19 Ct. Int'l Trade 1 | Ct. Intl. Trade | 1995
Plaintiffs, NTN Bearing Corporation of America, American NTN Bearing Mfg. Corporation and NTN Corporation (“NTN”), commenced this action challenging certain aspects of the Department of Commerce, International Trade Administration’s (“ITA” or “Commerce”) final results ofits third administrative review of certain tapered roller bearings (“TRBs”) from Japan. Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed. Reg. 4,960 (Feb. 11, 1992), as amended by Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Amendment to Final Results of Antidumping Duty Administrative Review, 57 Fed. Reg. 9,104 (Mar. 16, 1992), (collectively, “Final Results”)
Specifically, plaintiffs claim that the ITA erred in (1) its refusal to employ a 10% maximum deviation limit on any single physical criterion employed by the ITA in their “sum of the deviation” methodology, which is used to determine similar merchandise sold in the home market; (2) basing foreign market value (“FMV”) of TRB cups and cones sold in the U nited States upon prices created by splitting the price of sets sold in the home market; (3) matching U.S. sales with home market sales at different levels of trade when no sales of such or similar merchandise at the same level of trade were found in the home market; (4) its refusal to make a level of trade adjustment which would reflect the full differences in price levels between different levels of trade; (5) its refusal to use a period of six months, which represents a majority of the period of review, for purposes of the “extended period of time test” employed by the ITA as part of its test to exclude home market sales made at prices below cost of production (“COP”); (6) its refusal to use the interest rate reported by NTN, which rate took compensating deposits into account, for purposes of calculating credit expenses in Japan; (7) its use of certain home market sales to determine foreign market value which were inadequate to form a basis of foreign market value pursuant to 19 U.S.C. § 1677b(b) (1988); (8) its comparison of bearings of different design types; and (9) its commission of two clerical errors: namely, its failure to deduct discounts from home market price for purposes of the cost of production test and its failure to identify all possible identical or similar models sold in the home market. Plaintiffs’ Motion and Memorandum in Support Thereof for Judgment on the Agency Record (“Plaintiffs’ Brief”) at 13-64.
Background
In 1976, the Treasury published a dumping finding, T.D. 76-227, with respect to TRBs from Japan. Tapered Roller Bearings and Certain Components Thereof From Japan, 41 Fed. Reg. 34,974 (Aug. 18, 1976). In 1981, Commerce clarified T.D. 76-227 to cover only TRBs four inches or less in outside diameter, and certain TRB components. Tapered Roller Bearings and Certain Components Thereof From Japan; Clarification
In 1987, Commerce published another antidumping duty order on TRBs from Japan. Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, 52 Fed. Reg. 37,352 (Oct. 6, 1987). This order included all TRBs and parts thereof manufactured by NTN and all TRBs over four inches in outside diameter and parts thereof manufactured by other manufacturers.
In August 1991, Commerce published its final results of its first administrative review of TRBs covered by the 1987 order. Tapered Roller Bearings, Finished and Unfinished, and Parts Thereof, From Japan; Final Results of Antidumping Duty Administrative Review, 56 Fed. Reg. 41,508 (Aug. 21,1991). These final results have been contested by Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (“Koyo”) (Court No. 91-09-00704), NTN (Court No. 91-09-00695), and The Tim-ken Company (“Timken”) (Court No. 91-09-00697).
In February 1992, Commerce published the final results of its second administrative review of TRBs covered by the 1987 order. Tapered Roller Bearings, Finished and Unfinished, and Parts Thereof, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed. Reg. 4,951 (Feb. 11, 1992), covering the period October 1,1988 through September 30,1989. These final results have been contested by Timken (CourtNo. 92-03-00162),NTN (CourtNo. 92-03-00167), Koyo (Court No. 92-03-00169), and NSK (Court No. 92-03-00158).
In February of 1992, Commerce published the final results of the third administrative review of TRBs covered by the 1987 order, covering the period October 1, 1989 through September 30, 1990. Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Final Results of Antidumping Duty Administrative Review, 57 Fed. Reg. 4,960 (Feb. 11,1992). These final results have been contested by Koyo (Court No. 92-03-00156), Timken (Court No. 92-03-00161) and, in the present case, NTN (Court No. 92-03-00168).
