV
transactions. See NSK’s Mem. Supp. Mot. J. Agency R. at 25. In particular, NSK agrees that
Consol. Court No. 97-10-01801 Page 39
Commerce properly used the CEP as adjusted for § 1677a(d) expenses prior to its LOT analysis.
See id. at 25 n.12 (stating the Borden court “incorrectly ignored the statutory definition of CEP,
which requires certain adjustments to starting price to reach CEP”). NSK, however, argues that
Commerce should have granted it a “partial” LOT adjustment. See id. at 24-29.
NSK first notes that Commerce found two LOTs in the home market, one corresponding
to original equipment manufacturers (“OEM”) sales and the other to after market (“AM”) sales.
See id. at 7. NSK also agrees that when Commerce matched CEP sales to home market OEM
sales, Commerce correctly applied a CEP offset because there was no basis for quantifying a
price-based LOT adjustment for CEP to OEM NV matches. See id. at 26. Further, NSK agrees
that “Commerce correctly concluded there was no record information that would allow
Commerce to quantify the downward price adjustment to adjust fully the AM NV [LOT] to the
CEP [LOT].” Id. Nevertheless, NSK disagrees with Commerce’s decision to apply a CEP offset
when Commerce matched CEP sales to home market AM sales. In these situations, NSK argues
that § 1677b(a)(7)(A) and the SAA direct Commerce to calculate a partial, price-based LOT
adjustment to NV for CEP sales measured by the price differences between OEM and AM LOTs.
See id. at 8, 26-27.
NSK notes that the statute directs Commerce to adjust NV for any difference between
CEP and NV “‘wholly or partly due to a difference in level of trade’” between CEP and NV. Id.
at 26 (quoting § 1677b(a)(7)(A)). NSK also notes that § 1677b(a)(7)(B) indicates a CEP offset
should only be used in the total absence of price-based LOT adjustments. See id. Accordingly,
NSK claims that since there was evidence for quantifying price differences between OEM and
Consol. Court No. 97-10-01801 Page 40
AM LOTs, Commerce’s failure to calculate a price-based LOT adjustment that partly accounted
for such LOT differences violated the plain language of § 1677b(a)(7)(A). See NSK’s Reply
Mem. Supp. Mot. J. Agency R. at 10-11.
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 a 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 Mot. J. Agency R. at 57-61. 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 58. Commerce further asserts that the
Court should not follow Borden because it is not based upon persuasive statutory analysis. See
id. at 61-66. Commerce also claims that it properly denied a LOT adjustment for NTN’s CEP
sales because NTN failed to establish its entitlement to a LOT adjustment. See id. at 5, 66-70.
Commerce also argues that it properly denied a partial LOT adjustment and applied a
CEP offset to NV for all of NSK’s CEP transactions. See id. at 70-77. Contrary to NSK’s
reading of § 1677b(a)(7)(A), Commerce asserts that the statute only provides for a LOT price-
based adjustment to NV based upon price differences in the home market between the CEP LOT
and NV LOT when the differences can be quantified. See id. at 4, 74-76. Commerce claims that
the statute does not authorize a LOT price-based adjustment based upon different LOTs in the
home market when the price difference between the CEP LOT sales and the home market LOT
sales cannot be quantified, as NTN acknowledges in this case. See id.; see also Final Results, 62
Consol. Court No. 97-10-01801 Page 41
Fed. Reg. at 54,057 (explaining that Commerce does not read into § 1677b(a)(7)(A)’s “wholly or
partly” language the authority to make a LOT adjustment based on differences between two
home market LOTs where neither level is equivalent to the level of the United States sale).
Commerce, therefore, asserts that since it reasonably interpreted § 1677b(a)(7)(A), the Court
should sustain its denial of a LOT adjustment and grant of a CEP offset for all of NSK’s CEP
transactions. See Def.’s Mem. in Partial Opp’n to Mot. J. Agency R. at 76-77.
Torrington generally agrees with Commerce’s positions, emphasizing that Commerce:
(1) properly denied a LOT adjustment for NTN’s CEP sales; (2) correctly made § 1677a(d)
adjustments to the starting price of CEP prior to determining a LOT for NTN’s CEP sales; and
(3) reasonably interpreted § 1677b(a)(7)(A) as not providing for a “partial” LOT adjustment as
contended by NSK. See Torrington’s Resp. to Pls.’ Mots. J. Agency R. at 5, 27-29, 41-45.
Torrington further argues that even if § 1677b(a)(7)(A) permits a partial LOT adjustment, NSK
nevertheless failed to submit record evidence to show entitlement to such an adjustment. See id.
at 45. Accordingly, Torrington contends that this Court should not disturb Commerce’s
reasonable interpretation of the statute as applied to the record evidence. See id.
C. Analysis
Under the first step of Chevron, the Court must ascertain whether the antidumping
statute’s plain language speaks to the precise question at issue. Here, 19 U.S.C. § 1677b(a)(7)
specifically provides that to make a LOT adjustment to NV, Commerce must determine if there
is “a difference in level of trade between the export price or constructed export price and the
Consol. Court No. 97-10-01801 Page 42
normal value.” Id. In other words, Commerce must first calculate EP or CEP before performing
its LOT analysis. Title 19, United States Code, § 1677a provides the following guidance for
determining EP and CEP:
(a) Export price
The term “export price” means the price at which the subject merchandise is first
sold (or agreed to be sold) before the date of importation by the producer or
exporter of the subject merchandise outside of the United States to an unaffiliated
purchaser in the United States or to an unaffiliated purchaser for exportation to the
United States, as adjusted under subsection (c) of this section.
(b) Constructed export price
The term “constructed export price” means the price at which the subject
merchandise is first sold (or agreed to be sold) in the United States before or after
the date of importation by or for the account of the producer or exporter of such
merchandise or by a seller affiliated with the producer or exporter, to a purchaser
not affiliated with the producer or exporter, as adjusted under subsections (c) and
(d) of this section.
Id. (emphasis added).8
Thus, the starting price under § 1677a(a) must be “adjusted under subsection (c)” of §
1677a to determine EP. Indeed, § 1677a(c)’s language clearly provides that subsection (c)
adjustments must be made to the starting price used to “establish” EP. See 19 U.S.C. § 1677a(c)
(“The price used to establish export price and constructed export price shall be–(1) increased by .
. . and (2) reduced by”). Similarly, the starting price under § 1677a(b) must be “adjusted under
8
Although § 1677a does not specifically state that it applies to § 1677b(a)(7), the Court
finds that both sections of “Part IV–General Provisions” of “Subtitle IV–Countervailing and
Antidumping Duties” are to be read together. See generally Freytag v. Comm’r, 501 U.S. 868(1991) (expressing “a deep reluctance to interpret a statutory provision so as to render
superfluous other provisions in the same enactment”) (citation and internal quotation marks
omitted).
Consol. Court No. 97-10-01801 Page 43
subsections (c) and (d)” of § 1677a to determine CEP. Also, the language of § 1677a(c) as well
as § 1677a(d) clearly provides that subsection (c) and (d) adjustments must be made to the
starting price used to “establish” CEP. See id.; 19 U.S.C. § 1677a(d) (“For purposes of this
section, the price used to establish constructed export price shall also be reduced by”); see also
AK Steel Corp. v. United States, 203 F.3d 1330, 1333 (Fed. Cir. 2000) (“If CEP methodology is
used, additional deductions are taken from the sales price to arrive at the U.S. Price.”). The
Court, therefore, finds that § 1677a unambiguously requires Commerce to make: (1) subsection
(c) adjustments to § 1677a(a)’s starting price to determine EP; and (2) subsection (c) and (d)
adjustments to § 1677a(b)’s starting price to determine CEP.
Accordingly, since the language of § 1677a is unambiguous in how to calculate EP and
CEP, the Court declines to follow the rationale of Borden. See generally Connecticut Nat’l Bank
v. Germain, 503 U.S. 249, 253-54 (1992) (“[C]ourts must presume that a legislature says in a
statute what it means and means in a statute what it says there. When the words of a statute are
unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete’”) (quoting
Rubin v. United States, 449 U.S. 424, 430 (1981)); VE Holding Corp. v. Johnson Gas Appliance
Co., 917 F.2d 1574, 1579 (Fed. Cir. 1990) (“It is axiomatic that statutory interpretation begins
with the language of the statute. If . . . the language is clear and fits the case, the plain meaning
of the statute will be regarded as conclusive.”) (citations omitted). Any imbalance that §
1677a’s definitions of EP and CEP creates with respect to Commerce’s LOT analysis when
comparing NV with EP or CEP must be rectified by Congress because neither the Court nor
Consol. Court No. 97-10-01801 Page 44
Commerce may rewrite the statute.9
Further, Commerce’s decision to deny NSK a partial, price-based LOT adjustment
measured by price difference between home market OEM and AM sales was in accordance with
law. There is no indication in § 1677b(a)(7)(A) that the pattern of price differences between two
LOTs in the home market, absent a CEP LOT in the home market, justifies a LOT adjustment.
Rather, Commerce’s interpretation of § 1677b(a)(7)(A) as only providing a LOT adjustment
based upon price differences in the home market between the CEP LOT and the NV LOT was
reasonable, especially in light of the existence of the CEP offset to cover situations such as those
at issue here.
9
Indeed, in AK Steel Corp. v. United States, 203 F.3d 1330 (Fed. Cir. 2000), the United
States Court of Appeals for the Federal Circuit opined in a related matter:
Congress’s intent to fully define EP and CEP without any delegation to
Commerce is further evident when the sections are viewed in the context of the
rest of the anti-dumping statute. It is common in the anti-dumping statute for
Congress to leave decisions about how to make dumping calculations to
Commerce’s discretion because of its expertise. . . . Accordingly, if Congress had
intended for Commerce to use its discretion to determine whether the use of CEP
or EP was appropriate, it would have explicitly left that task to the agency as it did
with other calculations in the statute.
When Congress makes such a clear statement as to how categories are to
be defined, neither the agency nor the courts are permitted to substitute their own
definition for that of Congress, regardless of how close the substitute definition
comes to achieving the same result as the statutory definition. The job of revising
statutes is for Congress, not the agency or the courts.
Id. at 1340-41 (footnote omitted).
Consol. Court No. 97-10-01801 Page 45
VI. Commerce’s Recalculation of NTN’s Home Market and
United States Indirect Selling Expenses Without Regard to Level of Trade
A. Background
In its preliminary calculations, Commerce had calculated NTN’s United States indirect
selling expenses without regard to LOTs. See Final Results, 62 Fed. Reg. at 54,055. NTN
argued that Commerce should have recalculated NTN’s United States selling expenses to reflect
its reported indirect selling expense allocations based on LOT. See id. Torrington, in turn,
contended that Commerce should reject NTN’s indirect selling expense allocations based on
LOT because they were distortive and unsubstantiated. See id.
Commerce responded that in the prior four reviews it determined that NTN’s
methodology for allocating its indirect selling expenses based on LOTs did not bear any
relationship to the manner in which NTN incurred these United States selling expenses and its
methodology led to distorted allocations. See Final Results, 62 Fed. Reg. at 54,055. Because
Commerce found during this POR that NTN “did not provide record evidence to substantiate its
claim that its indirect selling expenses are attributable to and vary by its reported levels of trade,”
the agency recalculated NTN’s United States indirect selling expenses to represent such selling
expenses for all United States sales. Id.
Commerce also recalculated NTN’s home market indirect selling expenses without regard
to LOT, but did not state its reasons for such a recalculation. See Antifriction Bearings from
Japan – NTN Bearing Corporation (NTN), Final Results Analysis Mem. for the Seventh
Administrative Review (“Commerce’s Final Results Mem. for NTN”) (Sept. 22, 1997) (Case No.
Consol. Court No. 97-10-01801 Page 46
A-588-804, Fiche 254, Frame 1, Proprietary Doc. 88, at 5).
B. Contentions of the Parties
Although recognizing that in NTN, 19 CIT at __, 905 F. Supp. 1083, 1094-95 (1995), the
Court decided against a LOT adjustment for NTN’s indirect selling expenses because it failed to
quantify the expenses at each LOT, NTN argues that it submitted evidence that establishes it
incurred different selling expenses at different trade levels for this POR. See NTN’s Mem. Supp.
Mot. J. Agency R. at 14-16; NTN’s Reply Br. at 19, 22. NTN also notes that Commerce verified
and found no discrepancies with respect to NTN’s home market selling expenses. See NTN’s
Mem. Supp. Mot. J. Agency R. at 15. In particular, NTN notes that Commerce verified that
NTN undertakes different selling functions at each LOT depending upon the class of customer
involved. See id.NTN also asserts that it is inconsistent for Commerce to find that there were different
LOTs in the United States and home markets for NTN’s subject merchandise while
simultaneously recalculating NTN’s United States indirect selling expenses without regard to
LOT. See id. at 16. NTN notes that Commerce has accepted NTN’s methodology of allocating
its United States indirect selling expenses based on LOT in previous reviews and even stated that
NTN’s “methodology prevents, rather than creates, certain distortions.” NTN’s Reply Br. at 21
(quoting Tapered Roller Bearings, Finished and Unfinished from Japan; Final Results of
Administrative Review, 61 Fed. Reg. 57,629, 57,636 (Nov. 7, 1996)).
