Slip Op. 99-71
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS ______________________________________________________ : NTN BEARING CORP. OF AMERICA, NTN : CORPORATION, AMERICAN NTN BEARING MFG. : CORP., NTN DRIVESHAFT, INC. and : NTN-BOWER CORPORATION, : : Plaintiffs and : Defendant-Intervenors, : : v. : Consolidated Court : No. 97-01-00092 UNITED STATES, : : Defendant, : : KOYO SEIKO CO., LTD. and KOYO CORPORATION : of U.S.A.; NSK LTD. and NSK CORPORATION, : : Defendant-Intervenors, : : THE TORRINGTON COMPANY, : : Defendant-Intervenor and : Plaintiff. : :
Plaintiffs, The Torrington Company ("Torrington") and NTN Bearing Corp. of America, NTN Corporation, American NTN Bearing Mfg. Corp., NTN Driveshaft, Inc. and NTN-Bower Corporation (collectively "NTN") have filed separate motions for judgment on the agency record pursuant to Rule 56.2 of the rules of this Court contesting various aspects of the Department of Commerce, International Trade Administration's ("Commerce") final results of the fifth administrative review, entitled 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 (Dec. 17, 1996).
Torrington challenges (1) Commerce's acceptance of a foreign importer's deduction of imputed interest expenses on antidumping duty cash deposits from total indirect selling expenses; and (2) Commerce's determination to grant certain allocated discounts and Consol. Court No. 97-01-00092 Page 2
post-sale price adjustments to importers’ home market price calculations.
NTN challenges the following actions by Commerce: the inclusion of (1) home market sales of sample merchandise and (2) sales allegedly not in the ordinary course of trade in its foreign market value ("FMV") calculation; (3) the determination not to make a circumstance of sale adjustment based on the difference in prices at different levels of trade; (4) the determination to allocate selling expenses over total sales without regard to level of trade in calculating both United States and home market price; (5) the determination to exclude related party sales in calculating FMV; and (6) the reallocation of U.S. selling expenses based upon the sale price to the first unrelated purchaser.
Held: Torrington’s motion is denied. NTN’s motion is granted in part and denied in part. Case is remanded for Commerce to: (1) review the record to determine whether it is possible to isolate and remove the portions of Koyo’s warranty expenses which relate to non-scope merchandise from the adjustments to FMV or, in the alternative, to deny the adjustment if such an apportionment cannot be made; and (2) exclude any sample transactions unsupported by consideration. Commerce is affirmed in all other respects.
[Torrington’s motion is denied. NTN’s motion is granted in part and denied in part. Case remanded.]
Dated: July 29, 1999
Barnes, Richardson & Colburn (Donald J. Unger, Kazumune V. Kano and Christine H.T. Yang) for NTN Bearing Corp. of America, NTN Corporation, American NTN Bearing Mfg. Corp., NTN Driveshaft, Inc, and NTN-Bower Corporation.
David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Velta A. Melnbrencis, Assistant Director); Of counsel: Mark A. Barnett, Myles S. Getlan and Sanjay J. Mullick, Attorney-Advisors, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
Powell, Goldstein, Frazer & Murphy LLP, (Peter O. Suchman, Neil R. Ellis and Elizabeth C. Hafner) for Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. Consol. Court No. 97-01-00092 Page 3
Lipstein, Jaffe & Lawson, LLP (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson) for NSK Ltd. and NSK Corporation.
Stewart and Stewart (Terence P. Stewart, Wesley K. Caine, Geert De Prest and Lane S. Hurewitz) for The Torrington Company.
OPINION
TSOUCALAS, Senior Judge: Plaintiffs, The Torrington Company ("Torrington"), NTN Bearing Corp. of America, NTN Corporation,
American NTN Bearing Mfg. Corp., NTN Driveshaft, Inc. and NTN-Bower
Corporation (collectively "NTN"), have filed separate motions for
judgment on the agency record pursuant to Rule 56.2 of the rules of
this Court contesting various aspects of the final results of the
fifth administrative review (from May 1, 1993, through April 30,
1994).
Background
This case concerns antifriction bearings ("AFBs") and parts
thereof from Japan. Commerce published the antidumping duty order covering AFBs from Japan on May 15, 1989. See Antidumping Duty
Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical
Plain Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904.
On December 7, 1995, Commerce published the preliminary results of
the fifth review under the Order entitled, Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From France,
Germany, Japan, Singapore, Sweden, Thailand, and the United Consol. Court No. 97-01-00092 Page 4
Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews, Partial Termination of Administrative Reviews, and Notice
of Intent to Revoke Order, 60 Fed. Reg. 62,817. On December 17,
1996, Commerce published its final results of the subject review.