In March of 1992, Commerce published an amendment to the final results for the third administrative review of TRBs covered by the 1987 order. Tapered Roller Bearings, and Parts Thereof, Finished and Unfinished, From Japan; Amendment to Final Results of Antidumping Duty Administrative Review, 57 Fed. Reg. 9,104 (Mar. 16, 1992). These amended final results have been contested by Timken (Court No. 92-03-00161) and NTN (Court Nos. 92-03-00168 and, in the present case, 92-04-00257).
Discussion
This Court must uphold final results of an ITA administrative review unless the ITA determination is “unsupported by substantial evidence
1. Model Match Methodology:
NTN argues that, for purposes of calculating dumping margins, Commerce compared dissimilar merchandise because it did not impose a ten percent limit upon deviation from the five-criteria model match methodology for selecting the most similar home market TRB model. It is NTN’s position that it is unlawful and unreasonable to compare, on any basis, bearings that are radically different as to any one of the five physical criteria, and not to have placed an individual cap on each of the five criteria used. Thus, the 20% cost cap used does not ensure the physical similarity of bearings or comparable commercial value. Plaintiff s’Brief at 13-21.
The ITA asserts that when identical merchandise is not available in the home market for comparison with the merchandise sold to the United States, Commerce must select “similar” comparison merchandise based upon the physical characteristics of the merchandise being compared. Defendants’ Brief 9-10; 19 U.S.C. § 1677(16) (1988).
In this review, the ITA compared home market sales of TRBs to U.S. sales according to five physical characteristics criteria, determining a “similar” bearing by computing a single factor, the “sum of the deviations,” which is based on differences between the U.S. and home market bearings. With respect to each, ITA compared the variable cost of the
An accurate investigation requires that the merchandise used in the comparison be as similar as possible. Furthermore, as plaintiffs correctly maintain, there is a statutory preference for comparison of most similar, if not identical merchandise for the purpose of FMV calculations. 19 U.S.C. § 1677(16); see Timken Co. v. United States (“Timken I”), 10 CIT 86, 96, 630 F. Supp. 1327, 1336 (1986). Undoubtedly, the ITA’s fundamental objective in an antidumping investigation is to compare the United States price of imported merchandise with the value of “such or similar merchandise” sold in the foreign market. Timken I, 10 CIT at 95, 630 F. Supp. at 1336.
This Court recently ruled on this issue in Koyo Seiko Co. v. United States, 17 CIT 1040, 1043, 834 F. Supp. 431, 434-35 (1993), stating that Commerce’s methodology “must be used in conjunction with the ten percent cap to limit the permissible deviation of the criteria used to make TRB models.” Id. at 1043, 834 F. Supp. at 435. The use of a ten percent cap avoids comparisons between products which differ so dramatically that they simply cannot be considered commercially similar. Id. More recently, this Court adhered to this decision in NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp. and NTN Corp. v. United States, 17 CIT 1149, 1150, 835 F. Supp. 646, 648 (1993), appeal after remand, dismissed, 18 CIT 104, 843 F. Supp. 737 (1994), and in NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp. and NTN Corp. v. United States, 18 CIT 555, 629, 858 F. Supp. 215 (1994).
The Court adheres to its earlier decisions and its recent decision in NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp. and NTN Corp. v. United States, 18 CIT1178, Slip Op. 94-200 (December 29, 1994), and this case is therefore remanded to Commerce to impose a 10% limit upon deviation from the five-criterion model match methodology used in the final results for selecting the most similar home market TRB model.
2. Splitting TRB Sets to Calculate FMV:
NTN argues that splitting of TRB sets into cups and cones is contrary to statute in that it results in the use of fictitious sales and fictitious markets (in order to create fictitious prices) for purposes of establishing foreign market value. NTN further argues that Commerce’s artificial price methodology frustrates the purpose of the antidumping statute because
Commerce maintains that the set-splitting methodology is used to apportion the price of a set to its component parts based on a ratio of the COP of each part to the COP of the set. Commerce asserts that they do not create a fictitious sale: they only allot portions of the price of actual sales to their component parts. Defendants’ Brief at 29-34. Timken supports Commerce’s position. Timken’s Brief at 29-38.
NTN states that the establishment of foreign market value by the agency is subject to clearly defined guidelines in the statute: “In the ascertainment of foreign market value for the purposes of this subtitle no pretended sale or offer for sale, and no sale or offer for sale intended to establish a fictitious market, shall be taken into account.” 19 U.S.C. § 1677b(a)(l) (1988); Plaintiffs’Brief at 21-22.