Consol. Court No. 97-10-01801 Page 47
Accordingly, NTN argues that Commerce should have accepted its reported home market
and United States indirect selling expenses based on LOT. NTN’s Reply Br. at 19, 22. NTN
requests that the Court remand the matter to Commerce and instruct it to recalculate NTN’s
margins by using NTN’s reported indirect selling expense LOT allocations. See id.Commerce responds that NTN’s allocation methodology failed to reasonably quantify its
United States indirect selling expenses at different trade levels. See Def.’s Mem. in Partial
Opp’n to Pls.’ Mot. J. Agency R. at 48. Commerce asserts that NTN only quantified the
allocation itself and, therefore, the Court should sustain the agency’s recalculation of NTN’s
United States indirect selling expenses. See id.Commerce further argues that the mere fact that upon verification it found no
discrepancies with respect to NTN’s home market indirect selling expenses, does not mean that
NTN established that these expenses were incurred at each LOT. See id. Moreover, Commerce
argues that the fact it may have verified that NTN performed different selling functions
depending upon the class of customer involved is insufficient by itself to justify a LOT
adjustment for NTN’s home market indirect selling expenses because a class of customer does
not necessarily correspond to a LOT. See id. Commerce asserts, however, that since it did not
state on the record its reasons for recalculating NTN’s home market indirect selling expenses, the
Court should remand the issue so the agency may articulate its reasons for the recalculation. See
id.Consol. Court No. 97-10-01801 Page 48
Torrington supports Commerce and argues that NTN has not distinguished the current
review from previous reviews in which the Court affirmed Commerce’s recalculation of NTN’s
indirect selling expenses without regard to LOT. See Torrington’s Resp. to Pls.’ Mots. J. Agency
R. at 6, 29-33.
C. Analysis
The Court disagrees with NTN that it adequately supported its LOT adjustment claim for
its reported United States indirect selling expenses. Although NTN purports to show that it
incurred different selling expenses at different trade levels, a careful review of the record
demonstrates that NTN’s allocation methodology does not reasonably quantify the United States
indirect selling expenses incurred at each LOT to support a LOT adjustment. See NTN, 19 CIT at
___, 905 F. Supp. at 1095; NTN Bearing Corp. of Am. v. United States, 23 CIT __, __, Slip. Op.
99-71, at __ (July 29, 1999). Given that NTN had the burden before Commerce to establish its
entitlement to a LOT adjustment, its failure to provide the requisite evidence compels the Court
to conclude that it has not met its burden of demonstrating that Commerce’s denial of the LOT
adjustment was not supported by substantial evidence and was not in accordance with law. See
NSK, 190 F.3d at 1330.
Accordingly, the Court denies NTN’s remand request for recalculation of its margins
using its reported United States indirect selling expense data. The Court, however, remands this
matter to Commerce to articulate how the record supports its decision in the Final Results to
recalculate NTN’s home market indirect selling expenses without regard to LOT.
Consol. Court No. 97-10-01801 Page 49
VII. Constructed Export Price Profit Calculation without Regard to Level of Trade
A. Background
In calculating CEP, Commerce must reduce the starting price used to establish CEP by
“the profit allocated to expenses described in paragraphs (1) and (2)” of § 1677a(d). 19 U.S.C.
§ 1677a(d)(3). Under 19 U.S.C. § 1677a(f) (1994), the “profit” that will be deducted from this
starting price will be “determined by multiplying the total actual profit by [a] percentage”
calculated “by dividing the total United States expenses by the total expenses.” Id. § 1677a(f)(1),
(2)(A). Section 1677a(f)(2)(B) defines “total United States expenses” as the total expenses
deducted under § 1677a(d)(1) and (2), that is, commissions, direct and indirect selling expenses,
assumptions, and the cost of any further manufacture or assembly in the United States. Section
1677a(f)(2)(C) establishes a tripartite hierarchy of methods for calculating “total expenses.”
First, “total expenses” will be “[t]he expenses incurred with respect to the subject merchandise
sold in the United States and the foreign like product sold in the exporting country” if Commerce
requested such expenses for the purpose of determining NV and CEP. Id. § 1677a(f)(2)(C)(i). If
Commerce did not request these expenses, then “total expenses” will be “[t]he expenses incurred
with respect to the narrowest category of merchandise sold in the United States and the exporting
country which includes the subject merchandise.” Id. § 1677a(f)(2)(C)(ii). If the data necessary
to determine “total expenses” under either of these methods is not available, then “total
expenses” will be “[t]he expenses incurred with respect to the narrowest category of merchandise
sold in all countries which includes the subject merchandise.” Id. § 1677a(f)(2)(C)(iii). “Total
actual profit” is based on whichever category of merchandise is used to calculate “total expenses”
under § 1677a(f)(2)(C). See id. § 1677a(f)(2)(D).
Consol. Court No. 97-10-01801 Page 50
During this POR, NTN argued that profit levels differed by LOT and had an effect on
prices and CEP profit and, therefore, Commerce should calculate CEP profit on a LOT-specific
basis rather than for each class or kind of merchandise. See Final Results, 62 Fed. Reg. at
54,073. NTN reasoned that § 1677a(f)(2)(C) “expresses a preference for CEP profit to be
calculated on the narrowest possible basis which . . . ensures more accurate results.” Id.
Commerce rejected NTN’s argument, concluding that: (1) “neither the statute nor the
SAA requires [Commerce] to calculate CEP profit on bases more specific than the subject
merchandise as a whole”; (2) basing the CEP-profit calculation on a LOT-specific basis “would
add a layer of complexity to an already complicated exercise with no increase in accuracy”; and
(3) “a subdivision of the CEP-profit calculation would be more susceptible to manipulation.” Id.
at 54,072; see id. at 54,073 (Commerce also relied on its more expansive explanation made in the
sixth review of the AFBs at 62 Fed. Reg. 2081, 2125).10
10
In the sixth AFB review, Commerce reasoned as follows:
Neither the statute nor the SAA require us to calculate CEP profit on bases more
specific than the subject merchandise as a whole. Indeed, while we cannot at this
time rule out the possibility that the facts of a particular case may require division
of CEP profit, the statute and SAA, by referring to “the” profit, “total actual
profit,” and “total expenses” imply that we should prefer calculating a single
profit figure. NTN’s suggested approach would also add a layer of complexity to
an already complicated exercise with no guarantee that the result will provide any
increase in accuracy. We need not undertake such a calculation (see Daewoo
Electronics v. International Union, 6 F.3d 1511, 1518-19 (CAFC 1993)). Finally,
subdivision of the CEP-profit calculation would be more susceptible to
manipulation. Congress has specifically warned us to be wary of such
manipulation of the profit allocation (see S. Rep. 103-412, 103d Cong., 2d Sess at
66-67).
(continued...)
Consol. Court No. 97-10-01801 Page 51
B. Contentions of the Parties
NTN contends that Commerce erred by refusing to calculate CEP profit on LOT-specific
basis. See NTN’s Mem. Supp. Mot. J. Agency R. at 26. Highlighting the “narrowest category of
merchandise” language of § 1677a(f)(2)(C)(ii) and (iii), NTN again argues that there is a clear
statutory preference that profit be calculated on the narrowest possible basis. See id. at 26-27.
Moreover, NTN claims that since CV profit is calculated by LOT and matching is by LOT, CEP
profit should be calculated to account for differences in LOT. See id. at 27. NTN asserts that the
mere fact that a calculation is difficult is not a valid reason to sacrifice accuracy. See id. NTN
further asserts that Commerce’s speculation that an adjustment is susceptible to manipulation
provides no grounds for rejecting an adjustment. See id. at 28. NTN, therefore, requests that the
Court remand the issue to Commerce to calculate CEP profit on a LOT-specific basis. See id.
Commerce responds that it properly determined CEP profit without regard to LOT. See
Def.’s Mem. in Partial Opp’n to Mot. J. Agency R. at 93-98. Commerce notes, inter alia, that §
1677a(f) does not refer to LOT, that is, the statute does not require that CEP profit be calculated
on a LOT-specific basis. See id. at 96. Commerce thereby argues that it does not have to
consider a much narrower sub-category of merchandise such as one based on LOT. See id. In
addition, Commerce asserts that even assuming that a narrower basis for the CEP-profit
calculation is warranted in some circumstances, NTN has not provided any factual support for
10
(...continued)
Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France,
Germany, Italy, Japan, Singapore, and the United Kingdom; Final Results of Antidumping Duty
Administrative Reviews, 62 Fed. Reg. 2081, 2125 (Jan. 15, 1997).
Consol. Court No. 97-10-01801 Page 52
such a deviation from Commerce’s standard methodology for calculating CEP profit. See id. at
97. Torrington generally agrees with Commerce’s CEP-profit calculation. See Torrington’s
Resp. to Pls.’ Mots. J. Agency R. at 27-29.
C. Analysis
Section 1677a(f), as Commerce correctly notes, does not make any reference to LOT.
Accordingly, the Court’s duty under Chevron is to review the reasonableness of Commerce’s
statutory interpretation. See IPSCO, 965 F.2d at 1061 (quoting Chevron, 467 U.S. at 844).
Subsections (ii) and (iii) of the § 1677a(f)(C)’s “total expense” definition both refer to
“expenses incurred with respect to the narrowest category of merchandise . . . which includes the
subject merchandise.” The term “subject merchandise” is defined as “the class or kind of
merchandise that is within the scope of an investigation, a review, a suspension agreement, an
order under this subtitle or section 1303 of this title, or a finding under the Antidumping Act,
1921.” 19 U.S.C. § 1677(25) (1994). The statute, therefore, clearly contemplates that, in
general, the “narrowest category” will include the class or kind of merchandise that is within the
scope of an investigation or review.
Accordingly, the Court finds that Commerce reasonably interpreted § 1677a(f) in refusing
to apply a narrower subcategory of merchandise such as one based on LOT. The Court,
moreover, agrees with Commerce’s conclusion that “a subdivision of the CEP-profit calculation
would be more susceptible to manipulation,” a result that Congress specifically warned
Commerce to prevent. Final Results, 62 Fed. Reg. at 54,073 (citing 62 Fed. Reg. at 2125 (Jan.
Consol. Court No. 97-10-01801 Page 53
15, 1997) (citing, in turn, S. Rep. 103-412, 103d Cong., 2d Sess. at 66-67 (1994))). Finally, even
if the Court were to assume that a narrower basis for calculating CEP profit would be justified
under some circumstances, the Court agrees with Commerce that NTN failed to provide adequate
factual support of how the CEP profit calculation was distorted by Commerce’s standard
methodology.
VIII. Commerce’s Denial of an Adjustment to NTN’s United States Indirect Selling
Expenses for Interest Allegedly Incurred in Financing Cash Deposits for
Antidumping Duties
A. Background
During the review, NTN claimed a downward adjustment to its reported United States
indirect selling expenses for imputed interest expenses allegedly incurred in financing cash
deposits for antidumping duties. See Final Results, 62 Fed. Reg. at 54,078. Commerce denied
the adjustment and determined that such an interest offset to NTN’s indirect selling expenses is
inappropriate, whether based on actual interest expenses or an imputed amount allegedly
associated with financing cash deposits. See id. at 54,079. Commerce thereby deducted the
entire amount of NTN’s reported indirect selling expenses, including all interest, from the CEP.
See id.
Commerce noted that 19 U.S.C. § 1677a(d)(1), which provides for the deduction of
certain selling expenses from CEP that were “incurred by or for the account of the producer or
exporter, or the affiliated seller in the United States, in selling the subject merchandise,” does
not precisely define what constitutes a selling expense; instead, Congress has given Commerce
Consol. Court No. 97-10-01801 Page 54
discretionary authority to determine what such an expense encompasses. See id. Commerce
acknowledged that in past reviews of the applicable antidumping duty orders, it determined that
interest expenses incurred in financing antidumping duty cash deposits were not considered
selling expenses and thereby allowed an offsetting, financing-cost adjustment to United States
indirect selling expenses, “mainly to account for the opportunity cost associated with making a
deposit (i.e., the cost of having money unavailable for a period of time).” Preliminary Results,
62 Fed. Reg. at 31,569; see Final Results, 62 Fed. Reg. at 54,079. For this review, however,
Commerce reconsidered its position and concluded that this offsetting financing-cost adjustment
is inappropriate. See id.
