Torrington Co. v. United States

127 F.3d 1077, 19 I.T.R.D. (BNA) 1673, 1997 U.S. App. LEXIS 28576, 1997 WL 632043
CourtCourt of Appeals for the Federal Circuit
DecidedOctober 15, 1997
DocketNo. 97-1181
StatusPublished
Cited by13 cases

This text of 127 F.3d 1077 (Torrington Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torrington Co. v. United States, 127 F.3d 1077, 19 I.T.R.D. (BNA) 1673, 1997 U.S. App. LEXIS 28576, 1997 WL 632043 (Fed. Cir. 1997).

Opinion

RADER, Circuit Judge.

The United States Court of International Trade upheld an antidumping determination of the United States Department of Com[1079]*1079merce (Commerce). See Torrington Co. v. United States, 881 F.Supp. 622, 629-33 (Ct. Int’l Trade 1995). Commerce had declined to apply 19 C.F.R. § 353.26(a) (1992) in calculating the “United States price” and to exclude below-cost sales from its calculation of the “foreign market value” of certain ball bearings. The Torrington Company (Torrington) appealed. Because Torrington did not show that the below-cost sales were actually reimbursements for ball bearing duties or that the below-cost sales were outside “the ordinary course of trade,” this court affirms.

I.

On May 15, 1989, Commerce published antidumping duty orders on ball bearings manufactured in France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom. See, e.g., Anti-dumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Paris Thereof From the Federal Republic of Germany, 54 Fed.Reg. 20,900 (May 15, 1989). In 1991, Commerce undertook administrative reviews for each country involved in the duty orders. Commerce published its final determinations on June 24, 1992. These determinations reduced the duties on foreign ball bearings. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et al.; Final Results of Anti-dumping Duty Administrative Reviews, 57 Fed.Reg. 28,360 (June 24, 1992) [hereinafter Final Results ].

In making its determinations, Commerce compared the United States price (USP) of the imported bearings, see 19 U.S.C. § 1677a (1988),1 with the foreign market value (FMV) of the same or similar merchandise in a particular foreign home market, see 19 U.S.C. § 1677b. When determining USP, Commerce did not apply its regulation at 19 C.F.R. § 353.26(a). This regulation further decreases the USP to account for the amount of any antidumping duty that a foreign producer “[pjaid directly on behalf of the importer” or “[r]eimbursed to the importer.”2

When determining FMV, Commerce may use either an average of actual sales prices or a “constructed value.” See 19 U.S.C. § 1677b(a)(2). Title 19 defines constructed value as the sum of (A) “the cost of materials ... and of fabrication or other processing,” (B) “an amount for general expenses and profit,” and (C) the cost of packaging. 19 U.S.C. § 1677b(e)(l). In assessing the “amount for general expenses and profit,” Commerce must consider whether the amount is “equal to that usually reflected in sales of merchandise of the same general class or kind as the merchandise under consideration which are made by producers in the country of exportation, in the usual commercial quantities and in the ordinary course of trade.” 19 U.S.C. § 1677b(e)(l)(B) (emphasis added). The statute defines “ordinary course of trade” as “the conditions and practices which ... have been normal in the trade under consideration with respect to merchandise of the same class or kind.” 19 U.S.C. § 1677(15).

When calculating FMV based on actual sales figures, Commerce must disregard sales made “at less than the cost of production.” 19 U.S.C. § 1677b(b). However, the statute does not expressly state whether such below-cost sales must also be disregarded for purposes of calculating the “amount for general expenses and profit” when using [1080]*1080a constructed value. Commerce did not exclude the below-cost sales on these bearings.

On July 21, 1992, Torrington, a domestic producer of ball bearings, filed suit to protest Commerce’s determinations. Specifically, Torrington argued that in calculating USP, Commerce should have applied 19 C.F.R. § 353.26(a) to foreign manufacturers’ sales to their U.S. importer’s at prices below cost plus a reasonable profit. Although not direct payments or reimbursements, these transactions, according to Torrington, were equivalent to, and should be regarded as, duty reimbursements. Torrington also argued that when using a constructed value for FMV, Commerce should have excluded below-cost sales in calculating the “amount for general expenses and profit.” On these issues, the Court of International Trade affirmed Commerce’s actions.

II.

This court, duplicating the review given by the Court of International Trade, upholds an antidumping duty determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B); see also Torrington Co. v. United States, 82 F.3d 1039, 1044 (Fed.Cir.1996). In conducting this review, this court accords “substantial deference to an agency’s interpretation of its own regulations.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994).

A.

The “reimbursement regulation,” 19 C.F.R. § 353.26, provides, in relevant part:

(a) In general. (1) In calculating the United States price, the Secretary will deduct the amount of any antidumping duty which the producer or reseller:
(i) Paid directly on behalf of the importer; or
(ii) Reimbursed to the importer.

This regulation has the effect of reducing the importer’s USP by the amount of any reimbursed duties, thus exposing the importer to further antidumping duties to the extent that the manufacturer paid or reimbursed the original duty assessment.

The laws of the United States, however, do not make money transfers between related foreign and domestic businesses illegal. For this reason, Commerce correctly interprets its regulation to consider below-cost transfers between related manufacturers and importers presumptively legal. As Commerce persuasively reasoned: “Money can be transferred between related parties for a variety of reasons and by a number of means, of which manipulation of transfer pricing is only one. Evidence of below-cost transfer pricing between related parties is not in itself evidence of reimbursement of antidumping duties.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shinyei Corp. of America v. United States
524 F.3d 1274 (Federal Circuit, 2008)
Nsk Ltd. v. United States
510 F.3d 1375 (Federal Circuit, 2007)
Shinyei Corp. of America v. United States
491 F. Supp. 2d 1209 (Court of International Trade, 2007)
NSK LTD. v. United States
416 F. Supp. 2d 1334 (Court of International Trade, 2006)
Shinyei Corporation of America v. United States
355 F.3d 1297 (Federal Circuit, 2004)
Koyo Seiko Co., Ltd. v. United States
186 F. Supp. 2d 1332 (Court of International Trade, 2002)
Torrington Co. v. United States
146 F. Supp. 2d 845 (Court of International Trade, 2001)
Hoogovens Staal BV v. United States
93 F. Supp. 2d 1303 (Court of International Trade, 2000)
NTN Bearing Corp. of America v. United States
83 F. Supp. 2d 1281 (Court of International Trade, 1999)
NTN Bearing Corp. v. United States
1999 CIT 71 (Court of International Trade, 1999)
The Torrington Co. v. United States
127 F.3d 1077 (Federal Circuit, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
127 F.3d 1077, 19 I.T.R.D. (BNA) 1673, 1997 U.S. App. LEXIS 28576, 1997 WL 632043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torrington-co-v-united-states-cafc-1997.