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 ("Final Results"), 61 Fed. Reg. 66,472, as amended,
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Sweden, and the United Kingdom; Final Results of Antidumping Duty
Administrative Reviews and Partial Termination of Administrative
Reviews, 62 Fed. Reg. 149 (Jan. 2, 1997), Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From
Germany, Italy, Japan, and the United Kingdom: Amended Final
Results of Antidumping Duty Administrative Reviews, 62 Fed. Reg. 3,003 (Jan. 21, 1997).1
1 Because the reviews in this case were initiated prior to January 1, 1995, the applicable law is the antidumping statute as it existed prior to the amendments made by the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994). See Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed. Cir. 1995). Consol. Court No. 97-01-00092 Page 5
Discussion The Court has jurisdiction in this case pursuant to 19 U.S.C.
§ 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).
The Court must uphold Commerce’s final determination unless it
is "unsupported by substantial evidence on the record, or otherwise
not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1994).
Substantial evidence is "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. v. NLRB, 340 U.S.
474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). "It is not within the Court’s domain either to
weigh the adequate quality or quantity of the evidence for
sufficiency or to reject a finding on grounds of a differing
interpretation of the record." Timken Co. v. United States, 12 CIT
955, 962, 699 F. Supp. 300, 306 (1988), aff’d, 894 F.2d 385 (Fed.
Cir. 1990).
A. Torrington's Issues
1. Abandoned Claims
As a preliminary matter, the Court notes that in addition to
the claims raised below, Torrington also challenged (1) Commerce's
failure to apply the reimbursement regulation in instances where
transfer prices were less than cost plus profit and actual dumping Consol. Court No. 97-01-00092 Page 6
margins were found, and (2) Commerce's inclusion of below-cost
sales in calculating constructed value. See Torrington's Mem. Supp. J. Agency R. at 42-56. However, Torrington has abandoned
these two claims in light of Torrington Co. v. United States, 127
F.3d 1077 (Fed. Cir. 1997). See Letter from Torrington (Stewart &
Stewart) to the Clerk of the Court (Nov. 6, 1997).
As a consequence of Torrington's abandonment of these counts,
and pursuant to the Court of Appeals decision in Torrington, 127
F.3d 1077, the Court affirms Commerce's calculation of profit for
constructed value and its determination to refrain from applying
the reimbursement regulation in this case.
2. Deduction of Imputed Interest Expenses on Antidumping Duty Cash Deposits From Indirect Selling Expenses
In the Final Results, Commerce permitted Koyo Seiko Co., Ltd.
and Koyo Corporation of U.S.A. (collectively "Koyo") to deduct
imputed interest expenses on antidumping duty deposits from Koyo's United States indirect selling expenses. Final Results, 61 Fed.
Reg. at 66,488-89.
Torrington argues that Commerce's deduction encourages
companies to dump by providing a larger offset as the antidumping
duty deposit becomes greater. Further, Torrington claims that
Commerce's determination contradicts its most recent practice in Consol. Court No. 97-01-00092 Page 7
the seventh review. Torrington requests that the Court remand this
issue to Commerce with instructions to deny such claims or, in the alternative, to explain its departure from its prior practice.
Torrington's Mem. Supp. J. Agency R. at 15-22.
Commerce maintains that neither the statute nor the
legislative history prohibits this adjustment to indirect selling
expenses. Commerce further asserts that by deducting imputed
interest on antidumping duty deposits, it followed its practice of
the third and fourth reviews, which were sustained by this Court in
NSK Ltd. v. United States, 21 CIT ___, 969 F. Supp. 34 (1997), and Federal-Mogul Corp. v. United States, 20 CIT 234, 918 F. Supp. 386
(1996). Although Commerce acknowledges a recent change in its
position regarding imputed interest in the seventh review, it
argues that the new position has no retroactive application.
Commerce's Partial Opp'n to Mots. J. Agency R. at 40-45.
Koyo argues that Federal-Mogul Corp. v. United States, 20 CIT 1438, 1440-41, 950 F. Supp. 1179, 1182-83 (1996), supports
Commerce's treatment of its imputed interest expenses. Koyo Opp'n
to Torrington's Mot. J. Agency R. at 6. Koyo further asserts that
Commerce's subsequent practices do not affect the results of the
subject review. Id. at 8.