NTN contends that 19 U.S.C. § 1677b(a)(l) and 19 C.F.R. § 353.43(b) (1992) do not permit the creation of fictitious, “pretended” sales for purposes of calculating foreign market value. Plaintiffs’ Brief at 21-23.
NTN’s argument has been previously rejected by this Court in Timken Co. v. United States (“Timken II”), 11 CIT 786, 794, 673 F. Supp. 495, 504 (1987); see also NTN Bearing Corp. of America v. United States, 14 CIT 623, 639-40, 747 F. Supp. 726, 740 (1990). NTN states that it believes that the decision of the Court in Timken II as to set splitting is erroneous because the Court failed to consider the statutory scheme for the determination of whether merchandise is being sold in the U.S. at less than fair value. Plaintiffs’ Briefat 32. They argue that the statutory scheme provides that fair value shall be determined in the first instance by reference to home market prices for “such or similar” merchandise. 19 U.S.C. § 1677b(a)(l)(A). If there are not sufficient sales of such or similar merchandise in the home market, the statute directs the administering authority to look to third country prices or constructed value. 19 U.S.C. § 1677b(a)(l)(B) and (2). NTN further states that the decision of the Court in Timken II also undermines the fundamental purpose of the anti-dumping duty law by subjecting importers to arbitrary assessments of antidumping duties. Id. at 32.
This Court, having rendered a decision in NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200, on similar arguments, adheres to its decision in that case for the reasons set out therein. Therefore, this Court affirms the ITA’s action on this issue.
3. Sales Across Different Levels of Trade:
NTN argues that Commerce erred in comparing U.S. TRB models with home market TRB models sold at different levels of trade and that the Court should reject Commerce’s methodology. Plaintiffs’ Brief at 34-39. For the reasons set out below, NTN’s argument is without merit.
During the review, for purposes of comparing U.S. TRB models with home market TRB models, Commerce first searched for such or similar merchandise at the same level of trade and then at different levels of trade, making adjustments for differences using NTN’s indirect selling expenses. Defendants’ Brief at 34.
This Court finds Commerce’s comparison of sales across different levels of trade was in accordance with law and this issue is affirmed as to that comparison methodology. See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200.
4. Level of Trade Adjustment:
NTN alternatively claims that, if Commerce is to cross trade levels when selecting such or similar merchandise, a level of trade adjustment based on indirect selling expenses alone does not reflect the substantial price differences between the two levels of trade and, therefore, any adjustments for level of trade differences should not be limited to only differences in selling expenses, but also account for the full differences in price levels. Plaintiffs’ Brief at 39-50.
NTN argues such an adjustment should be made pursuant to 19 C.F.R. § 353.58 (1992), which states in relevant part:
The Secretary normally will calculate foreign market value and United States price based on sales at the same commercial level of trade. If sales at the same commercial level of trade are insufficient in number to permit an adequate comparison, the Secretary will calculate foreign market value based on sales of such or similar merchandise at the most comparable commercial level of trade as sales of the merchandise and make appropriate adjustments for differences affecting price comparability.
(Emphasis added.)
Accordingly, NTN now asks the Court to remand this case to Commerce for a level of trade adjustment accounting for differences in indirect selling expenses as well as “price comparability” and for an explanation as to why NTN has not adequately demonstrated that the difference in price among the levels of trade is due to the differences in levels of trade. Plaintiffs’ Brief at 39-42.
In the present case, however, Commerce explained to the satisfaction of this Court its rejection of NTN’s claim for a level of trade adjustment based on price:
NTN’s argument that a level of trade adjustment should be based on the differences in price levels does not address the issue of*8 whether the difference in price is solely due to the difference in level of trade, or whether other factors affect price. NTN submitted quantifiable evidence which reflects the difference in selling expenses, but because we have already made adjustments for the direct selling expenses, we have based our adjustment on indirect selling expenses only in order to avoid double counting the direct selling expenses [citation omitted].
Final Results, 57 Fed. Reg. at 4,966.
Thus, Commerce concluded that the only quantifiable information submitted by plaintiffs that accounts for the difference in price across levels of trade is selling expenses and, since direct selling expenses were already deducted, Commerce found that a deduction of indirect selling expenses was the only basis for a level of trade adjustment. Id.; see also NTN Bearing Corp., 17 CIT at 1154, 835 F. Supp. at 650. The Court agrees. See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200. Therefore, this Court affirms the ITA’s action on this issue.