Commerce found that while under the statute it may allow a limited exemption from
deductions from United States price for antidumping duty cash deposits and legal fees associated
with participation in an antidumping case, it found no basis for extending this exemption to
interest expenses allegedly incurred in financing the cash deposits. See id. The agency reasoned
that there is a distinction “between business expenses that arise from economic activities in the
United States and business expenses that are direct, inevitable consequences of the dumping
order.” Id. Commerce determined that while cash deposits and legal fees are incurred solely as a
result of the existence of an antidumping order, “[f]inancial expenses allegedly associated with
cash deposits are not a direct, inevitable consequence of an antidumping order.” Id. In
particular, Commerce explained that although it may be true that some importers sometimes
incur a cost if they borrow money in order to pay for cash deposits of antidumping duties, it is a
fundamental principle that:
Consol. Court No. 97-10-01801 Page 55
‘money is fungible. If an importer acquires a loan to cover one operating cost,
that may simply mean that it will not be necessary to borrow money to cover a
different operating cost.’ Companies may choose to meet obligations for cash
deposits in a variety of ways that rely on existing capital resources or that require
raising new resources through debt or equity. For example, companies may
choose to pay deposits by using cash on hand, obtaining loans, increasing sales
revenues, or raising capital through the sale of equity shares. In fact, companies
face these choices every day regarding all their expenses and financial obligations.
There is nothing inevitable about a company having to finance cash deposits and
there is no way for [Commerce] to trace the motivation or use of such funds even
if it were.
Id. (quoting Preliminary Results, 62 Fed. Reg. at 31,569). Commerce also noted that “the
calculation of the dumping margins should not vary depending on whether a party has funds
available to pay cash deposits or requires additional funds in the form of loans.” Preliminary
Results, 62 Fed. Reg. at 31,569.
Moreover, Commerce determined that it should not impute an amount for any interest
costs that would theoretically be associated with financing actual cash deposits of antidumping
duties. Final Results, 62 Fed. Reg. at 54,079. Commerce reasoned that “there is no real
opportunity cost associated with paying cash deposits when the paying of such deposits is a
precondition for doing business in the United States. . . . Companies cannot choose not to pay
cash deposits if they want to import nor can they dictate the terms, conditions, or timing of such
payments.” Id.
Consol. Court No. 97-10-01801 Page 56
B. Contentions of the Parties
NTN claims that Commerce’s rationale for denying NTN’s adjustment for interest
expenses is flawed because irrespective of how a company opts to finance the cash deposits for
antidumping duties, the amount of cash deposited will have to be made up by financing
something else, a result that is a direct inevitable consequence of the antidumping duty order.
See NTN’s Mem. Supp. Mot. J. Agency R. at 37. NTN also asserts that if Commerce were to
allow the interest expenses from cash deposits from prior reviews to affect the dumping margin
calculations of present reviews, a never-ending cycle would follow that would prevent
Commerce from ever revoking the antidumping duty order. See id. at 38.
Further, NTN notes that Commerce has repeatedly taken the position that interest
expenses incurred in financing cash deposits of antidumping duties cannot be properly treated as
indirect selling expenses and, therefore, has allowed for an interest-expense adjustment on
antidumping duty cash deposits. See id. at 38 (citations omitted). NTN asserts that since it has
relied on Commerce’s prior methodology for such interest expenses, the holding of Shikoku
dictates that Commerce would violate “principles of fairness” if it were allowed to change its
methodology for this POR. See NTN’s Reply Br. at 9.
NTN also asserts that this Court has consistently upheld the interest-expense adjustment
to indirect selling expenses when Commerce has granted it and has remanded to Commerce to
allow the adjustment when the agency has denied it. See NTN’s Mem. Supp. Mot. J. Agency R.
at 38-39 (citations omitted). In particular, NTN argues that Federal-Mogul Corp. v. United
States, 20 CIT 1438, 1440-41, 950 F. Supp. 1179, 1182-83 (1996), clearly refutes Commerce’s
Consol. Court No. 97-10-01801 Page 57
decision to deny NTN’s interest-expense adjustment. See NTN’s Mem. Supp. Mot. J. Agency R.
at 39. In particular, NTN notes the court in Federal-Mogul found that there was no support for a
domestic party’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 Elecs. Co. v. United States, 13 CIT 253, 270, 712 F. Supp. 931, 947 (1989)], such
expenses are not necessarily selling expenses.” NTN’s Reply Br. at 8 (quoting Federal-Mogul,
20 CIT at __, 950 F. Supp. at 1183). NTN points out that the court in Federal-Mogul found that,
similar to the Daewoo court’s holding that legal expenses related to antidumping proceedings are
not selling expenses, the interest expenses at issue did not qualify as selling expenses because
they were not related to the sale of merchandise, but to NTN’s participation in the antidumping
proceeding. See id. NTN also notes that the court in Federal-Mogul held 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.’” NTN’s Reply Br. at 8 (quoting Federal-Mogul, 20 CIT
at __, 950 F. Supp. at 1183). Moreover, NTN notes that in NSK Ltd. v. United States, 21 CIT __,
__, 969 F. Supp. 34, 55 (1997), the Court reaffirmed its decision in Federal-Mogul to allow
NTN’s adjustment for interest expenses on antidumping duty cash deposits. See NTN’s Mem.
Supp. Mot. J. Agency R. at 40. NTN contends that since there has been no change in law, the
issue should be remanded to Commerce to allow NTN to offset its United States indirect selling
expenses for imputed interest payments incurred in financing cash deposits. See id. at 12, 40;
NTN’s Reply Br. at 9.
Commerce argues that its decision to deny the offset was within its discretion. See Def.’s
Consol. Court No. 97-10-01801 Page 58
Mem. in Partial Opp’n to Mot. J. Agency R. at 100. Commerce also argues that it may change its
methodology if it presents a reasonable basis for departing from its previous practice. See id. at
100-01. Further, Commerce contends that the interest expenses allegedly incurred with financing
antidumping duty cash deposits are ordinary interest expenses and, therefore, not deductible from
United States indirect selling expenses. See id. at 101-02.
Torrington asserts that Commerce reasonably denied the offset, because allowing United
States selling expenses to be reduced in the manner claimed by NTN encourages dumping. See
Torrington’s Resp. to Pls.’ Mots. J. Agency R. at 18-19. Specifically, Torrington argues that the
more a company dumps its merchandise in the United States, the alleged interest expenses on
antidumping duty cash deposits will become greater. See id. at 19. Torrington contends that as
the interest expense becomes greater, so does the offset to its reported United States indirect
selling expenses and, indeed, if the offset becomes sufficiently large, dumping margins could
disappear over time. See id. Torrington also argues that there is no evidence that NTN actually
obtained loans for the purpose of posting cash deposits and, therefore, there is no factual basis for
the adjustment. See id.Consol. Court No. 97-10-01801 Page 59
C. Analysis
Although NTN correctly points out that interest expenses incurred on financing
antidumping cash deposits are not “selling expenses,” see Federal-Mogul, 20 CIT at __, 950 F.
Supp. at 1183, the Court disagrees that Shikoku, 16 CIT at 386-87, 795 F. Supp. at 420, prevents
Commerce in this review from altering its methodology of making adjustments to United States
indirect selling expenses. This Court has noted that “Commerce may, in certain circumstances,
reasonably change its methodology from review to review.” Timken Co. v. United States, 21 CIT
__, __, 989 F. Supp. 234, 250 (1997) (allowing Commerce to alter its methodology with respect
to interest expenses incurred for financing cash deposits).
Consequently, since 19 U.S.C. § 1677a(d) does not provide clear guidance with respect to
the adjustment, the issue for the Court is whether Commerce’s interpretation of the statute was
reasonable. The Court finds that Commerce reasonably interpreted the statute by concluding that
financing expenses incurred on antidumping duty cash deposits are not an inevitable consequence
of the antidumping duty order and that, with respect to imputed interest costs, there is no real
opportunity cost associated with cash deposits when the paying of such deposits is a precondition
for doing business in the United States. Further, the Court finds that NTN failed to provide any
evidence on record that supported it actually or approximately incurred the alleged interest
expenses on antidumping duty cash deposits. Commerce acted rationally in denying NTN’s
claimed interest-expense adjustment and, therefore, Commerce’s determination is sustained.
Consol. Court No. 97-10-01801 Page 60
IX. Inclusion of Sample Transactions in NTN’s United States Sales Database
A. Background
In NSK Ltd. v. United States, 115 F.3d 965 (Fed. Cir. 1997), four months prior to
Commerce’s publication of the Final Results, the United States Court of Appeals for the Federal
Circuit (“CAFC”) concluded that “the term ‘sold’ . . . requires both a transfer of ownership to an
unrelated party and consideration.” Id. at 975. The CAFC specifically determined that the
samples NSK had given to potential customers at no charge and with no obligation lacked
consideration. See id. Moreover, the CAFC found that “[b]ecause NSK’s [free] sample sales did
not constitute ‘sales,’ they should not have been included in calculating United States price.” Id.During this review, Commerce sent a questionnaire on June 19, 1996 requiring all
respondents to (1) identify any transactions which they claimed involved sample or prototype
sales, and (2) provide the following additional information:
(1) Describe how the order for these sales were communicated.
(2) What documents are available to demonstrate that these sales are samples
or prototypes?
(3) Did the customer in question purchase these particular items before the
date of the claimed sample sale? If so, how many were purchased?
(4) Contrast the prices and quantities involved in these purchases with normal
sales of these items, if any, to other customers and subsequent sales to the
same customers.
(5) What was the ultimate disposition of these bearings? Did title pass to the
recipient of the merchandise? Were the bearings tested and destroyed
during trial application?
Commerce’s Questionnaire, Sec. B (Field No. 49, home or third-country market), Sec. C (Field
No. 55, United States market): Samples and Prototypes, at V-8, V-9. Commerce warned NTN
that (1) if it failed to accurately provide the information requested within the time period,
Consol. Court No. 97-10-01801 Page 61
Commerce would proceed with an appraisement based on the facts available, and (2) if NTN
failed to cooperate with Commerce by not complying to the best of its ability with the request for
information, Commerce would use information adverse to NTN’s interest in conducting its
dumping analysis. Id. (General Instructions).
On September 9, 1996, NTN responded to Commerce’s Questionnaire regarding United
States market sample sales as follows: (1) customers requested sample sales; (2) sample sales
were reported with a code of “S” and other sales as “X”; (3) the sale was entered as a sample and
recorded as a sample on order forms and invoices; (4) due to the quantity of sample sales and
limited time to respond, NTN did not have time to review each model’s purchase history; and (5)
“NTN is the manufacturer of all the merchandise sold as samples.”11 NTN’s Questionnaire
Resp., Sec. C, at C-43 (Case No. A-588-804, Fiche 202, Frame 90, Proprietary Doc. 24). NTN
further responded that certain information concerning sample sales regarding Commerce’s
questions three and four was irrelevant. See id. at C-44.
Commerce sent a supplemental questionnaire to NTN requesting additional information,
however, none of the questions appear to have concerned NTN’s reported sample sales. See
Commerce’s Supplemental Questionnaire (Dec. 2, 1996) (Case No. A-588-804, Fiche 85, Frame
26, Pub. Doc. 136). Similarly, none of NTN’s responses to the supplemental questionnaire
addressed the samples. See NTN’s Supplemental Questionnaire Resp. (Dec. 19, 1996) (Case No.
11
Although NTN’s responses to Commerce’s request for information were bracketed as
proprietary information, the Court notes that the responses, as paraphrased in this opinion, do not
compromise proprietary information. Quoted response number five (5) was not bracketed as
proprietary information.
Consol. Court No. 97-10-01801 Page 62
A-588-804, Fiche 89, Frame 28, Pub. Doc. 149). Commerce later verified that NTN’s records
identified certain sales as samples and that the sale price for a sample was determined by a
salesperson. See Commerce’s Verification Report for NTN (May 8, 1997) (Case No. A-588-804,
Fiche 96, Frame 47, Pub. Doc. 180, at 5).
Subsequently, NTN requested that Commerce exclude its sample sales from its United
States sales database pursuant to NSK, 115 F.3d at 975. Commerce rejected NTN’s request,
noting that although it would follow NSK and “exclude sample transactions, [that is,]
transactions for which a respondent has established that there is either no transfer of ownership or
no consideration, from the dumping [margin] calculations,” it would not automatically exclude
from its dumping margin analysis “any transaction to which a respondent applies the label
‘sample.’” Final Results, 62 Fed. Reg. at 54,069. Rather, Commerce noted that the party in
possession of the needed information has the burden of producing that information for an
exclusion. See id. With respect to NTN’s samples-exclusion claim, Commerce determined as
follows:
[NTN] did not answer our questions regarding the purchase history of parties
receiving samples. [NTN] also did not answer our questions regarding the prices
and quantities involved in sample sales. Rather, [NTN] stated that the
information is irrelevant. The answers to these questions would have aided us in
determining whether [NTN] received a bargained-for exchange from [its United
States] customers. Lacking knowledge of the details of these transactions, we
cannot conclude that [NTN] received no consideration for these alleged samples.
In other words, because [NTN] impeded our investigation of these transactions,
we determined that an adverse inference is appropriate. Therefore, for these final
results, we have included [NTN’s] sample sales in [its United States] sales
database.