This Court has consistently upheld the adjustment to indirect
selling expenses when Commerce has granted it, and has remanded to Consol. Court No. 97-01-00092 Page 8
Commerce to allow the adjustment when Commerce denied it in the
final results. See Timken Co. v. United States, 21 CIT ___, ___, 989 F. Supp. 234, 250 (1997) (remanding for Commerce to grant
adjustment); NSK, 21 CIT at ___, 969 F. Supp. at 55 (same);
Federal-Mogul, 20 CIT at 1440-41, 950 F. Supp. at 1182-83
(upholding Commerce's decision to grant adjustment).
In accordance with this Court's well-established position, see
Timken Co. v. United States, 22 CIT ___, ___, 16 F. Supp. 2d 1102,
1104 (1998), the Court holds that Commerce's determination to grant
an adjustment to indirect selling expenses for imputed interest
payments incurred in financing antidumping duty cash deposits is
supported by substantial evidence and is in accordance with law.
3. Allocated Discounts, Post-Sale Price Adjustments and Billing Adjustments in FMV Calculations
In the fifth review, Commerce generally made direct
adjustments to foreign market value ("FMV") for discounts, rebates and price adjustments if they were either reported on a transaction
specific basis or were granted as a fixed percentage of sales price
on each transaction (such as a fixed percentage rebate program or
an early-payment discount granted on the total price of a pool of
sales). Final Results, 61 Fed. Reg. 66,498. Consol. Court No. 97-01-00092 Page 9
a. NTN's Billing Adjustments As one of the adjustments, Commerce granted NTN's reported
billing adjustments to home market sales prices. Commerce found
that the great majority of NTN's adjustments were transaction
specific and determined that the instances of non-transaction
specific reporting were so few as to not render the billing
adjustments distortive. Commerce therefore treated all of NTN's
reported home market billing adjustments as direct adjustments to
FMV in the Final Results. 61 Fed. Reg. 66,501.
Torrington argues that Commerce erred by treating NTN's home
market billing adjustments as direct expenses with which to adjust
FMV. Torrington asserts that home market billing adjustments can
be used as a direct adjustment only if reported on a transaction
specific basis, not on groups of sales (i.e., in a non-transaction
specific manner) as NTN reported its billing adjustments.
Torrington's Reply Supp. J. Agency R. at 7-9. According to
Torrington, Commerce's decision to accept discounts as direct deductions to FMV conflicts with Torrington Co. v. United States,
82 F.3d 1039 (Fed. Cir. 1996). Torrington asks for a remand so
that Commerce may adjust FMV only for billing adjustments reported
on a transaction specific basis and deny the adjustment where
reported otherwise. Id. at 10. Consol. Court No. 97-01-00092 Page 10
NTN asserts that Torrington's arguments regarding NTN's non-
transaction specific home market billing adjustments are meritless because the majority of its adjustments were transaction specific.
NTN asserts that the instances of non-transaction specific
reporting did not have any impact on the calculation of FMV and
consequently, did not affect NTN's dumping margin. NTN’s Mem.
Opp’n Torrington’s Mot. J. Agency R. at 5-8.
Sections 1677a and 1677b require Commerce to determine the
price actually charged to a customer both in the home market (FMV)
and in the United States (USP) for the merchandise at issue. See 19 U.S.C. §§ 1677a, 1677b (1988). The actual price charged to a
customer necessarily includes adjustments for discounts or rebates
paid by the company to the customer. The issue here is whether
Commerce may accept NTN's billing adjustments as direct adjustments
to FMV where most, but not all, of the adjustments were granted on
a transaction specific basis.
For Commerce to allow an adjustment to FMV for discounts and
price adjustments under sections 1677a and 1677b, Commerce must
first determine what type of adjustment is being sought (direct or
indirect) and then determine whether the adjustment sought is
calculated and recorded in the manner required for its type. A
direct expense applied as an adjustment to FMV is inherently an
expense which either varies with the quantity sold, Zenith Elecs. Consol. Court No. 97-01-00092 Page 11
Corp. v. United States, 77 F.3d 426, 431 (Fed. Cir. 1996), or is "related to a particular sale." Torrington, 68 F.3d at 1353. The
billing adjustment NTN seeks is an expense, which by its nature, is
direct. The direct adjustment sought by NTN must, therefore, be
reported in a manner appropriate for direct adjustments before
Commerce may grant the adjustment to FMV.
To ensure that the exporter’s claimed adjustments reflect
actual disounts and rebates paid only on the subject merchandise,
Commerce generally requires that these adjustments be reported on
a transaction specific basis or be based on a fixed and constant
percentage of sales price on all transactions reported. Final
Results, 61 Fed. Reg. at 66,498. However, this Court has held that
"[t]he relevant issue regarding direct adjustments is ultimately
not whether they were reported on a transaction specific basis, but
whether a respondent can demonstrate that its adjustments were not
made over non-subject merchandise." NSK, 21 CIT at __, 969 F.
