Slip Op. 99-43
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
:
SKF USA INC. and SKF INDUSTRIE S.p.A., :
:
Plaintiffs, :
: Consolidated Court No.
v. : 97-01-00054-S1
:
UNITED STATES, :
:
Defendant, :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor. :
Plaintiffs, SKF USA Inc. and SKF Industrie S.p.A.
(collectively "SKF"), move for judgment on the agency record
pursuant to Rule 56.2 of the Rules of this Court. Plaintiffs
challenge certain aspects of the Department of Commerce,
International Trade Administration’s ("Commerce") final results,
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).
SKF claims that Commerce erroneously included in its dumping
margin calculations SKF’s zero-value U.S. transactions involving
samples.
Held: This case is remanded to Commerce to exclude from SKF’s
U.S. sales database samples for which SKF received no
consideration. Commerce’s final determinations are sustained in
all other respects.
Dated: May 13, 1999
Consol. Court No. 97-01-00054-S1 Page 2
Steptoe & Johnson (Herbert C. Shelley and Alice A. Kipel) for
plaintiffs, SKF USA Inc. and SKF Industrie S.p.A.
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, Attorney-Advisor, Office of Chief
Counsel for Import Administration, U.S. Department of Commerce, for
defendant.
Stewart and Stewart (Terence P. Stewart, Wesley K. Caine,
Geert De Prest and Lane S. Hurewitz for defendant-intervenor, The
Torrington Company.
OPINION
TSOUCALAS, Senior Judge: Plaintiffs, SKF USA Inc. and SKF
Industrie S.p.A. (collectively "SKF"), move for judgment on the
agency record pursuant to Rule 56.2 of the Rules of this Court.
Plaintiffs challenge certain aspects of the Department of Commerce,
International Trade Administration’s ("Commerce") final results,
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) ("Final Results").
Consol. Court No. 97-01-00054-S1 Page 3
Specifically, SKF claims1 that Commerce erroneously included
sample transactions in SKF’s U.S. sales database when calculating
its dumping margin. SKF requests a remand so that sample
transactions could be excluded from Commerce’s calculations.
Further, SKF argues that Commerce should be ordered to refund any
antidumping duty overpayment assessed due to the inclusion of
samples in SKF’s U.S. sales database.
Background
This case deals with shipments of antifriction bearings
("AFBs") from Italy sold in the United States during the period
from May 1, 1993, through April 30, 1994.2 Commerce published the
preliminary results of the subject review on December 7, 1995. See
1
Initially, when filing this suit, SKF also challenged
Commerce’s treatment of certain allocated home market billing
expenses. In particular, SKF challenged Commerce’s method of
calculating SKF’s home market sales by accepting positive billing
adjustments, increasing the dumping margin, while rejecting the
corresponding negative adjustments, which would have decreased
SKF’s margin. In light of SKF’s challenge of Commerce’s
determination in another case involving the same issue, SKF is not
pursuing this claim in the instant matter involving antifriction
bearings from Italy. Pl.’s Mem. Supp. Mot. J. Agency R. at 8.
Accordingly, SKF’s challenge of the billing adjustment is dismissed
and Commerce is affirmed in this respect.
2
The review at issue was initiated prior to January 1, 1995.
Consequently, 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. 97-01-00054-S1 Page 4
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France, Germany, Japan, Singapore, Sweden,
Thailand, and the United 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 (Dec. 7, 1995). On December 17, 1996, Commerce
published the Final Results. See 61 Fed. Reg. 66,472.
Discussion
The Court has jurisdiction over this matter under 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).
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).
Consol. Court No. 97-01-00054-S1 Page 5
A. Transactions Not Supported by Consideration
SKF argues that this case should be remanded to Commerce with
instructions pursuant to NSK Ltd. v. United States, 115 F.3d 965
(Fed. Cir. 1997), to exclude SKF’s zero-value U.S. transactions
from the dumping margin calculations. Pl.’s Mem. Supp. Mot. J.
