Import Control. In 1996, the International Trade Administration (ITA) of the U.S. De-partment of Commerce assessed antidumping duties against Koyo Seiko Co, NTN Corp, and other companies, on certain tapered roller bearings and their components imported

Question

from Japan. In assessing these duties, the ITA requested information from the makers about their home market sales. NTN responded in part that its figures should not include many sample and small-quantity sales, which were made to enable customers to decide whether to buy the products. NTN provided no evidence to support this assertion, however. In calculating the fair market value of the bearings in Japan, the ITA determined, among other things, that sample and small-quantity sales were within the makers' ordinary course of trade. Koyo and others appealed these assessments to the U.S. Court of International Trade. NTN objected in part to the ITA's inclusion of sample and small-quantity sales. On what basis should the ITA make such determinations? Should the court order the ITA to recalculate its assessment on the basis of NTN's objection? Explain.

Answer 1

Import control
The court explained that "[t]he purpose of the ordinary course of trade provision is to prevent dumping [calculations] from being based on sales which are not representative." The ITA "must evaluate not just one factor taken in isolation but rather . . . all the circumstances particular to the sales in question." However, "the burden rests with the plaintiff to provide [the ITA] with suf-ficient evidence showing that the sales used in [the ITA's] calculations are outside the ordinary course of trade. In the absence of adequate evidence to the contrary, . . . sales [are] within the ordinary course of trade." The method "for deciding when sales are outside the ordinary course of trade has been to examine, on a case-by-case basis, the totality of the circumstances sur-rounding the sale or transaction in question to determine whether the sale or transaction is ex-traordinary." In this case, NTN provided the ITA "with no evidence of statements and represen-tations made by NTN to the entities obtaining samples or small-quantity purchases to enable [the ITA] to establish that sample sales were not a normal condition or practice in the trade un-der consideration." The ITA was entitled to refuse "NTN's claim that sample sales are ‘by their very nature' outside the ordinary course of trade" in the absence of evidence to the contrary. The court stated that the ITA "is correct in pointing out that ‘[s]ample sales may well be a type of condition or practice that is normal in the trade under consideration,' especially if such sales are done on a regular and continuous basis."