Slip Op. 00-142
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
RHP BEARINGS LTD., NSK BEARINGS :
EUROPE LTD. and NSK CORPORATION, :
:
Plaintiffs, :
:
v. : Court No. 98-07-02526
:
UNITED STATES, :
:
Defendant, :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor. :
___________________________________:
Plaintiffs, RHP Bearings Ltd., NSK Bearings Europe Ltd. and
NSK Corporation (collectively “RHP-NSK”), move pursuant to USCIT R.
56.2 for judgment upon the agency record challenging various
aspects of the United States 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).
Specifically, RHP-NSK claims that Commerce erred in: (1)
failing to apply the special rule for merchandise with value added
after importation under 19 U.S.C. § 1677a (1994); (2) calculating
profit for constructed value; (3) denying a partial, price-based
level of trade adjustment to normal value; and (4) deducting United
States repacking expenses as direct selling expenses.
Held: RHP-NSK’s USCIT 56.2 motion is denied. Commerce’s
determination is affirmed.
[RHP-NSK’s motion is denied. Case dismissed.]
Dated: November 2, 2000
Court No. 98-07-02526 Page 2
Lipstein, Jaffe & Lawson, L.L.P. (Robert A. Lipstein, Matthew
P. Jaffe and Grace W. Lawson) for RHP-NSK.
David W. Ogden, Assistant Attorney General; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Velta A. Melnbrencis, Assistant
Director); of counsel: Thomas H. Fine, Patrick V. Gallagher, Myles
S. Getlan, William Isasi and 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, Lane
S. Hurewitz and Wesley K. Caine) for The Torrington Company.
OPINION
TSOUCALAS, Senior Judge: Plaintiffs, RHP Bearings Ltd., NSK
Bearings Europe Ltd. and NSK Corporation (collectively “RHP-NSK”),
move pursuant to USCIT R. 56.2 for judgment upon the agency record
challenging various aspects of the United States 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 (“Final
Results”), 63 Fed. Reg. 33,320 (June 18, 1998).
Specifically, RHP-NSK claims that Commerce erred in: (1)
failing to apply the special rule for merchandise with value added
after importation under 19 U.S.C. § 1677a (1994); (2) calculating
Court No. 98-07-02526 Page 3
profit for constructed value (“CV”); (3) denying a partial, price-
based level of trade (“LOT”) adjustment to normal value (“NV”); and
(4) deducting United States repacking expenses as direct selling
expenses.
BACKGROUND
This case concerns the eighth review of the antidumping duty
order on antifriction bearings (other than tapered roller bearings)
and parts thereof imported to the United States during the review
period of May 1, 1996 through April 30, 1997.1 Commerce published
the preliminary results of the subject review on February 9, 1998.
See Antifriction Bearings (Other Than Tapered Roller Bearings) And
Parts Thereof From France, Germany, Italy, Japan, Romania,
Singapore, Sweden, and The United Kingdom (“Preliminary Results”),
63 Fed. Reg. 6512. Commerce published the Final Results on June
18, 1998. See 63 Fed. Reg. at 33,320. Oral argument was heard on
October 8, 1999.
1
Since the administrative review at issue was initiated
after December 31, 1994, the applicable law is the antidumping
statute as amended by the Uruguay Round Agreements Act, Pub. L. No.
103-465, 108 Stat. 4809 (1994) (effective January 1, 1995)
(“URAA”). See Torrington Co. v. United States, 68 F.3d 1347, 1352
(Fed. Cir. 1995) (citing URAA § 291(a)(2), (b) (noting effective
date of URAA amendments)).
Court No. 98-07-02526 Page 4
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).
STANDARD OF REVIEW
The Court will uphold Commerce’s final determination in an
antidumping administrative review 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); see NTN Bearing
Corp. of America v. United States, 24 CIT ___, ___, 104 F. Supp. 2d
110, 115-16 (2000) (detailing Court’s standard of review for
antidumping proceedings).
DISCUSSION
I. Commerce’s Refusal to Apply the Special Rule for Further
Manufacturing to RHP-NSK’s Constructed Export Price Sales
A. Background
An antidumping duty is imposed upon imported merchandise when
(1) Commerce determines such merchandise is being dumped, that is,
sold or likely to be sold in the United States at less than fair
value, and (2) the International Trade Commission determines that
an industry in the United States is materially injured or is
threatened with material injury. See 19 U.S.C. § 1673 (1994); 19
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U.S.C. § 1677(34) (1994). To determine in an investigation or an
administrative review whether there is dumping, Commerce compares
the price of the imported merchandise in the United States to the
NV for the same or similar merchandise in the home market. See 19
U.S.C. § 1677b (1994). The price in the United States is
calculated using either an export price (“EP”) or constructed
export price (“CEP”). See 19 U.S.C. § 1677a(a), (b).