Id.
Consol. Court No. 97-10-01801 Page 63
B. Contentions of the Parties
NTN contends that Commerce acted contrary to NSK, 115 F.3d at 975, when it refused to
exclude NTN’s reported zero-price sample sales from its United States sales database. See
NTN’s Mem. Supp. Mot. J. Agency R. at 23. NTN asserts that sample sales, by their very nature,
lack consideration and it in fact received no consideration for such sales. See id. Moreover,
NTN argues that its response questionnaire and related correspondence (1) provided complete
sales data for all United States transactions in its United States sales database, including zero-
priced transactions, and (2) fully answered all of Commerce’s questions regarding its United
States sales. See NTN’s Reply Br. at 11-12. NTN also argues that none of the information
requested by these questions was mentioned by the CAFC in NSK. See id. at 12. NTN requests
that the issue be remanded to Commerce to exclude NTN’s zero-priced sample sales from its
United States sales database. See NTN’s Mem. Supp. Mot. J. Agency R. at 23.
Commerce’s notes that only NTN possesses the information concerning the purchase
history of its alleged samples, including the price and quantity of any prior or subsequent
purchases of these products by the same or other consumers. See Def.’s Mem. in Partial Opp’n
to Mot. J. Agency R. at 86. Commerce asserts that since NTN withheld that information, it failed
to meet its burden to show that it received no consideration for the alleged samples at issue. See
id. Further, Commerce contends that NTN cannot be excused from responding to the agency’s
questions because, in NTN’s view, certain information is irrelevant. See id. Rather, Commerce
claims that it, not NTN, must determine the relevancy of its questions. See id.
Commerce, therefore, contends that since NTN withheld the requested information, and
Consol. Court No. 97-10-01801 Page 64
the record did not contain information that Commerce could use to perform its dumping margin
calculation, Commerce properly relied on “facts otherwise available” to fill in the gaps for its
calculation. See id. (citing 19 U.S.C. § 1677e(a) (1994)). Also, Commerce contends that since
NTN failed to cooperate to its best of its ability with Commerce’s request for information,
Commerce properly determined to apply an adverse inference, that is, the information would
indicate that NTN did receive consideration for its alleged samples. See id. at 86-87 (citing 19
U.S.C. § 1677e(b)). Accordingly, Commerce argues that its decision to include NTN’s alleged
sample sales in NTN’s United States database is based upon substantial evidence and in
accordance with law. See id. at 87.
Torrington agrees with Commerce’s findings, contending that the mere absence of a
monetary price does not necessarily establish a lack of consideration. See Torrington’s Resp. to
Pls.’ Mots. J. Agency R. at 26. Moreover, Torrington asserts that since Commerce did not have
information that NTN’s sample sales were free of broader forms of consideration, Commerce
properly concluded that it did not have the data to accept NTN’s claim that such sales were in
fact without consideration. See id. Torrington additionally asserts that respondents, such as
NTN, who choose not to provide the requested information because they determine that the
requested data is not legally relevant do so at their own peril. See id.
C. Analysis
The antidumping statute mandates that Commerce use “facts otherwise available”
(commonly referred to as “facts available”) if “necessary information is not available on the
Consol. Court No. 97-10-01801 Page 65
record” of an antidumping proceeding. 19 U.S.C. § 1677e(a)(1) (1994). In addition, Commerce
may use facts available where an interested party or any other person: (1) withholds information
that has been requested by Commerce; (2) fails to provide the requested information by the
requested date or in the form and manner requested, subject to 19 U.S.C. § 1677m(c)(1), (e); (3)
significantly impedes an antidumping proceeding; and (4) provides information that cannot be
verified as provided in section 19 U.S.C. § 1677m(i). Id. § 1677e(a)(2)(A)-(D). Section
1677e(a) provides, however, that the use of facts available shall be subject to the limitations set
forth in 19 U.S.C. § 1677m(d) (1994).
Section 1677m, which was enacted as part of the URAA, is “designed to prevent the
unrestrained use of facts available as to a firm which makes its best effort to cooperate with
[Commerce].” Borden, 22 CIT at __, 4 F. Supp. 2d at 1245. Section 1677m(d), entitled
“[d]eficient submissions,” provides that if Commerce determines that a response to a request for
information does not comply with the request, the agency shall promptly inform the person
submitting the response of the deficiency and permit that person an opportunity to remedy or
explain the deficiency. If the remedial response or explanation provided by the party is found to
be “not satisfactory” or untimely, Commerce may, subject to § 1677m(e), disregard “all or part of
the original and subsequent responses” in favor of facts available. Id. § 1677m(d). Section
1677m(e) states that Commerce may not decline to consider information that is submitted by an
interested party and is necessary to the determination but does not meet all of Commerce’s
requirements if: (1) the information is submitted within the applicable deadlines; (2) “the
information can be verified”; (3) “the information is not so incomplete that it cannot serve as a
Consol. Court No. 97-10-01801 Page 66
reliable basis for reaching the applicable determination”; (4) the party establishes that it acted to
the best of its ability in providing the information and meeting the requirements established by
Commerce concerning the information; and (5) Commerce can use the information without
undue difficulties. See Borden, 22 CIT at __, 4 F. Supp. 2d at 1245 (“Subsection (e) may require
use of the respondent’s information notwithstanding that a remedy or explanation is
unsatisfactory.”). Also, § 1677m(c)(1) provides that if an interested party promptly informs
Commerce that it is having difficulties submitting the information in the requested form and
manner, Commerce may modify its request “to the extent necessary to avoid imposing any
unreasonable burden on that party” in providing such information.
Once Commerce determines that use of facts available is warranted, § 1677e(b) permits
Commerce to apply an “adverse inference” if it can find that “an interested party has failed to
cooperate by not acting to the best of its ability to comply with a request for information.” Such
an inference may permit Commerce to rely on information derived from the petition, the final
determination, a previous review or any other information placed on the record. See 19 U.S.C. §
1677e(c) (1994). When Commerce relies on information other than “information obtained in the
course of the investigation or review, [Commerce] shall, to the extent practicable, corroborate the
information from independent sources that are reasonably at [its] disposal.” Id.
However, in order to find that a party “has failed to cooperate by not acting to the best of
its ability,” it is not sufficient for Commerce to merely assert this legal standard as its conclusion
or repeat its finding concerning the need for facts available. See Borden, 22 CIT at __, 4 F. Supp.
2d at 1246 (“Here, the Department did not make the required additional finding that [respondent]
Consol. Court No. 97-10-01801 Page 67
had failed to act to the best of its ability. In essence, it simply repeated its 19 U.S.C. §
1677e(a)(2)(B) finding, using slightly different words . . . .”) (citation omitted); Ferro Union,
Inc. v. United States, 22 CIT __, __, 44 F. Supp. 2d 1310, 1329 (1999) (“Once Commerce has
determined under 19 U.S.C. § 1677e(a) that it may resort to facts available, it must make
additional findings prior to applying 19 U.S.C. § 1677e(b) and drawing an adverse inference.”).
Rather, to be supported by substantial evidence, Commerce must clearly articulate (1) “why it
concluded that a party failed to comply to the bests of its ability prior to applying adverse facts,”
and (2) “why the absence of this information is of significance to the progress of [its]
investigation.” Ferro, 22 CIT at __, 44 F. Supp. 2d at 1331.
Although in the first request for information Commerce warned NTN that any lack of
response will result in use of facts available to fill in gaps in the record, the Final Results do not
clarify (1) whether NTN was given prompt notice of the deficiency regarding the sample sales
data and given the opportunity to remedy the deficiency, or (2) even if NTN provided a remedial
response, whether Commerce determined that such a response was not satisfactory or untimely,
as required by 19 U.S.C. § 1677m(d). A review of the record, as noted, indicates that
Commerce’s supplemental questionnaire did not request additional information regarding NTN’s
reported sample sales. See Commerce’s Supplemental Questionnaire (Dec. 2, 1996). Although
Commerce asserted in its brief that NTN met the requirements of 19 U.S.C. § 1677e(a)(2)(A)-
(C), see Def.’s Mem. in Partial Opp’n to Mot. J. Agency R. at 82-87, the Court cannot defer to
this post hoc rationalization as a basis to uphold Commerce’s decision to use facts available
because such a decision must be sustained, if at all, on the same basis as the reasoning articulated
Consol. Court No. 97-10-01801 Page 68
in the final determination itself, see Hoogovens Staal BV v. United States, 24 CIT __, __, 86 F.
Supp. 2d 1317, 1331 (Jan. 21, 2000) (holding that “a reviewing court must evaluate the validity
of an agency’s decision on the basis of the reasoning presented in the decision itself. An agency
determination ‘cannot be upheld merely because findings might have been made and
considerations disclosed which would justify its order . . . .’”) (quoting SEC v. Chenery Corp.,
318 U.S. 80, 94 (1943)); see also Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168-69 (1962) (“The courts may not accept . . . counsel’s post hoc rationalizations for agency
action; . . . an agency’s discretionary order [must] be upheld, if at all, on the same basis
articulated in the order by the agency itself.”).12 Further, even if the Court were to assume that
Commerce met § 1677e(a)’s criteria for using facts available, the Court notes that Commerce did
not articulate in the Final Results whether it made any “additional findings” that NTN had failed
to act to the best of its ability before applying an adverse inference under § 1677e(b).
The Court, however, agrees with Commerce’s finding that it should not automatically
exclude from its dumping margin analysis “any transaction to which a respondent applies the
label ‘sample.’” Final Results, 62 Fed. Reg. at 54,069. In determining whether to exclude
12
Indeed, the Supreme Court has opined:
If the administrative action is to be tested by the basis upon which it purports to
rest, that basis must be set forth with such clarity as to be understandable. It will
not do for a court to be compelled to guess at the theory underlying the agency’s
action; nor can a court be expected to chisel that which must be precise from what
the agency has left vague and indecisive. In other words, ‘We must know what a
decision means before the duty becomes ours to say whether it is right or wrong.’
SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (quoting United States v. Chicago, M., St. P.
& P.R. Co., 294 U.S. 499 (1935)).
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samples from the sales database, as Commerce correctly noted, it must “examine the information
on record to determine whether the recipients of the samples have undertaken actual obligations
to purchase AFBs from the provider of the free bearings or whether the recipients remained free
to purchase bearings of their own accord.” Id. This approach is clearly consistent with the
CAFC’s decision in NSK, 115 F.3d at 973-75, where the appellate court determined that a foreign
manufacturer’s AFB “samples given to potential customers at no charge lacked consideration
[because] . . . there is no evidence that potential customers had any obligation regarding samples
received from [the manufacturer]. These potential customers were free to transact with [the
manufacturer] based solely on their whim.” See id. at 975 (noting that “[w]hen the promisor may
choose to perform based solely on whim, then the promise will not serve as consideration”)
(citing 3 Williston on Contracts, § 7:7 at 18-19 (4th ed. 1992))). The CAFC explained that
“[c]onsideration generally requires a bargain-for exchange,” see id. (citing 3 Williston on
Contracts, § 7:2 at 89 (4th ed. 1992)), and also noted that a “sale” is defined as “ ‘the act of
selling: a contract transferring the absolute or general ownership of property from one person to
another for a price (as a sum of money or any other consideration).” See id. at 974 (quoting
Webster’s Third New International Dictionary 2003 (1986)). In others words, as Commerce
accurately noted in the Final Results, consideration, or “price,” is not necessarily limited to a
“sum of money.” See 62 Fed. Reg. at 54,069 (stating that Commerce would not limit its “review
of consideration to the payment of a monetary price for the sample products”).
Accordingly, although NTN argues that none of Commerce’s questions in its first request
for information were mentioned by the CAFC in NSK, 115 F.3d at 973-76, the Court finds that
Consol. Court No. 97-10-01801 Page 70
Commerce may formulate questions that reasonably ascertain whether there was a lack of
consideration or transfer of ownership. Also, the Court notes that a respondent still maintains the
burden of showing that there is either no consideration or no transfer of ownership to an
unrelated party in order to exclude the sample sales from the dumping margin analysis. See
generally Timken Co. v. United States, 11 CIT 786, 804, 673 F. Supp. 495, 513 (1997) (stating
that Commerce “acts reasonably in placing the burden of establishing adjustments on a
respondent that seeks the adjustments and that has access to the necessary information”).
Nevertheless, in light of the considerable uncertainty left by the Final Results, the Court
cannot conclude that Commerce’s use of adverse facts available was warranted under 19 U.S.C.
§ 1677e(a). The Court, therefore, remands the issue to Commerce to clarify how it complied
with the statutory framework of 19 U.S.C. §§ 1677e, 1677m for using facts available and
applying an adverse inference. If Commerce determines that it conformed with the statutory
framework, Commerce must include NTN sample sales in its United States sales database
because the Court notes that NTN specifically admitted it “sold” rather than gave away samples.