Supp. at 47 (citing Federal-Mogul, 20 CIT at 1443, 950 F. Supp. at 1184-85).
The crux of the issue, therefore, is whether Commerce’s
determination that NTN’s billing adjustments reported on a non-
transaction specific basis were made solely over in-scope
merchandise was reasonable. If Commerce reasonably determined that Consol. Court No. 97-01-00092 Page 12
the adjustment pertained only to subject merchandise, then the
Court must uphold Commerce’s determination.
Although NTN bases its argument that the adjustment should be
upheld because there were only a few instances of non-transaction
specific reporting, the record reveals that the Court should uphold
the adjustment on other grounds. After careful review of the
confidential record, the Court concludes that for the few instances
of non-transaction specific reporting, NTN was able to tie the
adjustment directly to in-scope merchandise, specifically, to
product code and model number. Commerce’s granting of the
adjustment was therefore reasonable and in accordance with law.
b. NSK's Home Market Early Payment Discounts NSK grants rebates, in the form of early payment discounts, to
its distributors if the distributors resell the bearings to certain
customers approved in advance by NSK. Commerce allowed the early
payment discounts as a direct adjustment to FMV because the discounts were granted as a fixed percentage of all purchases by a
given customer. Final Results, 61 Fed. Reg. at 66,500-01.
Torrington claims that NSK's reporting method of dividing
early payment discounts granted to a customer by the customer's
total payments to obtain a customer-specific early payment discount
factor for the period of review is distortive. Torrington argues Consol. Court No. 97-01-00092 Page 13
that actual early payment discounts are granted on a month-by-month
basis, not as NSK reported them. Finally, Torrington asserts that under Torrington, 82 F.3d at 1050-51, Commerce cannot treat
expenses directly related to particular sales as indirect selling
expenses to be deducted from FMV as part of an exporter's sales
price offset. Torrington's Reply Supp. Mot. J. Agency R. at 14-15.
NSK argues that its early payment discounts are a fixed
percentage of total discounts and, therefore, they qualify as a
direct adjustment to price. NSK acknowledges that Commerce prefers
that discounts be reported on an invoice-specific basis, but
asserts that such reporting was not possible in this case, because
NSK does not issue invoices for each shipment in the home market.
However, NSK argues that there is ample evidence on the record
revealing how the early payment discount is earned, recorded and
reported which conclusively demonstrates that the early payment
discount applied equally to scope and non-scope merchandise and is
a fixed percentage across all sales. NSK's Opp'n to Torrington's
Mot. J. Agency R. at 4-8.
The Court agrees with Commerce and NSK. Torrington
erroneously emphasizes form over substance. By arguing that
Commerce should solely consider the method of recording and
allocation of the expenses instead of the calculation of expenses,
Torrington ignores well-established law. Although Commerce Consol. Court No. 97-01-00092 Page 14
generally requires transaction specific reporting before granting
adjustments to FMV for early payment discounts, Commerce will also allow an adjustment if the adjustment is based on a fixed and
constant percentage of sales price on all transactions reported.
As discussed above, these two methods, approved by Commerce and the
Courts, ensure that the adjustment is granted for in-scope
merchandise only. Commerce’s decision to allow the adjustment
where NSK demonstrated that the early payment discount was granted
across all sales is in conformity with Commerce’s approved
practice. Accordingly, because Commerce’s method accurately
determined that the adjustment was attributable to early payment
discounts on the subject merchandise, Commerce is affirmed.
c. Koyo's Home Market Warranty Expenses In the Final Results, Commerce accepted Koyo's home market
warranty expenses as direct expenses. 61 Fed. Reg at 66,485.
Commerce asserts that, upon review of the record, it cannot determine the extent to which Koyo granted its reported warranty
expenses on subject merchandise. Commerce, therefore, asks for a
remand with respect to Koyo’s warranty expenses. Commerce’s
Partial Opp’n Mots. J. Agency R. at 56-57.
Torrington contends that in accepting Koyo's home market
warranty expenses as direct selling expenses, Commerce improperly Consol. Court No. 97-01-00092 Page 15
allowed Koyo to allocate expenses which should have been reported
on a transaction specific basis. Torrington's Mem. Supp. J. Agency R. at 40-47.
Although Koyo recognizes that this Court has already decided
this issue against Koyo in NSK, 21 CIT __, 969 F. Supp. 34, Koyo
asks that the Court reconsider its decision in NSK and affirm
Commerce's acceptance of Koyo's warranty expenses in the Final
Results. Koyo's Opp'n to Torrington's Mot. J. Agency R. at 5-6.