The Statement of Administrative Action2 (“SAA”) accompanying
the Uruguay Round Agreements Act (“URAA”) clarifies that Commerce
will classify the price of a United States sales transaction as an
EP if “the first sale to an unaffiliated purchaser in the United
States, or to an unaffiliated purchaser for export to the United
States, is made by the producer or exporter in the home market
prior to the date of importation.” H.R. Doc. No. 103-316, at 822
(1994). On the other hand, “[i]f, before or after the time of
2
The Statement of Administrative Action (“SAA”) represents
“an authoritative expression by the Administration concerning its
views regarding the interpretation and application of the Uruguay
Round agreements.” H.R. Doc. No. 103-316, at 656 (1994). “[I]t is
the expectation of the Congress that future Administrations will
observe and apply the interpretations and commitments set out in
this Statement.” Id.; see 19 U.S.C. § 3512(d) (1994) (“The
statement of administrative action approved by the Congress . . .
shall be regarded as an authoritative expression by the United
States concerning the interpretation and application of the Uruguay
Round Agreements and this Act in any judicial proceeding in which
a question arises concerning such interpretation or application.”).
Court No. 98-07-02526 Page 6
importation, the first sale to an unaffiliated person is made by
(or for the account of) the producer or exporter or by a seller in
the United States who is affiliated with the producer or exporter,”
then Commerce will classify the price of a United States sales
transaction as a CEP. Id.; see 19 U.S.C. § 1677a(b); Koenig &
Bauer-Albert AG v. United States, 22 CIT ___, ___, 15 F. Supp. 2d
834, 850-52 (1998) (discussing when to apply EP or CEP
methodology).
Commerce then makes adjustments to the starting price used to
establish EP or CEP by adding: (1) packing costs for shipment to
the United States, if not already included in the price; (2) import
duties which have been rebated or not collected due to exportation
of the subject merchandise to the United States; and (3) certain
countervailing duties if applicable. See 19 U.S.C. §
1677a(c)(1)(A)-(C); SAA at 823. Also, for both EP and CEP,
Commerce will reduce the starting price by the amount, if any,
included in such price that is attributable to: “(1) transportation
and other expenses, including warehousing expenses, incurred in
bringing the subject merchandise from the original place of
shipment in the exporting country to the place of delivery in the
United States; and (2) . . . export taxes or other charges imposed
by the exporting country.” See SAA at 823; see 19 U.S.C. §
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1677a(c)(2)(A), (B).
Commerce must reduce the price used to establish CEP by any of
the following amounts associated with economic activities occurring
in the United States: (1) commissions paid in “selling the subject
merchandise in the United States”; (2) direct selling expenses,
that is, “expenses that result from, and bear a direct relationship
to, the sale, such as credit expenses, guarantees and warranties”;
(3) “any selling expenses that the seller pays on behalf of the
purchaser” (assumptions); (4) indirect selling expenses, that is,
any selling expenses not deducted under any of the first three
categories of deductions; (5) certain expenses resulting from
further manufacture or assembly (including additional material and
labor) performed on the merchandise after its importation into the
United States; and (6) profit allocated to the expenses described
in categories (1) through (5). 19 U.S.C. § 1677a(d)(1)-(3); see
SAA at 823-24.
Commerce calculates the expenses resulting from further
manufacture or assembly using one of two statutory methods. See 19
U.S.C. § 1677a(d), (e). The first method provides that Commerce
shall reduce “the price used to establish constructed export price
by . . . the cost of any further manufacture or assembly (including
Court No. 98-07-02526 Page 8
additional material and labor), except in [certain] circumstances.”
19 U.S.C. § 1677a(d)(2). When the first method does not apply,
Commerce applies a “special rule for merchandise with value added
after importation” (“special rule”). 19 U.S.C. § 1677a(e). The
special rule provides the following:
Where the subject merchandise is imported by a
person affiliated with the exporter or producer, and the
value added in the United States by the affiliated person
is likely to exceed substantially the value of the
subject merchandise, the administering authority shall
determine the constructed export price for such
merchandise by using one of the following prices if there
is a sufficient quantity of sales to provide a reasonable
basis for comparison and the administering authority
determines that the use of such sales is appropriate:
(1) The price of identical subject merchandise sold
by the exporter or producer to an unaffiliated person.