See NTN’s Questionnaire Resp., Sec. C, at C-43 (“NTN is the manufacturer of all the
merchandise sold as samples.”). If, however, in the remand results Commerce determines it did
not adhere to all of the statutory prerequisite conditions, Commerce must give NTN the
opportunity to remedy or explain any deficiency regarding its alleged sample sales.
X. Commerce’s Adjustments to NTN’s Cost of Production and Constructed Value
A. Background
Consol. Court No. 97-10-01801 Page 71
During the POR, NTN purchased certain components from an affiliated supplier that were
used in the manufacture of ball and cylindrical roller bearings. See Commerce’s Final Results
Mem. for NTN at 5. NTN’s affiliated producer submitted COP data for certain components sold
to NTN. See Affiliated Producer’s Letter to Commerce (Sept. 9, 1996) (Case No. A-588-804,
Fiche 208, Frame 1, Proprietary Doc. 25). Commerce found that “[s]ome of the components
NTN purchased from . . . [the] affiliated supplier . . . were transferred at prices below the cost of
production.” Commerce’s Final Results Mem. for NTN at 5. Because Commerce determined
that the record was unclear as to which bearing models NTN used the purchased components in,
Commerce was unable to adjust NTN’s COP and CV data on a model-specific basis. See id.
Therefore, using “facts otherwise available,” Commerce calculated the average percentage
difference between the transfer price and the cost for the components sold to NTN by its
affiliated supplier. See id. at 5-6. Commerce then adjusted NTN’s COP and CV upward by this
average percentage difference. See id. at 6; Final Results, 62 Fed. Reg. at 54,065.
Consol. Court No. 97-10-01801 Page 72
B. Contentions of the Parties
NTN argues Commerce’s adjustment to NTN’s COP and CV data was contrary to law
because Commerce resorted to facts available and made an adverse inference without giving
NTN the opportunity to provide the data Commerce determined was lacking from the record.
See NTN’s Mem. Supp. Mot. J. Agency R. at 19. Specifically, NTN asserts that Commerce
should not have resorted to facts available because: (1) NTN fully responded to Commerce’s
requests for information and that Commerce at no time indicated that NTN’s data was unclear or
insufficient, that is, Commerce never asked for clarification of the information NTN submitted,
see id. at 20; and (2) citing subsections (1) and (2) of 19 U.S.C. § 1677e(a), “NTN did not
withhold information, fail to provide information by the deadline or in the manner requested, or
impede the investigation in any manner,” id. at 21. NTN also notes that Commerce may only
make an adverse inference when a “party has failed to cooperate by not acting to the best of its
ability.” Id. at 22 (quoting § 1677e(b)). NTN, therefore, asserts that since Commerce never
asked for any additional information or clarification of the data which was submitted concerning
the affiliated supplier’s inputs, Commerce is prohibited from making an adverse inference and
applying it to all of NTN’s COP and CV data. See id. Accordingly, NTN requests that the Court
remand the issue and order Commerce to use NTN’s submitted COP and CV data. See NTN’s
Reply Br. at 25.
Commerce concedes in its brief that NTN did not meet any of the elements under
paragraph (2) of the facts available provision, § 1677e(a), that is, “NTN did not withhold
information, fail to provide information by the deadline specified or in the manner requested, or
Consol. Court No. 97-10-01801 Page 73
impede the investigation in any manner.” See Def.’s Mem. in Partial Opp’n to Mot. J. Agency R.
at 79. Nevertheless, Commerce notes that NTN “overlook[ed] paragraph ‘(1)’ of facts available
provision, which mandates the use of facts otherwise available “‘if the necessary information is
not available on the record.’” Id. (quoting § 1677e(a)(1)). Commerce argues that when it found
the necessary information was not available on the record, it decided to use other information on
the record to reflect the fact that NTN purchased certain components from an affiliated supplier
that were transferred at prices below the COP. See id. at 81. Commerce explained that “the
other information on record allowed [it] to adjust NTN’s COP and CV without having to reject
NTN’s reported information in its entirety.” See id.
Further, Commerce asserts that it did not “determine to make an adverse inference in
choosing what information to use as facts available.” Id. Rather, Commerce reasoned “given
that the necessary information was not available on record, [it] used other information to address
the problem with NTN’s supplier’s transfer prices.” Id. Commerce, therefore, maintains that
“[u]nder these circumstances, [its] use of facts available was reasonable.” Id.
Torrington argues that Commerce properly adjusted all of NTN’s COP and CV data for
ball and cylindrical roller bearings because “NTN failed to make the record clear at its own
peril.” Torrington’s Resp. to Pls.’ Mots. J. Agency R. at 37. Torrington notes that this Court
emphasized in Neuweg Fertigung GmbH v. United States, 16 CIT 724, 797 F. Supp. 1020(1992), that “‘[u]ltimately it is the respondent’s responsibility to make sure that [Commerce]
understands, and correctly uses, any information provided by the respondent.” Id. at 36 (quoting
Neuweg, 16 CIT at 728, 797 F. Supp. at 1024). Torrington asserts that since NTN “knew what
Consol. Court No. 97-10-01801 Page 74
models reported incorporated the purchased components” from the affiliated supplier, and since
NTN “knew that Commerce would compare transfer prices and actual costs as to such
components, . . . the failure to identify those models incorporating the purchased components
must be charged to NTN, not to Commerce.” Id.NTN replies that the facts of this case are distinguishable from Neuweg because
Commerce in that case gave the respondent notice of Commerce’s problems with the
respondent’s submitted information at a disclosure conference soon after the publication of the
preliminary results. See NTN’s Reply Br. at 23 (citing Neuweg, 16 CIT at 728, 797 F. Supp. at
1024). Here, NTN notes that Commerce did not provide any notice and, therefore, it is
inequitable to punish NTN for Commerce’s failure to request information. See id.C. Analysis
Although Commerce relies on paragraph (1), not (2), of § 1677e(a) for using facts
available, the section requires that Commerce meet the requirements of § 1677m(d) before
resorting to facts available. Section 1677m(d), as noted earlier, states that if Commerce
determines that a response to a request for information does not comply with the request,
Commerce shall promptly inform the respondent submitting the response of the deficiency and
permit the respondent an opportunity to remedy or explain the deficiency.
Consol. Court No. 97-10-01801 Page 75
In this case, the Court finds that the Final Results do not clearly articulate whether NTN
was provided with such notice and the opportunity to provide a remedial response regarding
which ball and cylindrical roller bearing models the purchased components were used in by
NTN. Since there appears to be a lack of § 1677m(d) notice, the Court agrees with NTN that this
case is distinguishable from Neuweg. Accordingly, the Court remands the issue to Commerce to
clarify whether NTN was provided with notice and opportunity to respond pursuant to §
1677m(d).
XI. Commerce’s Inclusion of NTN’s Alleged Sample Sales and Sales
with Abnormally High Profits in the Normal Value Calculation
A. Background
Commerce is required to base its NV calculation upon “the price at which the foreign like
product is first sold . . . in the ordinary course of trade.” 19 U.S.C. § 1677b(a)(1)(B)(i). NTN
contended during the review that Commerce, in calculating NV, should have excluded sales with
“abnormally high” profits because they were outside of the ordinary course of trade. See Final
Results, 62 Fed. Reg. at 54,065. Commerce rejected NTN’s contention, explaining as follows:
[N]o respondent has adequately shown that profits earned were aberrational or
abnormal or otherwise outside the ordinary course of trade. As in past reviews,
the fact that a respondent identified sales as having abnormally high profits does
not necessarily render such sales outside the ordinary course of trade. . . . [I]n
order to determine that profits are abnormally high, there must be certain unique
or unusual characteristics related to the sales in question. Verification of the
designation of certain sales as having abnormally high profits merely proves that
the respondent identified sales as having abnormally high profits in its own
records. This evidence does not
Consol. Court No. 97-10-01801 Page 76
indicate that such sales were made outside the ordinary course of trade for
purposes of calculating NV in these reviews.
See id. at 54,065-66.
B. Contentions of the Parties
In response, NTN argues that Commerce’s failure to exclude NTN’s sales with unusually
high profits from the NV calculation, despite NTN providing sufficient evidence on record
indicating that these sales were outside of the ordinary course of trade, was inconsistent with 19
U.S.C. § 1677b(a)(1)(B), the SAA and the proposed regulation 19 C.F.R. § 351.102(b) (61 Fed.
Reg. 7308, 7353 (Feb. 27, 1996)), all which clearly instruct Commerce to make such an
exclusion. See NTN’s Mem. Supp. Mot. J. Agency R. at 10-11, 23-26; NTN’s Reply Br. at 12-
17. NTN also argues, for the first time on appeal, that Commerce erred in including its home
market sample sales in the calculation of NV because facts on the record support that the sales
were made outside of the ordinary course of trade. See NTN’s Mem. Supp. Mot. J. Agency R. at
25-26. NTN, therefore, requests that its sales with abnormally high profits and samples sales be
disregarded in the calculation of NV. See id. at 26.
Commerce properly exercised its discretion in rejecting NTN’s argument that Commerce
must disregard sales with abnormally high profits as sales not in the ordinary course of trade
because “NTN failed to adequately show that profits earned were ‘aberrational or abnormal or
otherwise outside of the ordinary course of trade.’ ” Def.’s Mem. in Partial Opp’n to Mot. J.
Agency R. at 91 (quoting Final Results, 62 Fed. Reg. at 54,065). Commerce further asserts that
the Court should reject NTN’s request to exclude sample sales from the NV calculation because
Consol. Court No. 97-10-01801 Page 77
(1) NTN failed to raise the claim at the administrative level; or (2) in the alternative, if NTN is
not required to exhaust its administrative remedies, NTN failed to demonstrate that the samples
were not sold in the ordinary course of trade. See id. at 92-93.
Torrington claims that Commerce properly rejected NTN’s request to exclude alleged
highly profitable sales and sample sales from the NV calculation because (1) a higher profit on a
particular sale does not establish that a sale is outside the ordinary course of trade, and (2) NTN
failed to show that the contested sales were not in ordinary course of trade. See Torrington’s
Resp. to Pls.’ Mots. J. Agency R. at 27.
C. Analysis
The term “ordinary course of trade” is defined as:
the conditions and practices which, for a reasonable period of time prior to the
exportation of the subject merchandise, have been normal in the trade under
consideration with respect to merchandise of the same class or kind. [Commerce]
shall consider the following transactions, among others, to be outside the ordinary
course of trade:
(A) Sales disregarded under section 1677b(b)(1) of this title.
(B) Transactions disregarded under section 1677b(f)(2) of this title.
19 U.S.C. § 1677(15) (1994) (emphasis added). Although § 1677b(b)(1)’s below-cost sales and
§ 1677b(f)(2)’s affiliated party transactions are clearly outside the ordinary course of trade, the
“among others” language of § 1677(15) clearly indicates that transactions in subsection (A) and
(B) are not inclusive. Indeed, the SAA provides that aside from §§ 1677b(b)(1), (f)(2)
transactions:
Commerce may consider other types of sales or transactions to be outside the
ordinary course of trade when such sales or transactions have characteristics that
Consol. Court No. 97-10-01801 Page 78
are not ordinary as compared to sales or transactions generally made in the same
market. Examples of such sales or transactions include merchandise produced
according to unusual product specifications, merchandise sold at aberrational
prices, or merchandise sold pursuant to unusual terms of sale. As under existing
law, amended section 771(15) does not establish an exhaustive list, but the
Administration intends that Commerce will interpret section 771(15) in a manner
which will avoid basing normal value on sales which are extraordinary for the
market in question, particularly when the use of such sales would lead to irrational
or unrepresentative results.
SAA at 834. The SAA also provides that “[o]ther examples of sales that Commerce could
consider to be outside the ordinary course of trade include sales of off-quality merchandise, sales
to related parties at non-arm’s length prices, and sales with abnormally high profits.” Id. at 839-
40. Thus, Commerce has the discretion to interpret § 1677(15) to determine which sales are
outside the ordinary course of trade, such as sales involving aberrational prices and abnormally
high profits. See Mitsubishi Heavy Indus., Ltd. v. United States, 22 CIT __, __, 15 F. Supp. 2d
807, 830 (1998) (“Congress granted Commerce discretion to decide under what circumstances
highly profitable sales would be considered to be outside of the ordinary course of trade.”); cf.
Koenig & Bauer-Albert AG v. United States, 22 CIT, __, __, 15 F. Supp. 2d 834, 850 n.8 (1998)
(noting that although Commerce has the discretion to decide under what circumstances highly
profitable sales are outside of the ordinary course of trade, “Commerce may not impose this
requirement arbitrarily, however, nor may Commerce impose impossible burdens of proof on
claimants.”) (citing NEC Home Elecs. v. United States, 54 F.3d 736, 745 (Fed. Cir. 1995)
(holding that burden imposed to prove a LOT adjustment was unreasonable because claimant
could, under no practical circumstances, meet the burden))).
