Slip Op. 00-59
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
__________________________________________
:
SKF USA Inc., SKF FRANCE S.A., SARMA, :
SKF GmbH, SKF INDUSTRIE S.p.A. and SKF :
SVERIGE AB, :
:
Plaintiffs, :
:
v. : Court No. 98-07-02540
:
UNITED STATES, :
:
Defendant, :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor. :
__________________________________________:
Plaintiffs, SKF USA Inc., SKF France S.A., Sarma, SKF GmbH, SKF Industrie S.p.A. and
SKF Sverige AB (collectively “SKF”), 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, 63 Fed. Reg. 33,320 (June 18, 1998), as amended, Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof From Italy, Romania, and the United Kingdom;
Amended Final Results of Antidumping Duty Administrative Reviews, 63 Fed. Reg. 40,878 (July
31, 1998).
Specifically, SKF contends that Commerce erred in: (1) using aggregate data of all foreign like
products under consideration for normal value in calculating profit for constructed value (“CV”) under
19 U.S.C. § 1677b(e)(2)(A) (1994); and (2) excluding below-cost sales from the CV profit
calculation.
Commerce responds that it properly (1) calculated CV profit pursuant to § 1677b(e)(2)(A);
and (2) excluded below-cost sales from the CV profit calculation. The Torrington Company agrees
with Commerce’s determinations.
Court No. 98-07-02540 Page 2
Held: SKF’s USCIT R. 56.2 motion is denied. Commerce’s final determination is affirmed in
all respects.
[SKF’s motion is denied. Case affirmed.]
Dated: June 1, 2000
Steptoe & Johnson LLP (Herbert C. Shelley) for SKF USA Inc., SKF France S.A., Sarma,
SKF GmbH, SKF Industrie S.p.A. and SKF Sverige AB.
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: David R. Mason, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, for defendant.
Stewart and Stewart (Terence P. Stewart, Geert De Prest and Lane S. Hurewitz) for The
Torrington Company.
OPINION
TSOUCALAS, Senior Judge: Plaintiffs, SKF USA Inc., SKF France S.A., Sarma, SKF
GmbH, SKF Industrie S.p.A. and SKF Sverige AB (collectively “SKF”), 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, 63 Fed. Reg. 33,320 (June 18, 1998), as amended,
Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Italy,
Romania, and the United Kingdom; Amended Final Results of Antidumping Duty Administrative
Court No. 98-07-02540 Page 3
Reviews (“Amended Final Results”), 63 Fed. Reg. 40,878 (July 31, 1998).
BACKGROUND
This case concerns the eighth administrative review of 1989 antidumping duty orders on
antifriction bearings (other than tapered roller bearings) and parts thereof imported from several
countries, including France, Germany, Italy and Sweden, for the period of review (“POR”) covering
May 1, 1996 through April 30, 1997. In accordance with 19 C.F.R. § 353.22(c) (1995), Commerce
initiated the administrative reviews of these orders on June 17, 1997 and August 28, 1997, and
published the preliminary results of the subject reviews on February 9, 1998.1 See Antifriction
Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany,
Italy, Japan, Romania, Singapore, Sweden, and [t]he United Kingdom (“Preliminary Results”),
63 Fed. Reg. 6512 (Feb, 9, 1998) (citations omitted). Commerce published the Final Results on June
18, 1998, see 63 Fed. Reg. at 33,320, and the Amended Final Results on July 31, 1998, see 63 Fed.
Reg. at 40,878.
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).
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).
Court No. 98-07-02540 Page 4
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).
DISCUSSION
I. Commerce’s CV Profit Calculation
A. Background
For this POR, Commerce used constructed value (“CV”) as the basis for normal value (“NV”)
“when there were no usable sales of the foreign like product in the comparison market.” Preliminary
Results, 63 Fed. Reg. at 6516. Commerce calculated the profit component of CV using the statutorily
preferred methodology of 19 U.S.C. § 1677b(e)(2)(A).2 See Final Results, 63 Fed. Reg. at 33,333.
In applying the preferred methodology 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 results in a practical measure of profit that it can apply consistently in each case.
See id. Also, since § 1677b(e)(2)(A) requires Commerce to use the actual amount for profit in
2
Specifically, in calculating constructed value, the statutorily preferred method is 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) (1994).
Court No. 98-07-02540 Page 5
connection with the production and sale of a foreign like product in the “ordinary course of trade,”
Commerce excluded below-cost sales from the CV calculation that were considered to be outside of
the “ordinary course of trade.” See id. at 33,333-36.
B. Contentions of the Parties
SKF contends that Commerce’s use of aggregate data encompassing all foreign like products
under consideration for NV for calculating CV profit is contrary to § 1677b(e)(2)(A) and to the explicit
hierarchy established by § 1677(16) for selecting “foreign like product” for the CV profit calculation.
See SKF’s Reply Br. at 2-21. In addition, SKF argues, inter alia, that Commerce’s CV profit
methodology unlawfully excluded below-cost sales from the CV profit calculation. See SKF’s Br.
Supp. Mot. J. Agency R. at 3, 8-31.
Commerce responds that it properly calculated CV profit pursuant to § 1677b(e)(2)(A) based
on aggregate profit data of all foreign like products under consideration for NV and it properly
excluded below-cost sales from the CV profit calculation. See Def.’s Mem. in Opp’n to Pls.’ Mot. J.
Agency R. at 2, 4-19. Torrington agrees with Commerce’s determinations. See Torrington’s Resp. to
Pls.’ Mot. J. Agency R. at 2-3, 5-12.
Court No. 98-07-02540 Page 6
C. Analysis
In RHP Bearings Ltd. v. United States, 23 CIT __, 83 F. Supp. 2d 1322 (1999), this Court
upheld Commerce’s CV profit methodology of using aggregate data of all foreign like products under
consideration for NV as being consistent with the antidumping statute. See id. at ___, 83 F. Supp. 2d
at 1336. Since SKF’s arguments and the CV profit 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 that Commerce’s CV profit methodology and exclusion of below-cost sales to be
supported by substantial evidence and in accordance with law.
II. Other Issues
The Court has considered SKF’s other arguments to the Final Results, but finds them
unpersuasive.
CONCLUSION
For the foregoing reasons, Commerce’s final determination is affirmed in all respects. Case is
dismissed.
____________________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: June 1, 2000
New York, New York