Koyo also argues that even though its warranty expenses were
allocated over a pool of products that may not all have been within
the scope of the AFB antidumping order, virtually all products were
within the scope of one of the three outstanding orders against
Koyo’s products. Id. at 6 (incorporating by reference Koyo’s
Response to Torrington’s Mot. J. Agency R. at 15-16, filed in NSK,
21 CIT ___, 969 F. Supp. 34 (dated Apr. 19, 1996)).
The Court declines to revisit its opinion in NSK, 21 CIT ___, 969 F. Supp. 34. Pursuant to that decision, the Court grants
Commerce’s request for a remand so that Commerce may review the
record to determine whether it is possible to isolate and remove
the portions of Koyo’s warranty expenses which relate to non-scope
merchandise from the adjustments to FMV or to deny the adjustment
if such a distinction and apportionment cannot be made. Consol. Court No. 97-01-00092 Page 16
B. NTN's Issues 1. Inclusion of NTN's Home Market Sales of Sample Merchandise in Calculating FMV
In the Final Results, Commerce determined that certain NTN
sample sales in the home market were not outside the ordinary
course of trade. Commerce, therefore, included these sales in the
calculation of FMV. 61 Fed. Reg. at 66,513-14.
a. Inclusion of Low-volume Sales in Calculating FMV
In the Final Results, Commerce determined that:
NTN's standard of "low volume of sales" is inadequate as a definition of sales not in the ordinary course of trade. NTN has presented no other supporting information that identifies a low-volume sale as outside the ordinary course of trade. [Commerce] has determined that "infrequent sales of small quantities of certain models is insufficient evidence to establish that sales were made outside the ordinary course of trade."
Final Results, 61 Fed. Reg. at 66,514. Commerce asserts that its
inclusion of certain transactions labeled by NTN as "samples"
should be sustained.
NTN argues that all its sales labeled as "sample sales" should
have been excluded from the FMV calculation. NTN asserts that
samples sales were designated as such for valid business reasons
and that, inherently, these reasons remove the sample sales from
the ordinary course of trade. NTN's Mem. Supp. Mot. J. Agency R.
at 8-12. Specifically, NTN argues that Commerce should have Consol. Court No. 97-01-00092 Page 17
excluded sales with an "extremely sporadic sales history" from its
FMV calculations because such sales are outside the ordinary course of trade.
Commerce responds that NTN's argument is based on a confusion
of certain trade law realities. Commerce argues that NTN is using
the phrase "usual commercial quantities" and "ordinary course of
trade" interchangeably, even though they are distinct concepts,
separately defined under different statutes. For example, Commerce
explains, although both concepts pertain to the calculation of FMV,
a company may be denied a claim to exclude sales outside the
ordinary course of trade, but still receive an adjustment for sales
that are not in the usual commercial quantities. In addition,
Commerce argues that NTN never claimed during the administrative
proceedings, as required, that its sales were not in the "usual
commercial quantities." Further, Commerce points out that NTN does
not claim that any correlation exists between the price and
quantity of the sales at issue, which Commerce requires before
determining a specific price with which to calculate FMV.
Commerce's Partial Opp'n Mots. J. Agency R. at 18-19.
Torrington agrees with Commerce and asserts that a low volume
of sales, by itself, does not establish that the sale is outside
the ordinary course of trade. Further, Torrington argues that NTN
did not meet its burden of proving that its sample sales are Consol. Court No. 97-01-00092 Page 18
outside the ordinary course of trade, and that, therefore, Commerce
properly included NTN sample sales in calculating FMV. Torrington's Opp'n to Mot. J. Agency R. at 11-15. In addition,
Torrington argues that the Court has already rejected NTN's
argument. Torrington's Opp'n to Mot. J. Agency R. at 16-17.
The Court agrees with Commerce and Torrington. The statute
defines FMV as the price "at which such or similar merchandise is
sold . . . in the usual commercial quantities and in the ordinary
course of trade for home consumption." 19 U.S.C. § 1677b(a)(1)(A).
"The term ‘ordinary course of trade’ means the conditions and
practices which, for a reasonable time prior to the exportation of
the merchandise which is the subject of an investigation, have been
normal in the trade under consideration with respect to merchandise
of the same class or kind." 19 U.S. C. § 1677(15). In determining
whether a sale is outside the ordinary course of trade, Commerce
must consider "all the circumstances particular to the sales in
question." Cemex, S.A. v. United States, 133 F.3d 897, 900 (1988) (quoting Murata Mfg. Co. v. United States, 17 CIT 259, 264, 820 F.
Supp. 603, 607 (1993)); see also Thai Pineapple Public Co. v.