Agency R. at 5.
Commerce agrees a remand under NSK is proper and that it
should exclude sample transactions for which no consideration was
given in its computation of SKF’s U.S. sales. Def.’s Partial Opp’n
to Mot. J. Agency R. at 2.
Torrington argues that SKF failed to demonstrate that the
transactions in question lacked "consideration" as defined by NSK.
Torrington’s Opp’n to Mot. J. Agency R. at 5, 7. In the
alternative, Torrington argues SKF failed to provide sufficient
record evidence to demonstrate that the "sample" transactions were
in fact made outside the "ordinary course of trade," as required by
statute. Id. at 10. Therefore, Torrington argues that Commerce
should be affirmed or that the matter should be remanded to
Commerce to obtain additional data regarding the U.S. sample
transactions. Id.
Consol. Court No. 97-01-00054-S1 Page 6
Commerce is required to impose antidumping duties upon
merchandise that "is being, or is likely to be, sold in the United
States at less than its fair value." 19 U.S.C. § 1673(1) (1988)
(emphasis added). A sale requires both a transfer of ownership to
an unrelated party and consideration. NSK, 115 F.3d at 975. In
other words, a transaction that involves no consideration is not a
sale. Therefore, the distribution of AFBs for no consideration
falls outside the purview of 19 U.S.C. § 1673. Consequently, the
Court remands to Commerce to exclude from SKF’s U.S. sales database
those transactions that were not supported by consideration, and to
adjust the dumping margins accordingly.
B. Refund of Excess Duty
Commerce calculates an antidumping duty by comparing an
imported product’s price in the United States to the foreign market
value ("FMV") of comparable merchandise. The antidumping duty is
the amount by which the merchandise’s FMV exceeds its United States
Price ("USP"). See, e.g., Asociacion Colombiana de Exportadores de
Flores v. United States, 22 CIT __, __, 6 F. Supp.2d 865, 872
(1998); 19 U.S.C. § 1673.
In this case, Commerce agreed to a remand so that it could
exclude from SKF’s U.S. sales database those transactions for which
SKF received no consideration. Upon exclusion of these
transactions from the USP calculations, Commerce will recalculate
Consol. Court No. 97-01-00054-S1 Page 7
the dumping margins accordingly.
SKF requests that this Court order Commerce to refund the
amount of estimated antidumping duty deposits collected in excess
of the lawful amount, with interest. See SKF’s Proposed Order at
2. Although Commerce has agreed to recalculate the dumping margins
on remand by excluding U.S. zero-priced transactions from SKF’s
U.S. sales figures, Commerce maintains that it lacks the authority
to refund the excess duty deposits as requested by SKF. Def.’s
Partial Opp’n to Mot. J. Agency R. at 2.
This Court agrees with Commerce. By statute, it is the
Customs Service that has the authority to "collect any increased or
additional duties due or refund any excess of duties deposited as
determined on a liquidation3 or reliquidation." 19 U.S.C. §
1505(b). Commerce is only authorized to determine the dumping
margin for each entry reviewed and to issue liquidation
instructions to the Customs Service containing the amounts of
antidumping duties due or rates at which antidumping duties should
be assessed upon entries of merchandise covered by an
administrative review. 19 U.S.C. § 1675(a). Consequently, this
Court’s remand to Commerce to exclude zero-priced transactions from
3
Liquidation is the "final computation of ascertainment of the
duties or drawback accruing on an entry" of merchandise. 19 C.F.R.
§ 159.1 (1998).
Consol. Court No. 97-01-00054-S1 Page 8
SKF’s U.S. sales database ensures all the relief to which SKF is
entitled in accordance with this opinion.
Conclusion
The Court remands this case to Commerce to exclude
transactions for which SKF received no consideration from the
margin calculations. Commerce is affirmed in all other respects.
______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: May 13, 1999
New York, New York