(2) The price of other subject merchandise sold by
the exporter or producer to an unaffiliated person.
If there is not a sufficient quantity of sales to provide
a reasonable basis for comparison under paragraph (1) or
(2), or the administering authority determines that
neither of the prices described in such paragraphs is
appropriate, then the constructed export price may be
determined on any other reasonable basis.
19 U.S.C. § 1677a(e).
In prior reviews, Commerce applied the special rule to RHP-
NSK’s data after estimating that value added in the United States
substantially exceeded the value of the subject merchandise and
“used sales of other subject merchandise as the basis for margins
for these sales.” Antifriction Bearings from United Kingdom:
Court No. 98-07-02526 Page 9
NSK/RHP Bearings Ltd. (NSK/RHP) Preliminary Results Analysis Mem.
Sixth Administrative Review 5/1/94-4/30/95 (July 2, 1996) (Case No.
A-412-801) at 3; see Antifriction Bearings from United Kingdom:
NSK/RHP Bearings Ltd. (NSK/RHP) Preliminary Results Analysis Mem.
Seventh Administrative Review 5/1/95-4/30/96 (Mar. 28, 1997) (Case
No. A-412-801) at 3-4.
In this review, Commerce transmitted a letter to interested
parties and appended a questionnaire divided into five sections.
The letter explained that the recipient was required to complete
section E, Cost of Further Manufacture or Assembly Performed in the
United States, if the subject merchandise was further processed in
the United States. Accordingly, RHP-NSK submitted complete further
manufacturing data in response to Section E of Commerce’s
questionnaire. See Antifriction Bearings from United Kingdom:
NSK/RHP Bearings Ltd. (NSK/RHP) Preliminary Results Analysis Mem.
Eighth Administrative Review 5/1/96-4/30/97 (Jan. 29, 1998) (Case
No. A-412-801) at 4. The letter also stated that if the party
“believe[s] the value added in the United States exceeds
substantially the value of the merchandise imported into the United
States, [the party should] contact the official in charge
immediately.” Letter from Commerce Transmitting Questionnaire
(June 20, 1997), Def.’s Public App. Ex. 1 at 2. Commerce asserts
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that “the record contains no evidence that [RHP-NSK] requested
Commerce to excuse it from responding to Section E of the
questionnaire upon the grounds that the value added in the United
States to [RHP-NSK] imports substantially exceeded the value of the
imports.” Def.’s Mem. Opp’n Pls.’ Mot. J. Agency R. (“Def.’s
Mem.”) at 16-17. RHP-NSK does not dispute this assertion. See
RHP-NSK’s Mem. P. & A. Supp. Mot. J. Agency R. (“RHP-NSK’s Mem.”);
RHP-NSK’s Reply Mem. Supp. Mot. J. Agency R. (“RHP-NSK’s Reply”).
Additionally, question 8 of Section A of the questionnaire
asked the respondent to report the weighted-average net price to
the affiliated importer for each further-manufactured product and
the weighted-average net price for each further manufactured final
product in a manner which would permit Commerce to compare the
transfer prices of the imported products to the final product sold
in the United States. See Def.’s Public App. Ex. 1 at A-8.
Question 8 explained that its purpose was “to provide [Commerce]
with the information necessary to determine whether the value-added
in the United States exceeds substantially the value of the subject
merchandise that has been further processed.” Id. at A-9 n.6.
Question 8 also provided that if the party did “not believe that
the value-added in the United States exceeds substantially the
value of the subject merchandise that has been further processed,
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[the party] need not provide this information.” Id. RHP-NSK did
not respond to question 8 of Section A of the questionnaire. See
Def.’s Public App. Ex. 2 at 32-33.
Commerce evaluated RHP-NSK’s data and analyzed sales of
bearings and parts that were further manufactured in the United
States in the “same manner as non-further manufactured products but
adjusted for the cost of further manufacturing.” Antifriction
Bearings from United Kingdom: NSK/RHP Bearings Ltd. (NSK/RHP)
Preliminary Results Analysis Mem. Eighth Administrative Review
5/1/96-4/30/97 (Jan. 29, 1998) (Case No. A-412-801) at 4. In the
Preliminary Results, Commerce determined “that the estimated value
added in the United States by all firms, with the exception of
NSK/RHP and NPBS, accounted for at least 65 percent of the price
charged to the first unaffiliated customer for the merchandise as
sold in the United States.” 63 Fed. Reg. at 6515. Thus, for RHP-
NSK’s further-manufactured imports, Commerce reduced the sales
price to the first unaffiliated customer by the cost of further
manufacturing to calculate CEP. See Antifriction Bearings from
United Kingdom: NSK/RHP Bearings Ltd. (NSK/RHP) Preliminary Results
Analysis Mem. Eighth Administrative Review 5/1/96-4/30/97 (Jan. 29,
1998) (Case No. A-412-801) at 4.