United States, 20 CIT 1312, 1314, 946 F. Supp. 11, 15 (1996). "An
analysis of these factors should be guided by the purpose of the
ordinary course of trade provision which is to prevent dumping
margins from being based on sales which are not representative of
the home market." Cemex, 133 F.3d at 900 (internal quotations Consol. Court No. 97-01-00092 Page 19
omitted). The factors Commerce may consider in its analysis
include: home market demand, volume of home market sales, sales quantity, sales price, profitability, customers, terms of sale and
frequency of sales. See, e.g., Thai Pineapple, 20 CIT at 1315, 946
F. Supp. at 16; see also Cemex, S.A. v. United States, 19 CIT 587,
589-593 (1995). "In sum, ordinary course of trade is determined on
a case-by-case basis by examining all of the relevant facts and
circumstances." Cemex, 19 CIT at 593.
Plaintiff has the burden of proving whether the sales used in
Commerce’s calculations are outside the ordinary course of trade.
See, e.g., Nacho-Fujikoshi Corp. v. United States, 16 CIT 606, 608,
798 F. Supp. 716, 718 (1992) (citing Koyo Seiko Co. v. United
States, 16 CIT 539, 543, 796 F. Supp. 1526, 1530 (1992)).
NTN argues that because it designated certain sales under the
variable "sample" in its accounting that those transactions were
outside the ordinary course of trade and, therefore, should be excluded from NTN’s home market database prior to calculating
weighted average prices for FMV. NTN’s Mot. J. Agency R. at 9.
However, a party’s mere designation of certain transactions as
"sample sales" is not sufficient to meet plaintiff’s burden of
proof.
In NTN Bearing Corp. v. United States, 19 CIT 1221, 1227-29,
905 F. Supp. 1083, 1089-91 (1995), the Court held that sales that Consol. Court No. 97-01-00092 Page 20 are infrequent are not necessarily outside the "ordinary course of
trade." The Court found that "[w]ithout a complete explanation of
the facts which establish the extraordinary circumstances rendering
particular sales outside the ordinary course of trade, Commerce
cannot exclude those sales from FMV." NTN, 19 CIT at 1229, 905 F.
Supp. at 1091.
In this case, Commerce requested from NTN detailed information
regarding sales that NTN claimed were outside the ordinary course
of trade. In response, NTN merely described the methodology it
used to identify low-volume sales. As discussed in NTN, 19 CIT at 1227-29, 905 F. Supp. at 1089-91, this alone is not sufficient to
support the exclusion of these low-volume sales from NTN’s FMV
calculations. In its final determination, Commerce reasonably
determined that NTN failed to meet its burden of proving that the
sales used in Commerce’s calculations are outside the ordinary
course of trade. The Court therefore upholds Commerce’s
determination to include non-zero priced low-volume sample sales in NTN’s home market database when calculating the FMV of NTN’s AFBs.
b. Zero-Priced Transactions
The transactions which NTN identified during the review as
sample sales included some transactions which occurred for a price
of zero. A zero-priced transaction does not qualify as a "sale"
and, therefore, by definition cannot be included in Commerce’s FMV Consol. Court No. 97-01-00092 Page 21 calculation. See NSK Ltd. v. United States, 115 F.3d 965, 975
(1997) (holding that the term "sold" requires both a transfer of
ownership to an unrelated party and consideration).
Consequently, in light of NSK, the Court remands to Commerce
to exclude any sample transactions unsupported by consideration
from NTN’s FMV calculations.
2. Circumstance of Sales Adjustment Based on Differences in Prices at Different Trade Levels
NTN reported sales at different levels of trade in the home
market. Final Results, 61 Fed. Reg. at 66,508. During the review,
NTN requested that Commerce make a price-based level of trade
("LOT") adjustment when U.S. sales were matched to home market
sales across different levels of trade. Commerce denied a LOT
adjustment based upon differences in prices, stating the following:
[R]espondents must quantify any price differentials that are directly attributable to differences in levels of trade. During the course of this administrative review, NTN made no attempt to quantify the degree to which differences in prices were attributable wholly or partly to differences in levels of trade.
Final Results, 61 Fed. Reg. at 66,508 (internal quotations
omitted).
NTN argues that it provided evidence which supported a LOT
adjustment and asks that the Court remand so that Commerce could
state its reasons for its refusal to make an adjustment and specify Consol. Court No. 97-01-00092 Page 22 what proof Commerce needs to quantify a LOT adjustment for NTN.