Consol. Court No. 97-10-01801 Page 79
In this case, the Court finds Commerce’s decision to require additional evidence
demonstrating that sales with higher profits were outside of the ordinary course of trade before
excluding such sales from the NV calculation was a reasonable exercise of its discretion. The
record reflects that NTN did not provide any evidence that supports its claim that the disputed
sales had abnormally high profits, that is, they were extraordinary for the market in question.
With respect to excluding NTN’s home market sample sales from the NV calculation, although,
contrary to Commerce’s assertion, NTN raised the issue below, see NTN’s Case Br. at 2-3 (July
1, 1997) (Case No. A-588-804, Fiche 99, Frame 1, Pub. Doc. 204), the Court finds NTN
similarly failed to show that the sales were outside the ordinary course of trade.
XII. Commerce’s Exclusion of Certain NTN Home Market Sales
to Affiliated Parties from the Normal Value Calculation
A. Background
During the POR, NTN made home market sales to affiliated and unaffiliated parties. In
its preliminary analysis, Commerce conducted an arm’s length-test to determine whether NTN’s
affiliated party sales could be used for purposes of calculating NV. See Commerce’s Preliminary
Results Analysis Mem. for NTN (June 2, 1997) (Case No. A-588-804, Fiche 97, Frame 48, Pub.
Doc. 184); see generally SAA at 827 (“Commerce will . . . ignore sales to affiliated parties which
cannot be demonstrated to be at arm’s length prices for purposes of calculating normal value.”).
Specifically, Commerce compared NTN’s home market selling prices to affiliated and
unaffiliated parties for all classes and kinds of merchandise. See id. Commerce, in accordance
with 19 U.S.C. § 1677b(f)(2), “disregarded sales of bearings to certain affiliated parties for
Consol. Court No. 97-10-01801 Page 80
certain classes or kinds of merchandise because [it] found that the net price of these products,
when sold to these affiliated parties, was, on average, less than when these products were sold to
unaffiliated parties.” Id. Commerce stated that it “used sales to affiliated customers only where
[it] determined that such sales were at arm’s-length prices, i.e., at prices comparable to prices at
which the firm sold identical merchandise to unrelated customers.” Preliminary Results, 62 Fed.
Reg. at 31,570.
B. Contentions of the Parties
NTN argues that Commerce erred in applying the arm’s-length test when it refused to use
certain NTN sales to affiliated parties in the NV calculation. See NTN’s Mem. Supp. Mot. J.
Agency R. at 42. NTN asserts that Commerce should have examined factors other than price in
determining whether affiliated and unaffiliated sales were comparable before disregarding NTN’s
affiliated party sales from the NV calculation. See id. at 42-45; NTN’s Reply Br. at 33-35.
Commerce argues that pursuant to 19 C.F.R. § 353.38(c)(1)(ii), (c)(2) (1995), if NTN
disagreed with the agency’s use of prices in determining whether to use or disregard sales to
affiliated customers, NTN was obligated to raise the issue in its case brief to the Final Results.
See Def.’s Mem. in Partial Opp’n to Mot. J. Agency R. at 103. Commerce, therefore, asserts that
the Court must reject NTN’s untimely argument or, in the alternative, sustain Commerce’s arm’s-
length test because it is supported by substantial evidence and in accordance with law. See id. at
104. Torrington generally agrees with Commerce’s determination. See Torrington’s Resp. to
Pls.’ Mots. J. Agency R. at 37-39.
Consol. Court No. 97-10-01801 Page 81
In response, NTN asserts, inter alia, that it would have been futile to raise the issue of
looking at factors other than price when determining price comparability at the administrative
level because Commerce refused to look at additional factors in prior administrative reviews.
See NTN’s Reply Br. at 35-36.
C. Analysis
It is a cardinal principle of administrative law that a court may not consider a party’s
arguments that were not made before the agency. See United States v. L.A. Tucker Truck Line,
344 U.S. 33, 36-37 (1952) (“We have recognized ... that orderly procedure and good
administration require that objections to the proceedings of an administrative agency be made
while it has opportunity for correction in order to raise issues reviewable by the courts.”).
However, a well-recognized exception to the exhaustion of administrative remedies rule is that
exhaustion is not required where the efforts of the party would be futile. See Hormel v.
Helvering, 312 U.S. 552, 557 (1941); United Black Fund, Inc. v. Hampton, 352 F. Supp. 898,
902 (D.D.C. 1972) (“[I]t is well settled that an action should not be dismissed for failure to
exhaust administrative remedies when an attempt to gain the desired relief from the agency in
question would obviously be a futile act.”). Also, 28 U.S.C. § 2637(d) grants the Court
discretion in deciding when requiring exhaustion is appropriate. See United States v. Priority
Prods., Inc., 793 F.2d 296, 300 (Fed. Cir. 1986).
Consol. Court No. 97-10-01801 Page 82
Here, the Court declines to address NTN’s arm’s-length test issue. Even if it might have
been futile for NTN to raise the issue at the administrative level since Commerce refused in the
fifth administrative review to consider looking at factors other than price, see Antifriction
Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany,
Italy, Japan, Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty
Administrative Reviews and Partial Termination of Administrative Reviews, 61 Fed. Reg. 66,472,
66,511 (Dec. 17, 1996) (stating that “regulations direct us to focus on price”), the Court has
repeatedly rejected the argument that Commerce should consider additional factors, that is,
factors other than price, when determining whether sales prices to affiliated and unaffiliated
parties were comparable. The Court also finds no basis under the circumstances of this case to
depart from its prior holdings in NSK Ltd. v. United States, 21 CIT __, __, 969 F. Supp. 34, 55
(1997) (rejecting “the contention that Commerce should consider other factors (i.e., factors other
than price) in determining comparability”), and NTN Bearing Corp. of Amer. v. United States,
905 F. Supp. 1083, 1099 (1995) (disagreeing “with NTN that Commerce’s arm[’]s-length test is
flawed because Commerce did not take into account certain factors proposed by NTN”).
Accordingly, Commerce’s application of its arm’s-length test is affirmed.
Consol. Court No. 97-10-01801 Page 83
XIII. Commerce’s Treatment of Koyo’s Home Market Billing Adjustments and
NTN’s Home Market Discounts as Direct Price Adjustments to Normal Value
A. Background
In the Final Results, Commerce accepted claims discounts, rebates and post-sale price
adjustments (“PSPAs”) as direct adjustments to price used for calculating NV if it found that the
respondent, in reporting these adjustments, “acted to the best of its ability and that its reporting
methodology was not unreasonably distortive.” 62 Fed. Reg. at 54,049. Commerce explained
that, although it prefers that respondents report the price adjustments on a transaction-specific
basis, it recognizes that this is not always feasible, especially given the extremely large number
of transactions involved in AFB reviews. See id. at 54,049. Citing 19 U.S.C. § 1677e,
Commerce stated that “it is inappropriate to reject allocations that are not unreasonably distortive
in favor of facts otherwise available where a fully cooperating respondent is unable to report the
information in a more specific manner.” Id. Commerce, therefore, accepted price adjustments
“when it was not feasible for a respondent to report the adjustment on a more specific basis,
provided that the allocation method the respondent used [did] not cause unreasonable
inaccuracies or distortions.” Id.
Further, in applying this standard, Commerce stated that it did not “reject[] a respondent’s
allocation method solely because the allocation includes adjustments granted on [out-of-scope]
merchandise.” Id. Commerce, however, noted that “such allocations are not acceptable where [it
had] reason to believe that respondents did not grant such adjustments in proportionate amounts
with respect to sales of out-of-scope and in-scope merchandise.” Id. To determine whether the
allocations were granted in proportionate amounts, Commerce “examin[ed] the extent to which
Consol. Court No. 97-10-01801 Page 84
the out-of-scope merchandise included in the allocation pool [was] different from the in-scope
merchandise in terms of value, physical characteristics, and the manner in which it is sold,”
noting that “[s]ignificant differences in such areas may increase the likelihood that respondents
did not grant price adjustments in proportionate amounts with respect to sales of in-scope and
out-of-scope merchandise.” Id. Commerce explained that “[w]hile [it] scrutinize[d] any such
differences carefully between in-scope and out-of-scope sales in terms of their potential for
distorting reported per-unit adjustments on the sales involved in [its] analysis,” it recognized that
“it would not be reasonable to require that respondents submit sale-specific adjustment data on
out-of-scope merchandise in order to prove that there is no possibility for distortion.” Id.
Commerce concluded that “[s]uch a requirement would defeat the purpose of permitting the use
of reasonable allocations by a respondent that has cooperated to the best of its ability.” Id.
In this case, Commerce treated certain home market discounts reported by NTN and
certain home market PSPAs reported by Koyo as direct adjustments to NV, as opposed to direct
or indirect selling expenses. See id. at 54,049-51. With respect to NTN, it reported its discounts
separate for each customer and for each class or kind of merchandise. See NTN’s Resp. Br.
Attach. 2 (NTN’s Secs. B-D Questionnaire Resp. (Sept. 9, 1996), at B-20). Commerce verified
NTN’s reported home market discounts and found that NTN granted the discounts on a product-
and customer-specific basis, that is, the total discount granted was calculated “‘by product for
each customer.’” Final Results, 62 Fed. Reg. at 54,050. Based on NTN’s submitted response, as
well as documents reviewed at verification, Commerce concluded that NTN’s home market
prices should be adjusted to reflect NTN’s home market discounts. See id.
Consol. Court No. 97-10-01801 Page 85
Commerce also reviewed Koyo’s reported home market PSPAs. See id. at 54,050-51.
Koyo reported that it granted PSPAs, which it referred to as “billing adjustments,” in four
situations: (1) when it had to adjust a preliminary price because it began selling a product to a
customer before negotiating a final price agreement with the customer; (2) when it renegotiated
existing price agreements; (3) when it negotiated lump-sum adjustments with certain customers
without reference to model-specific selling prices; and (4) other adjustments negotiated on a
case-by-case basis. See Koyo’s Response to Commerce’s Questionnaire, Sec. B, at Field 16.1
(Sept. 10, 1996) (Case No. A-588-804, Fiche 66, Frame 1, Pub. Doc. 110, at 15-17). Koyo
placed these billing adjustments in one of two categories. See id. at 16-17.
First, Koyo designated as “billing adjustment one” (BILADJ1H) those adjustments that
were allocated over only in-scope merchandise and were “granted on a model-specific basis, [but
were] calculated and reported . . . on a customer-specific basis (i.e., on the basis of all AFB sales
to that customer) because of the tremendous volume of reported sales.” See Koyo’s Response to
Commerce’s Supplemental Questionnaire, Sec. A-D (Jan. 13, 1997) (Case No. A-588-804, Fiche
92, Frame 19, Pub. Doc. 157, at 11). Koyo designated as “billing adjustment two” (BILADJ2H)
those adjustments which were allocated over in-scope and out-of-scope merchandise and were
either granted on: (1) a lump-sum basis which it negotiated with its customers without reference
to model-specific selling prices, or (2) a model-specific basis, but which Koyo reported on a
customer-specific basis because no computerized model-specific information was maintained.
See Koyo’s Response to Commerce’s Questionnaire at 17. Billing adjustment two was reported
by determining, on a customer-specific basis, the proportion of such adjustments attributable to
Consol. Court No. 97-10-01801 Page 86
in-scope merchandise. See id. In other words, the only difference between billing adjustment
one and billing adjustment two, both of which involved customer-specific allocations, was that
billing adjustment one was free from out-of-scope merchandise, while billing adjustment two
relied on an allocation to remove the effect of any out-of-scope merchandise.
In accepting Koyo’s reporting methodology for billing adjustment one, Commerce
determined that “while Koyo has paper records of the adjustment, it is not feasible for Koyo to
retrieve the information electronically or to allocate this adjustment more specifically, given the
large volume of transactions involved, the level of detail contained in Koyo’s normal accounting
records, and the time constraints imposed by the statutory deadlines under which all parties must
operate.” Final Results, 62 Fed. Reg. at 54,051. Similarly, Commerce accepted Koyo’s
reporting methodology for billing adjustment two after concluding that: (1) “Koyo acted to the
best of its ability in reporting this information using customer-specific allocations”; (2) “it was
not feasible for Koyo to report this adjustment on a more specific basis” given that “Koyo’s
records do not readily identify a discrete group of sales to which each billing adjustment pertains
and the extremely large number of POR sales Koyo made”; and (3) “Koyo’s allocation
methodology . . . was not distortive.” Id.
Consol. Court No. 97-10-01801 Page 87
B. Contentions of the Parties
Torrington contends that Commerce’s acceptance of Koyo’s reported home market billing
adjustments as direct price adjustments was unlawful and not supported by substantial evidence
because such adjustments must be reported on a sales-specific basis. See Torrington’s Mem.