5. Extended Period óf Time Test:
Commerce used a period of three months to define “an extended period of time” for purposes of testing whether to include certain below cost sales in its calculation of FMN It is the contention of NTN that three months during a period of review did not represent “an extended period of time” for sales made below the cost of production, but that an extended period must be defined as a majority of the period, or in excess of 50% of the period. Plaintiffs ’ Brief at 51-52.
Commerce disagrees, arguingthat 19 U.S.C. § 1677b(b) is designed to ensure that below-cost sales are disregarded only if they are seasonal or short-term sales. Commerce points out that TRBs are not perishable or subject to seasonal fluctuations and do not undergo frequent generational changes. Defendants’ Brief at 40-43. Timken agrees with the arguments presented by Commerce. Timken’s Brief at 55-56.
Commerce defined an “extended period of time” as three months and explains:
We used a period of three months to define extended period of time since three months is commonly used to measure corporate, financial, and economic performance. The use of three months to measure frequency of below-cost sales shows that sales below COP are not random, accidental, or sporadic. This time measurement also ensures that the Department uses home market prices that are above COP in its price to price comparisons in all but random or sporadic situations.
Final Results, 57 Fed. Reg. at 4,965.
NTN argues that the “extended period of time” should be over half of the 12-month review period or six months. Its entire argument is based on the dictionary definition of extended time. See Plaintiffs’ Brief at 51-52.
Congress did not provide a specified time period in section 1677b(b) for determining whether sales below cost were made over an extended
NTN produced no information indicating that below-cost sales are a normal and expected characteristic of the trade in TRBs. Thus, Commerce’s definition of the term “extended period of time” is supported by substantial evidence and in accordance with law. Further, this Court has previously determined, under similar circumstances, that three months does constitute “an extended period of time.” See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200; see NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp. and NTN Corp. v. United States, 18 CIT 555, 629, 858 F. Supp. 215 (1994). Therefore, this issue is hereby affirmed.
6. Calculation of NTN’s Credit Costs:
NTN argues that, in calculating credit costs, Commerce should take into account any compensating balances that NTN had deposited. NTN asserts it is only fair that Commerce consider these funds as part of the interest expense because NTN must keep the funds tied up on deposit for purposes of a loan. NTN asserts that this expense is based on NTN’s audited books and records and that, therefore, there is no basis for the ITA to reject it. Alternatively, NTN urges that, if the ITA disallows NTN’s claim as to compensating deposits, the ITA should use NTN’s nominal interest rate. Plaintiffs’ Brief at 52-56.
Timken argues that NTN’s interest rate for calculating credit costs should be recalculated without any adjustment for compensating deposits because NTN did not demonstrate that the deposits were required by its bankers with respect to particular commercial loans or were in any way linked to its loans. Timken’s Brief at 38-40. In the review, Commerce agreed with Timken, stating:
We agree with Timken that there is inadequate justification to accept NTN’s credit cost calculation based on compensating deposits. In our preliminary results, we recalculated NTN’s credit costs based on the firm’s net interest expense (disregarding compensating deposits) as most representative of the firm’s internal cost of funds.
Final Results, 57 Fed. Reg. at 4,968.
Commerce states that, although NTN has not demonstrated that Commerce’s formula for calculating credit expenses is in any way unreasonable, the matter should be remanded so that Commerce can explain its methodology. Defendants ’ Brief at 43-44. Because in the final results Commerce did not adequately explain the manner in which it calculated the deposit rate and the reasons for not using NTN’s nominal interest rate, this issue is remanded to Commerce so that it can explain
7. Sales Made in Insufficient Quantities:
NTN argues that Commerce, after properly disregarding below-cost home market sales, improperly used sales in insufficient quantities in determining foreign market value contrary to 19 U.S.C. § 1677b(b). NTN states that Commerce never determined that the remaining sales were adequate and that Commerce’s printouts which were released to NTN did not identify the quantity of each home market model used to determine FMV Consequently, NTN asserts it cannot provide examples of this alleged error as it has for a previous review. NTN requests a remand ordering Commerce to release the information. Plaintiffs ’ Brief at 56-57.