NTN's Mem. Supp. Mot. J. Agency R. at 13-16. NTN acknowledges that
this Court has rejected its argument regarding a LOT adjustment in
previous cases but asks the Court to reconsider the issue. Id. at
16. Torrington agrees with Commerce’s determination that NTN did
not submit information sufficient to support a LOT adjustment.
A careful review of the record indicates that NTN submitted
some evidence of varying costs and expenses across different LOTs.
Nonetheless, the Court upholds Commerce’s determination to deny an
LOT adjustment, because NTN failed to show how LOTs account for the
differences in price which NTN reported. Although NTN argues that
"these distinctions in cost readily relate to the differences in
price," see NTN’s Mem. Supp. J. Agency R. at 14, NTN did not demonstrate how the differences in cost and in price were
attributed to LOT. A mere declaration that the differences exist
is insufficient to grant a LOT adjustment.
"This Court has consistently upheld a denial of a level of
trade adjustment where a respondent has failed to demonstrate that
differences in price were directly attributable to differences in
level of trade." Timken Co. v. United States, 21 CIT ___, Slip Op.
97-87 at 10 (July 3, 1997) (citing Koyo Seiko Co. v. United States,
20 CIT 772, 777, 932 F. Supp. 1488, 1493 (1996), NTN Bearing Corp.,
19 CIT at 1232-33, 905 F. Supp. at 1094-95, NTN Bearing Corp. of Consol. Court No. 97-01-00092 Page 23 Am. v. United States, 17 CIT 1149, 1154, 835 F. Supp. 646, 650
(1993)). In addition, the Court has upheld the denial of price-
based LOT adjustments where the party "merely indicated variances
in prices and selling expenses at the different levels of trade,
without illustrating the factors to which they were attributable."
NSK, 21 CIT at ___, 969 F. Supp. at 53. Therefore, the Court finds
that Commerce’s denial of a price-based LOT adjustment in this case
is supported by substantial evidence and is in accordance with law.
3. Reallocation of NTN's Selling Expenses Without Level of Trade Adjustment Based on Indirect Selling Expenses
In the Final Results Commerce determined that the methods NTN
used for allocating its indirect selling expenses did not bear any
relationship to the manner in which NTN incurred the expenses,
leading to distorted allocations. Commerce further determined that
NTN's allocations according to LOT were misplaced and that NTN
could not conclusively demonstrate that its indirect selling expenses vary across LOTs. Because Commerce found that NTN did not
provide sufficient evidence demonstrating that selling expenses are
attributable to trade levels, Commerce recalculated NTN's expenses
to represent selling expenses for all home market sales in the
Final Results. 61 Fed. Reg. at 66,489. Torrington supports
Commerce and argues that NTN has not distinguished the current Consol. Court No. 97-01-00092 Page 24 review from previous reviews in which the Court affirmed Commerce's
reallocation method.
NTN argues that it submitted evidence that unequivocally
established that NTN incurred different selling expenses at
different trade levels. NTN's Mem. Supp. J. Agency R. at 17.
Accordingly, NTN argues that Commerce should have accepted its
allocation of U.S. and home market indirect selling expenses.
Although NTN recognizes that the Court decided against it when
considering a similar issue concerning the level of trade
adjustment, NTN argues that the facts of this case are materially
different from those of the previous review. Id. at 18.
A careful review of the record2 indicates that NTN’s method of
allocating U.S. indirect expenses did not substantiate its claim
that its selling expenses are attributable to different LOTs. In
fact, in some instances, NTN even failed to demonstrate that its
indirect selling expenses varied at all across LOTs. The Court therefore affirms Commerce in this respect.
2 This includes the confidential record describing in depth NTN’s method for allocating expenses. Consol. Court No. 97-01-00092 Page 25 4. Exclusion of NTN's Home Market Sales to Related Parties in Calculating FMV
Commerce excluded NTN's home market sales to related parties
in calculating FMV. Final Results, 61 Fed. Reg. at 66,511.
Commerce asserts that it properly exercised its discretion and
excluded NTN's related party sales in calculating FMV when
Commerce's test disclosed that, on average, NTN's prices to related
parties were lower that its prices to unrelated parties.
Commerce's Partial Opp'n Mots. J. Agency R. at 30-37.
NTN argues that Commerce's method of determining whether NTN's
related party sales were at arm's length was improper. According
to NTN, Commerce should not have discarded NTN's related party
sales without first examining other factors in addition to price,
such as, the terms and the quantities of each related party sale,
because those factors influence price. NTN believes that the
consideration of additional factors is necessary to determine
whether related party sales are "comparable" to sales to unrelated
party's under Commerce's regulation 19 C.F.R. § 353.45. NTN's Mem.