Supp. Mot. J. Agency R. at 2. In particular, Torrington argues that Koyo’s reported methodology
of allocating adjustments on a customer-specific basis contravene’s the CAFC’s rationale in
Torrington Co. v. United States (“Torrington CAFC”), 82 F.3d 1039 (Fed. Cir. 1996), because
Koyo failed to show that all of its reported home market billing adjustments were directly related
to relevant sales. See id. at 2. Torrington notes that Torrington CAFC followed prior CAFC
cases to define “direct adjustments to price [as] ... expenses which vary with the quantity sold . . .
or that are related to a particular sale.” Id. at 10 (internal quotations and citations omitted).
Torrington also notes that Commerce had properly followed the CAFC’s approach in the fifth
administrative review, whereby the agency stated that the proper approach is to accept claims for
price adjustments “‘as direct adjustments to price if actual amounts are reported for each
transaction [and] ... [accept] price adjustments based on allocations [only if] ... they are based on
a fixed and constant percentage of sales price.’” Id. at 11 (quoting Antifriction Bearings (Other
Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan,
Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative
Reviews and Partial Termination of Administrative Reviews (“fifth administrative review”), 61
Fed. Reg. 66,472, 66,498 (Dec. 17, 1996)).
Torrington claims that in this review as well as the sixth review, however, Commerce
Consol. Court No. 97-10-01801 Page 88
“abandoned” the approach taken by the CAFC. See id. at 12. As a result, Commerce unlawfully
redefined what the CAFC considered “direct” by adopting a new methodology. See id.According to Torrington, Commerce’s new methodology allowed Koyo to report allocated
PSPAs if Koyo acted to the best of its ability in view of its record keeping system and the results
were not unreasonably distortive. See id. Relying on Lechmere, Inc. v. Nat’l Labor Relations
Bd., 502 U.S. 527 (1992), Torrington maintains that Commerce’s new methodology is unlawful
since it ignores the well-settled definition of “direct” adjustments to price enunciated by the
CAFC. See id. at 12-13. Torrington further asserts that although the fifth administrative review
and Torrington CAFC pre-date the URAA amendments, “[t]he new statute retains the distinction
between ‘direct’ and ‘indirect’ expenses and Congress gave no indication that changes in
meanings were ever intended.” Id. at 13-14 (citation omitted). Torrington, therefore, argues that
since Commerce’s new methodology must conform with precedent, this Court should review
Koyo’s home market PSPAs by applying the rationale of Torrington CAFC. See Torrington’s
Mem. Supp. Mot. J. Agency R. at 15.
Torrington recognizes that this Court approved the new methodology used by Commerce
in Timken Co. v. United States (“Timken”), 22 CIT __, 16 F. Supp. 2d 1102 (1998), on the
grounds that “the new [methodology] allowed a more flexible response, reflecting the ‘more
lenient statutory instructions of [19 U.S.C. § 1677m(e)].’” Id. at 16 (quoting Timken, 16 F. Supp.
2d at 1108). Nevertheless, Torrington maintains, inter alia, that the Court should reconsider its
position in Timken because § 1677m(e), while reflecting Congress’s intent for Commerce to be
more flexible regarding certain essential information submitted by respondents, “does not affect
Consol. Court No. 97-10-01801 Page 89
Commerce’s fundamental policy, consistently approved by the courts, of putting the burden of
proof with the party who intends to benefit from the claim made.” Id. As such, Torrington
maintains that even if Commerce’s new, but erroneous methodology was applied to the instant
case, Koyo did not carry its burden of proof in establishing entitlement to any advantageous
adjustment. See id. at 18. Specifically, Torrington claims that Koyo failed to demonstrate that its
reported home market billing adjustment allocations were not distortive and that it acted to the
best of its ability (that is, made its best efforts) in reporting the claimed adjustment amounts. See
id. at 18-19. Torrington notes, for instance, Commerce in the Final Results “failed to directly
address whether Koyo ‘acted to the best of its ability’” in reporting billing adjustment one. Id. at
19.
Torrington additionally asserts that Koyo did not provide substantial evidence to prove
that it used its best efforts to make adjustments on as specific a basis as possible. See id. at 20.
Rather, Torrington notes that Commerce merely excused more precise reporting by Koyo on the
grounds that it was not feasible for Koyo to allocate the adjustment on a more specific basis
because of the large number of sales at issue, the level of detail involved in Koyo’s accounting
records, and the time constraints imposed by statutory deadlines. See id. at 20-21 (citing Final
Results, 62 Fed. Reg. at 54,051). Torrington also contends that Koyo’s argument of infeasibility
in undertaking more specific reporting is invalid because Koyo could have modified its
accounting system in order to arrive at more precise data. See id. at 21. Moreover, Torrington
asserts that aside from what was or was not possible, Koyo did not provide evidence on record to
demonstrate that it was infeasible or inconvenient to provide more specific reporting and,
Consol. Court No. 97-10-01801 Page 90
therefore, there is “nothing objective for [the] Court to review other than Commerce’s conclusory
declarations.” Id. Torrington claims that, in fact, (1) with respect to billing adjustment one, the
record evidence confirms that Koyo could have reported amounts more precisely, and (2) with
respect to billing adjustment two, the record evidence suggests that Koyo could have reported
amounts more precisely for at least some of the adjustments. See id. (citing Final Results, 62
Fed. Reg. at 54,051).
Torrington further argues that Commerce’s determination to accept certain home market
discounts reported by NTN was not in accordance with law and not supported by substantial
evidence. See id. at 3, 22-25. Specifically, Torrington claims that, as it did in the Final Results,
see 62 Fed. Reg. at 54,050, based on two documents Commerce obtained at verification which
related to the negotiation of certain discounts, NTN’s reported discounts were not granted on a
product- and customer-specific basis and suggests that they were likely applied to non-subject
merchandise, see Torrington’s Mem. Supp. Mot. J. Agency R. at 22-23. In addition, Torrington
asserts that the record evidence demonstrates that discounts at issue were not discounts at all but,
rather, were claims for rebates for which, Torrington contends, did not meet Commerce’s
standard for such an adjustment. See id. at 24-25. As such, Torrington claims that “the record
and Commerce’s description of the discounts were at odds, and Commerce has not articulated a
rational connection between the facts found and the choice made.” Torrington’s Reply Br. at 7
(citation and internal quotation marks omitted).
Torrington, therefore, requests that this Court reverse Commerce’s determination with
respect to each subject adjustment and remand the case to Commerce with instructions to: (1)
Consol. Court No. 97-10-01801 Page 91
disallow Koyo’s downward home market billing adjustments, but allow all upward home market
billing adjustments in calculating NV; and (2) deny NTN’s claimed adjustment for home market
discounts in calculating NV. See Reply Br. at 9-10.
Commerce responds that Torrington erred in relying on Torrington CAFC because the
case does not stand for the proposition that direct price adjustments may only be accepted when
they are reported on a transaction-specific basis. See Def.’s Mem. in Partial Opp’n to Mot. J.
Agency R. at 108. Rather, the Torrington CAFC court “merely overturned a prior Commerce
practice . . . of treating certain allocated price adjustments as indirect selling expenses,” id. at 109
(citing Torrington CAFC, 82 F.3d at 1047-51), and “did not address the propriety of the
allocations methods that respondents used in reporting the price adjustments in question,” see id.
at 109-10 (quoting Final Results, 62 Fed. Reg. at 54,050). Also, contrary to Torrington’s
assertion regarding Commerce’s position during the fifth administrative review, Commerce did
not consider Torrington CAFC as addressing proper allocation methodologies; rather,
Commerce, only viewed Torrington CAFC as holding that “Commerce could not treat indirect
selling expenses as improperly allocated price adjustments.” See id. at 111. Indeed, Commerce
notes that this Court interpreted Torrington CAFC in NSK Ltd. v. United States, 969 F. Supp. 34,
43 (1997), in a manner consistent with Commerce’s reading of the case in this review. See id. at
112. Commerce also notes that pursuant to its new methodology, it does not consider price
adjustments to be any type of selling expense, either direct or indirect, and, therefore,
Torrington’s argument is not only without support, but also inapposite to Torrington CAFC. See
id. Moreover, Commerce asserts that this Court in Timken approved of Commerce’s modified
Consol. Court No. 97-10-01801 Page 92
methodology of accepting respondents claims for discounts, rebates and other billing adjustments
as direct price adjustments, where this Court found the methodology to be consistent with
requisites of 19 U.S.C. § 1677m(e). See id. at 112-13 (citing Timken, 16 F. Supp. 2d at 1108).
Commerce also argues that its treatment of Koyo’s reported home market billing
adjustments and NTN’s reported home market discounts as direct adjustments was supported by
substantial record evidence and otherwise in accordance with law because it is consistent with
Timken, that is, Commerce: (1) “used its acquired knowledge of the respondents’ computer
system and databases to conclude that they could not provide the information in the preferred
form,” and (2) “scrutinized the respondent’s data before concluding that the data were reliable,”
and (3) found “that the adjustments on scope and non-scope merchandise did not result in
unreasonable distortions.” Id. at 114.
In particular, with respect to Koyo’s reported home market billing adjustment one,
Commerce asserts that (1) given Koyo’s record-keeping practices, (2) “in light of the fact Koyo
limited its allocation to specific customers,” and (3) that Koyo “avoided allocating adjustments
granted on out-of-scope merchandise,” Commerce’s properly accepted the adjustment. Id. at
115-16. Commerce also argues it properly accepted billing adjustment two. See id. at 117. With
regard to the first type of billing adjustment two, the lump-sum payment to customers,
Commerce maintains that since these payments were not earned on particular sales, the best
allocation for these payments was over all merchandise sold to the particular customer in
question. See id. Commerce claims that “[t]he fact some of this merchandise was non-scope
merchandise [had] no effect on the final amount apportioned to in-scope merchandise.” Id. With
Consol. Court No. 97-10-01801 Page 93
respect to the small portion of billing adjustment two consisting of model-specific adjustment for
which Koyo had no computerized records, Commerce contends: (1) “in past reviews [it] has
determined at verification that Koyo’s records do not permit more accurate reporting”; and (2)
“Koyo’s in-scope merchandise was sufficiently similar to its other merchandise that there was
little chance of distortion due to allocations across subject merchandise.” Id. at 117.
Commerce also notes that in the sixth administrative review of AFBs, it verified the
manner in which Koyo kept its normal records and confirmed Koyo’s reporting for its billing
adjustments was reasonable in light of its records. See id. at 119 (citing 62 Fed. Reg. at 2096).
Commerce asserts that this is not an admission that Koyo could not accurately reports its prices
generally, rather it merely was a finding that Koyo normally aggregated by customer certain price
adjustments. See id. Further, Commerce claims that “the fact that Koyo could produce the
supporting documentation which lay behind its aggregated record-keeping does not establish that
it was unreasonable for Commerce to accept the allocated methodology used by Koyo in its
records as maintained in the normal course of business.” Id. Rather, Commerce maintains that,
in reviewing reported allocations, it looks not only to what is theoretically possible, but what is
consistent with § 1677m(e) and it also considers what is reasonable in light of the number of
transactions involved and the possibility of unreasonable distortions. See id. Commerce argues
that since Koyo’s allocation for this POR was made on a customer-specific basis and did not
raise a serious danger of distortion, it acted reasonably in accepting Koyo’s billing adjustments.
See id. at 119-20.
With respect to NTN’s reported home market discounts, Commerce asserts that, contrary
Consol. Court No. 97-10-01801 Page 94
to Torrington’s contention, it verified that these discounts were granted on a customer-specific
and product-specific basis, that is, across all sales to a customer of a particular class or kind of
merchandise. See id. at 120. Thus, Commerce contends that “NTN properly attributed these
discounts to the sales on which they were earned.” Id. Commerce also claims, inter alia, that
Torrington incorrectly characterizes NTN’s billing adjustment at issue as a rebate. See id. at 123-
25. Commerce notes that under its prior standard for determining whether to grant “an
adjustment for a rebate, Commerce required evidence that the rebate ‘program’ was known to
both parties at the time of the sale.” Id. at 125 (citation omitted). Commerce, however, notes
that NTN’s reported home market discounts “do not constitute a rebate as that term was
previously used by Commerce” because “[t]hey are class-or-kind specific price reductions
negotiated with a specific customer” and, therefore, Torrington’s contention based on
Commerce’s prior rebate standard should be disregarded. Id. Accordingly, Commerce asserts
that since Commerce’s treatment of NTN’s home market discounts is supported by substantial
evidence and is otherwise in accordance with law, it should be sustained. See id.
Koyo supports Commerce’s position, asserting that its acceptance of home market billing
adjustments one and two was in accordance with law and supported by substantial evidence. See
Koyo’s Mem. Supp. Mot. J. Agency R. at 2-3, 8-20. First, Koyo notes that pre-URAA judicial
precedent does not prohibit Commerce’s treatment of Koyo’s billing adjustments as direct price
adjustments, that is, the Court recognized in Timken that Commerce may reevaluate its treatment
of PSPAs. See id. at 8-9 (citing Timken, 16 F. Supp. 2d at 1107). Thus, Koyo contends that
“Torrington’s argument that pre-URAA judicial precedent prohibits [Commerce] treatment of
Consol. Court No. 97-10-01801 Page 95
PSPAs as price adjustments rather than expenses in the underlying review is no longer relevant.”