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Following the Preliminary Results, RHP-NSK used data on the
record to perform its own calculation of the value added in the
United States and informed Commerce that it qualified for the
special rule. See App. Supp. RHP-NSK’s Mem., Ex. 6, U.K. Issues
Br. (Mar. 16, 1998). RHP-NSK asked Commerce to apply the special
rule as it had done in prior reviews. See id.
In the Final Results, Commerce declined to apply the special
rule for further manufacturing set forth in 19 U.S.C. § 1677a(e).
63 Fed. Reg. 33,338. Commerce explained its rationale as follows:
As we stated in our new regulations, the special rule for
further manufacturing exists in order to reduce
[Commerce’s] administrative burden. 62 [Fed. Reg.] at
27,353. See, also, section 772(e) of the Act, which
provides that [Commerce] need only apply the special rule
where it determines that the use of such alternative
calculation methodologies is appropriate. We retain the
authority to refrain from applying the special rule in
those situations where the value added, while large, is
simple to calculate. Id. Respondents submitted Section
E data in its questionnaire and supplemental responses.
We acted within our discretion by employing this data to
calculate the U.S. value added, as the calculation
involves little more than the subtraction of the value-
added figures which [RHP-NSK] provided. Thus, this case
does not present the complex data-gathering and
calculation burdens contemplated by the special rule.
Final Results, 63 Fed. Reg. at 33,338.
B. Contentions of the Parties
RHP-NSK contends that Commerce erred in refusing to apply the
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special rule to its further-manufactured imports. RHP-NSK’s Mem.
at 3. RHP-NSK maintains that the special rule provides that if
certain requirements were met, Commerce was required “to determine
CEP for subject merchandise further manufactured in the United
States by using either the price of identical subject merchandise,
or the price of other subject merchandise, sold by the exporter or
producer to an unaffiliated person,” as provided by 19 U.S.C. §
1677a(e). Id. Thus, RHP-NSK believes that once Commerce
determines that the value added in the United States is at least
65% of the price charged to the first unaffiliated purchasers,
Commerce has no choice but to apply the special rule as provided in
§ 1677a(e). See id. at 13.
RHP-NSK argues that in the Preliminary Results, Commerce
erroneously determined that RHP-NSK failed to qualify for the
special rule and refused to correct its error after RHP-NSK showed
it to Commerce. See id. at 5. RHP-NSK contends that instead of
correcting the error, Commerce “made up a new reason for why it had
decided not to apply the [s]pecial [r]ule to [RHP-NSK],” namely,
that RHP-NSK’s “value-added figures had been simple to calculate.”
Id. at 5-6. RHP-NSK argues that the “facts do not support
Commerce’s post-hoc assertion that it rejected use of the [s]pecial
[r]ule with respect to [RHP-NSK] pursuant to so-called
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discretionary authority.” Id. at 15.
RHP-NSK further contends that although it is unnecessary to
examine legislative history because the statute is clear, the
legislative history confirms that Commerce must apply the special
rule whenever the facts meet the terms of § 1677a(e). See id. at
16. Specifically, RHP-NSK maintains that the SAA “says nothing
about Commerce having discretionary authority to jettison [§
1677a(e)] and revert to [§ 1677a(d)(2)] (even when the burdens
imposed by that provision are less than enormous).” Id.
Finally, RHP-NSK maintains that the Court should reject
Commerce’s determination because it offends “principles of
procedural fairness found in the statute.” Id. at 17. RHP-NSK
points to Shikoku Chems. Corp. v. United States, 16 CIT 382, 795 F.
Supp. 417 (1992) for the proposition that Commerce abuses its
discretion and acts unreasonably when it consistently applies a
certain methodology in a series of reviews then alters the
methodology without warning, to the detriment of the plaintiff.
See id. According to RHP-NSK, the facts of the instant case are
analogous to those in Shikoku, where the court recognized that the
new method might have been an improvement but held that Commerce
had abused its discretion and acted unreasonably. See id.
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Commerce contends that since “Congress has not specified the
criteria that Commerce must utilize in determining whether the use
of the alternative methodologies is appropriate[,] Congress has
granted to Commerce broad discretion in determining when the use of
the alternative methodologies is appropriate.” Def.’s Mem. at 13.