Supp. J. Agency R. at 18-19. NTN further objects to Commerce's use
of a weighted average approach to determine whether related party
prices are comparable to unrelated party prices. According to NTN,
Commerce's weighted average methodology is unreasonable because it
does not accurately reflect the price levels to unrelated and
related parties for part number in the same class or kind. Consol. Court No. 97-01-00092 Page 26 Although NTN recognizes that this Court has affirmed Commerce's
decision to exclude related party sales in NSK, 21 CIT ___, 969 F.
Supp. 34, and NTN, 19 CIT 1221, 905 F. Supp. 1083, NTN asks that
the Court remand for Commerce to revise its test for determining
whether related party sales were made at prices comparable to
unrelated party sales. NTN's Mem. Supp. J. Agency R. at 18-21.
Torrington supports Commerce exclusion of NTN's related party
sales from the calculation of FMV. In addition, Torrington asserts
that Commerce has the authority to exclude related party sales,
unless Commerce is satisfied with the price. Torrington also
asserts that NTN has not demonstrated that Commerce's determination
was unreasonable.
According to 19 U.S.C. § 1677b(3):
If such or similar merchandise is sold or, in the absence of sales, offered for sale through a sales agency or other organization related to the seller . . . , the prices at which such or similar merchandise is sold . . . may be used in determining the foreign market value.
Because the statute is silent as to when Commerce should use
related-party sales in calculating FMV, Commerce has broad
discretion to make that determination. See, Chevron U.S.A. Inc. v. National Resources Defense Council, 467 U.S. 837, 842-43 (1984).
Commerce’s relevant regulation, 19 C.F.R. § 353.45, provides
that: Consol. Court No. 97-01-00092 Page 27 If a producer or reseller sold such or similar merchandise to a person related as described in [19 U.S.C. § 1677(13)], [Commerce] ordinarily will calculate foreign market value based on that sale only if satisfied that the price is comparable to the price at which the producer or reseller sold such or similar merchandise to a person not related to the seller.
Accordingly, there is a strong presumption that Commerce will not
use a related-party price in the calculation of FMV "unless the
manufacturer demonstrates to Commerce’s satisfaction that the
prices are at arm’s length." SSAB Svenskt Stal AB v. United States, 21 CIT ___, ___, 976 F. Supp. 1027, 1030 (1997).
NTN concedes that, in general, prices to related parties were
lower than prices to unrelated parties. Further, NTN failed to
show why Commerce’s reliance on price is unreasonable. See NTN, 19
CIT at 1242, 905 F. Supp. at 1100 (rejecting the assertion that
Commerce should consider factors other than price in determining
whether to disregard related-party sales). The Court, therefore,
affirms Commerce’s determination to disregard related party sales.
5. Reallocation of United States Selling Expenses Based on Resale Price to the First Unrelated Party
NTN reported to Commerce the selling expenses it incurred in
the United States, which were allocated on the basis of transfer
prices from the manufacturer to its related U.S. subsidiary.
Commerce reallocated the expenses based on the resale prices to the
first unrelated purchasers because it determined that the resale Consol. Court No. 97-01-00092 Page 28 prices provided a more reliable measure of value. Final Results,
61 Fed. Reg. at 66,515.
NTN argues that Commerce does not provide any explanation for
its decision to reallocate NTN's U.S. selling expenses. According
to NTN, Commerce's conclusion that prices to unrelated parties are
more accurate than the transfer price is incorrect. NTN
acknowledges that this Court sustained Commerce's methodology in
NSK, 21 CIT ___, 969 F. Supp. 34, but requests that the Court remand so that Commerce could recalculate NTN's margin based on
NTN's data as reported. NTN's Mem. Supp. J. Agency R. at 21-22.
Torrington agrees with Commerce and asserts that this Court has
already rejected NTN's argument.
The Court declines to revisit its rationale articulated in
NSK, which held that Commerce’s reallocation of selling expenses
based on the sales price to the first unrelated purchaser is
reasonable. Accordingly, the Court affirms Commerce’s method of calculating NTN’s margin using resale prices and not transfer
prices.
Conclusion
The case is remanded for Commerce to: (1) review the record to
determine whether it is possible to isolate and remove the portions
of Koyo’s warranty expenses which relate to non-scope merchandise Consol. Court No. 97-01-00092 Page 29 from the adjustments to FMV or, in the alternative, to deny the
adjustment if such an apportionment cannot be made; and (2) exclude
any sample transactions unsupported by consideration from the
calculation for NTN’s FMV. Commerce is affirmed in all other
respects.
_________________________ NICHOLAS TSOUCALAS SENIOR JUDGE
Dated: July 29, 1999 New York, New York