Id. at 9.
Koyo also maintains that Commerce’s change to a more liberalized reporting
methodology is consistent with the URAA and Commerce’s new antidumping regulations. See
id. at 10-14. Koyo asserts that, as the Court recognized in Timken, Commerce’s decision to
allow Koyo to treat its PSPAs as adjustments to price and allocate them is permissible under 19
U.S.C. § 1677m(e)’s more liberalized reporting instructions, which direct Commerce not to reject
data submissions once Commerce concludes that certain criteria are satisfied. See id. at 10-12.
Koyo further asserts that Commerce’s treatment of allocated billing adjustments is also
consistent with the new antidumping regulation, 19 C.F.R. § 351.401(g)(1) (effective July 1,
1997), which permits Commerce to “‘consider allocated expenses and price adjustments when
transaction-specific reporting is not feasible.’” Id. at 13 (quoting 19 C.F.R. § 351.401(g)(1)).
Koyo recognizes that although the regulations are not binding for this POR, it is nonetheless
informative as to Commerce’s practice concerning the acceptance of allocated price adjustments
under the URAA, which govern this review. See id. at 13, n. 5.
Moreover, contrary to Torrington’s assertion that even under Commerce’s new reporting
methodology Koyo’s PSPAs should be denied, Koyo argues that it acted to the best of its ability
in reporting billing adjustments one and two and that the reporting methodologies it employed
were non-distortive. See id. at 15. With respect to billing adjustment one, Koyo asserts that
given that the adjustment was allocated over only scope merchandise, and that the pool of scope
merchandise was similar in terms of value, physical characteristics, and the manner in which it is
Consol. Court No. 97-10-01801 Page 96
sold, there is no reason to believe the adjustment resulted in unreasonable distortions. See id. at
16. Koyo also asserts that since this adjustment was allocated “over only scope merchandise, it
would satisfy even the rigorous standard for allocation of an expense that this Court articulated
under pre-URAA antidumping law.” Id. Koyo further maintains that although Commerce did
not use the specific language of “acted to the best of its ability” in the Final Results for billing
adjustment one, Commerce found that it was not “feasible” for Koyo to either retrieve or allocate
this adjustment more specifically and, thus, Commerce basically found that Koyo acted to the
best of its ability. See id. at 17-18. With regard to billing adjustment two, Koyo claims that
although the adjustment was allocated over scope and non-scope merchandise, the adjustment
was proper because (1) it reported the adjustment in this manner because its records did not allow
it to report it on a more specific basis, and (2) the allocation methodology for this adjustment did
not have a distortive effect. See id. at 18-20.
Koyo further argues that in accepting billing adjustments one and two, Commerce did
not, as Torrington maintains, shift the burden to the respondent seeking the price adjustment. See
id. at 15. Rather, Koyo placed information on record, and based on that data, Commerce
accepted Koyo’s reported PSPAs, that is, Koyo met its burden of demonstrating eligibility for the
adjustment according to the new reporting criteria approved under Timken. See id.NTN asserts that Commerce correctly accepted its reported home market discounts as
direct price adjustments to NV. See NTN’s Resp. Br. at 4. First, NTN noted that, contrary to
Torrington’s allegation that two documents reviewed at verification contradict Commerce’s
determination that NTN’s reported adjustments were discounts, Commerce based its finding of
Consol. Court No. 97-10-01801 Page 97
no discrepancies in NTN’s reported discounts after careful review and verification of numerous
documents, not just the two documents. See id. at 6. NTN further notes that the record
unequivocally establishes that its claimed adjustments were: (1) discounts, rather than rebates, as
Torrington alleges; (2) reported and granted on a customer- and product-specific basis; and (3)
applied to the subject merchandise. See id. at 6-8. In sum, NTN contends that Torrington’s
allegations amount to nothing more than mere speculations and, therefore, Commerce’s
allowance of NTN’s reported home market discounts should be affirmed. See id.NSK asserts that although Torrington claimed in its USCIT R. 56.2 motion that
Commerce erred by allowing allocated discounts and PSPAs in home market price calculations,
Torrington limited its argument to Koyo’s reported home market billing adjustments and NTN’s
reported home market discounts. See NSK’s Opp’n to Torrington’s Mot. J. Agency R. at 2.
NSK, therefore, argues that Torrington abandoned any challenge to Commerce’s decision to
accept NSK’s home market discounts or PSPAs and, thereby, the Court should sustain
Commerce’s decision to apply such adjustments to NV. See id.Consol. Court No. 97-10-01801 Page 98
C. Analysis
The Court disagrees with Torrington that Torrington CAFC dictates that direct price
adjustments may only be accepted when they are reported on a transaction-specific basis. Rather,
as Commerce correctly noted, the Court notes that Torrington CAFC “merely overturned a prior
Commerce practice . . . of treating certain allocated price adjustments as indirect selling
expenses,” 82 F.3d at 1047-51, and “did not address the propriety of the allocation methods that
respondents used in reporting the price adjustments in question,” Final Results, 62 Fed. Reg. at
54,050. The Court further notes that Torrington CAFC was decided under pre-URAA law, that
is, it did not take into consideration the new statutory guidelines of 19 U.S.C. § 1677m(e).
Moreover, the Court acknowledged in Timken that although (1) “Commerce treated rebates and
billing adjustments as selling expenses in preceding reviews under pre-URAA law, and (2)
“previously decided that such adjustments are selling expenses and, therefore, should not be
treated in as adjustments to price,” the Court nevertheless determined that this did not “preclude
Commerce’s change in policy or this Court’s reconsideration of it stance in light of the newly-
amended antidumping statute [(that is, 19 U.S.C. § 1677m(e))].” 16 F. Supp. 2d at 1107.
Indeed, the Court approved in Timken Commerce’s modified methodology of accepting
claims for discounts, rebates and other billing adjustments as direct price adjustments to NV, see
id. at 1107-08, and reaffirmed its decision in Torrington Co. v. United States (“Torrington CIT”),
24 CIT __, Slip Op. 00-44 (Apr. 19, 2000). Specifically, in Timken, the Court reasoned that
“[n]either the pre-URAA nor the newly-amended statutory language imposes standards
establishing the circumstances under which Commerce is to grant or deny adjustments to NV for
Consol. Court No. 97-10-01801 Page 99
PSPAs.” 16 F. Supp. 2d at 1108 (citing Torrington CAFC, 82 F.3d at 1048). The Court,
however, noted that 19 U.S.C. § 1677m(e) “specifically directs that Commerce shall not decline
to consider an interested party’s submitted information if that information is necessary to the
determination but does not meet all of Commerce’s established requirements, if the [statute’s]
criteria are met.” Id. The Court, therefore, approved of Commerce’s change in methodology, “as
it substitutes a rigid rule with a more reasonable method that ensures that a respondent’s
information is reliable and verifiable. This is especially true in light of the more lenient statutory
instructions of subsection 1677m(e).” Id.
Accordingly, the Court in Timken upheld Commerce’s decision to accept Koyo's billing
adjustments and rebates, “even though they were not reported on a transaction-specific basis and
even though the allocations Koyo used included rebates on non-scope merchandise.” See id. at
1106. Similarly, in Torrington CIT, the Court followed the rationale of Timken and upheld
Commerce’s determination to accept respondents’ rebates even though they were reported on a
customer-specific rather than transaction-specific basis and even though the allocation
methodology used included rebates on non-scope merchandise. See 24 CIT at __, Slip Op. 00-
44, at 13-16.
The Court finds that Commerce’s decision to accept Koyo’s reported home market billing
adjustments and NTN’s reported home market discounts was supported by substantial evidence
and was fully in accordance with the post-URAA statutory language and the SAA’s statements.
First, the record clearly indicates that Commerce properly used its acquired knowledge of the
Koyo’s computer system and databases to conclude that they could not provide the information
Consol. Court No. 97-10-01801 Page 100
in the preferred form and, moreover, properly scrutinized Koyo’s reported billing adjustments
before concluding that the adjustments were reliable. Commerce also properly accepted Koyo’s
allocation methodology, even though it included adjustments on in-scope and out-of-scope
merchandise, as it carefully reviewed the differences between such merchandise and ensured that
the allocations were not unreasonably distortive. Also, the record clearly supports that NTN
properly attributed its discounts to the sales on which they were earned and such adjustments
were in fact discounts rather than rebates.
Moreover, the record and the Final Results demonstrate that the requirements of 19
U.S.C. § 1677m(e), as noted earlier, were satisfied by the respondents. First, Koyo’s and NTN’s
reported adjustments were submitted in a timely fashion. See § 1677m(e)(1). Second, the
information Koyo and NTN submitted was verified by Commerce. See § 1677m(e)(2). Third,
the respondents’ information was not so incomplete that it could not serve as a basis for reaching
a determination. See § 1677m(e)(3). Fourth, Koyo and NTN demonstrated that they acted to the
best of their abilities in providing the information and meeting Commerce’s new reporting
requirements. See § 1677m(e)(4). Although Commerce did not use the specific language of
“acted to the best of its ability” in the Final Results with respect to billing adjustment one, the
Court finds that Commerce’s comment that it was not “feasible” to either retrieve or allocate the
adjustment more specifically clearly raises the inference that Koyo acted to the best of its ability.
Finally, the Court finds that there was no indication that the information was incapable of being
used without undue difficulties. See § 1677m(e)(5).
Consol. Court No. 97-10-01801 Page 101
Commerce’s determinations with respect to Koyo was also consistent with the SAA. The
Court agrees with Commerce’s finding in the Final Results that given the extremely large
volume of transactions, the level of detail contained in Koyo’s normal accounting records, and
time constraints imposed by the statute, Koyo’s reporting and allocation methodology were
reasonable. This is consistent with the SAA directive under § 1677m(e), which provides that
Commerce “may take into account the circumstances of the party, including (but not limited to)
the party’s size, its accounting systems, and computer capabilities.” SAA at 865. Thus, the
Court finds that Commerce properly considered the ability of Koyo to report its billing
adjustments on a more specific basis.
Accordingly, the Court concludes that Commerce’s acceptance of Koyo’s reported billing
adjustments and NTN’s home market discounts as direct adjustments to NV is supported by
substantial evidence and fully in accordance with law. The Court also finds that since Torrington
failed to raise a challenge to Commerce’s decision to accept NSK’s home market discounts or
PSPAs, the Court sustains Commerce’s decision to accept such adjustments.
Consol. Court No. 97-10-01801 Page 102
XIV. Other Issues
The Court has considered plaintiffs’ and defendant-intervenors’ other challenges to the
Final Results, but finds them unpersuasive. Further, where parties have indicated in their briefs
that their arguments for the instant matter are outlined in briefs submitted for related litigation
pending before the Court, the Court declines to address such challenges. If a party wants
consideration of its arguments, it should clearly articulate them in briefs submitted for the case at
bar.
Consol. Court No. 97-10-01801 Page 103
CONCLUSION
For the foregoing reasons, the case is remanded to Commerce to: (1) annul all findings
and conclusions made pursuant to the duty absorption inquiry conducted for this review; (2)
make adjustments pursuant to 19 U.S.C. § 1677a(c) to § 1677a(a)’s starting price for determining
EP; (3) make adjustments pursuant to § 1677a(c) and (d) to § 1677a(b)’s starting price for
determining CEP; (4) articulate how the record supports its decision to recalculate NTN’s home
market indirect selling expenses without regard to LOT; (5) clarify how it complied with 19
U.S.C. §§ 1677e, 1677m by using facts available and applying an adverse inference with respect
to NTN’s alleged zero-price sample sales and, if Commerce determines that it conformed with
the statutory framework, to include NTN sample sales in its United States sales database or, if
Commerce determines it did not adhere to all of the statutory prerequisite conditions, to give
NTN the opportunity to remedy or explain any deficiency regarding its sample sales; and (6)
clarify whether NTN was provided with notice and opportunity to respond pursuant to §
1677m(d) with regard to its COP and CV data. Commerce’s final determination is affirmed in
all other respects.
____________________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: June 5, 2000
New York, New York
ERRATA
NTN Bearing Corp. v. United States, Consol. Court No. 97-10-01801, Slip-Op. 00-64, dated
June 5, 2000.
Page 9, Line 16: “. . . but see Flora Trade Council v. United States . . .”
should be “. . . Floral . . .”
Page 25, Line 11: “ . . . Final Results, Fed. Reg. at . . .” should be “. . . 62 Fed. Reg. . . .”
Page 26, Line 16: “ . . . Final Results, Fed. Reg. at 54,053 . . .” should be “ . . . 62 Fed. Reg. . . .”
Page 67, Line 3: “ . . . to the bests of its ability . . .” should be “. . . best . . .”
Page 98, Line 14: “ . . . or this Court’s reconsideration of it stance . . .” should be “ . . . its . . . ”
October 11, 2000