Commerce asserts that, as NTN has not demonstrated that insufficient quantities of TRB models remained after Commerce disregarded below-cost sales, NTN’s complaint should be rejected. Commerce contends it should not be required to supplement the administrative record with currently non-existing compilations. Commerce states that, although it generally uses the quantity of units sold to calculate FMV it does not normally examine the quantity of units sold for each model in calculating FMV Defendants’ Briefed, 44-46. Timken agrees with the ITA’s position and adds that there is no requirement in the statute that the ITA use a particular volume of home market sales in calculating FMV Timken’s Briefed 57-58.
NTN has not demonstrated that Commerce, in fact, used insufficient quantities of home market sales in determining FMV and has not cited to any record reference which would indicate that it requested Commerce to create the information which it now seeks. Therefore, this Court finds that Commerce acted in accordance with law and is supported by substantial evidence. See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200. This issue is hereby affirmed.
8. Bearing Design Type:
NTN contests Commerce’s comparison of bearings of different design types. NTN claims that Commerce erroneously compared normal grade bearings with high precision grade bearings. NTN asserts that neither Commerce’s model match methodology, the sum of deviations methodology, nor Commerce’s cost test, recognize important distinctions between normal grade and high precision grade bearings, which resulted in the comparison of highly dissimilar merchandise. Plaintiffs’ Brief at 58-60.
At the administrative level, Commerce disagreed with NTN, explaining its model match methodology:
Throughout the extended history of the two TRB proceedings, the Department requested input by interested parties and evolved the use of these five physical criteria to identify and compare models sold in the U.S. and the home market. We are aware that these*11 five characteristics are not substitutes for the technical specifications of the products under review, since TRB product manual list more than 25 statistics for each bearing. However, we have determined that, for the purposes of selecting similar merchandise in a dumping calculation, these five criteria are the pertinent data to be collected and analyzed.
Final Results, 57 Fed. Reg. at 4,964.
The Court finds that Commerce acted reasonably in comparing normal grade bearings with precision grade bearings. See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200. This issue is hereby affirmed.
9. Clerical Errors:
NTN alleges Commerce committed two clerical errors. First, NTN notes that, although Commerce has deducted discounts from home market price for purposes of the cost of production test in other antidumping proceedings and had confirmed at the disclosure conference that it had done so in this review, the computer program in this case indicates that no discounts were actually deducted. NTN believes this was a clerical error as the practice of deducting home market discounts for the purpose of the COP test is consistent with past agency practice and with law. Plaintiffs’ Brief at 61-62. Commerce disputes that a clerical error occurred, but admits to a discrepancy between its analysis memorandum and the computer program instructions. Defendants’ Brief at 46. Timken asserts that a remand is not required and disputes the manner in which NTN accounts for discounts. Timken’s Brief at 60-61. In light of the above, this matter is hereby remanded to Commerce for correction of this discrepancy and of any resulting error in the deduction of discounts from home market price for purposes of the cost of production test. See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200.
Second, NTN requests a remand so that Commerce can correct a computer programming error which resulted in a failure to identify all possible identical or similar models sold in the home market. Plaintiffs’ Brief at 62-63. Commerce agrees that a computer programming error occurred. Defendants’ Brief at 46. Therefore, this matter is remanded for correction of the computer program so that all such or similar home market TRBs are identified. See NTN Bearing Corp., 18 CIT 1178, Slip Op. 94-200.
Conclusion
For the foregoing reasons, this case is remanded to Commerce for (1) application of a 10% limit upon deviation from the five-criterion model match methodology used in the final results; (2) explanation of its reasons for not accepting plaintiffs’ method for calculation of credit expenses and not using plaintiffs’ nominal interest rate; (3) correction of any error in the deduction of discounts from home market price for purposes of the cost of production test; and (4) correction of the computer program so that all such or similar home market sales are identified. Commerce’s determination is affirmed in all other respects.
19 U.S.C. § 1677(16) (1988) provides:
The term “such or similar merchandise” means merchandise in the first of the following categories in respect of which a determination for the purpose of part II of this subtitle can be satisfactorily made:
(A) The merchandise which is the subject of an investigation and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise.
(B) Merchandise—
(i) produced in the same country and by the same person as the merchandise which is the subject of the investigation,
(ii) like that merchandise in component material or materials and in the purposes for which used, and
(iii) approximately equal in commercial value to that merchandise.
(C) Merchandise—
(i) produced in the same country and by the same person and of the same general class or kind as the merchandise which is the subject of the investigation,
(ii) like that merchandise in the purposes for which used, and
(iii) which the administering authority determines may reasonably be compared with that merchandise.