Commerce maintains that its refusal to use the special rule was
appropriate because it possessed the authority to “refrain from
applying the special rule in situations in which the value added,
though large, is simple to calculate.” Id. Commerce believes that
“the special rule requires not only that the value added in the
United States by the affiliated person is likely to exceed
substantially the value of the subject merchandise, but also that
Commerce ‘determines that the use of’ the specified sales prices
(or alternative methodologies for calculating CEP) is appropriate.”
Id. at 20. In this circumstance, Commerce maintains that the use
of the special rule was not appropriate since the value added was
simple to calculate under § 1677a(d)(2). See id. at 21.
Commerce also contends “[t]he fact that, in the Preliminary
Results, Commerce may have calculated [RHP-NSK’s] CEP using the
traditional value-added calculation methodology because of the
erroneous conclusion that [RHP-NSK] did not meet the 65 percent
standard does not preclude Commerce from using the same CEP for the
Court No. 98-07-02526 Page 16
final results for different reasons.” Id. at 22. Commerce
distinguishes Shikoku on the grounds that: (1) Commerce had made
determinations on this issue in only two prior reviews and,
therefore, had not formulated a policy yet; (2) there is no
evidence that RHP-NSK relied on Commerce’s use of the special rule;
(3) this case does not involve the possible revocation of a dumping
order and, therefore, does not present the same issue of unfairness
as did Shikoku. See id. at 25. Finally, Commerce argues that it
did not unfairly single out RHP-NSK because the other respondents,
unlike RHP-NSK, had “demonstrated with their initial Section A
questionnaire response that the value added in the United States
substantially exceeded the value of the imported merchandise.” Id.
at 25-26.
The Torrington Company (“Torrington”) argues that Congress
enacted § 1677a(d)(2) and (e) in order to ensure that all
merchandise subject to further manufacturing is captured in the CEP
calculation. See Torrington’s Resp. RHP-NSK’s Mot. J. Agency R.
(“Torrington’s Resp.”) at 3. Torrington maintains that RHP-NSK
misinterprets the word “shall” in § 1677a(e) as a requirement that
Commerce apply the special rule, and that the correct
interpretation is that Congress used the word “shall” as an
indication that Commerce should calculate CEP for all merchandise
Court No. 98-07-02526 Page 17
subject to further manufacturing. See id. Torrington argues that
Commerce has broad discretion as to when to apply the special rule,
and having found that its use was inappropriate here, correctly
applied the traditional rule. See id. at 12. Torrington contends
that the statute’s legislative history supports Commerce’s
determination. See id. at 15-16.
C. Analysis
First, the Court addresses RHP-NSK’s contention that
Commerce’s use of the special rule in two prior reviews under
similar circumstances constitutes a “past practice” from which
Commerce cannot deviate without providing adequate justification.
See RHP-NSK’s Mem. at 17-18 (citing Shikoku in support). “It is ‘a
general rule that an agency must either conform itself to its prior
decisions or explain the reasons for its departure . . . .’” Hussey
Cooper, Ltd. v. United States, 17 CIT 993, 997, 834 F. Supp. 413,
418 (1993) (quoting Citrosuco Paulista, S.A. v. United States, 12
CIT 1196, 1209, 704 F. Supp. 1075, 1088 (1988)). Commerce must
explain the reason for its departure to allow the court to
“‘understand the basis of the agency’s action and . . . judge the
consistency of that action with the agency’s mandate.’” Id. at
998, 834 F. Supp. at 419 (quoting Atchinson, Topeka & Santa Fe Ry.
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Co. v. Wichita Bd. Of Trade, 412 U.S. 800, 808 (1973)).
Commerce is not required to follow its prior practice if new
facts or arguments support a different conclusion. See id. at 997,
834 F. Supp. at 418. But “[w]hen the Court finds that an agency
has departed from past practice without an adequate explanation for
the basis of the departure, the agency’s determination must be
rejected.” American Silicon Techs. v. United States, 22 CIT ___,
___, 19 F. Supp. 2d 1121, 1123 (1998).
Although the application of the special rule in only two prior
reviews does not form a long-established practice under the
circumstances presented here, Commerce is under an obligation to
explain the apparent inconsistency of its approach in this review
and the two preceding reviews. The Court finds that Commerce
provided adequate justification for its refusal to apply the
special rule in this review. Commerce justified its refusal to
apply the rule on the ground of administrative convenience and,
more specifically, on its belief that “the special rule for further
manufacturing exists in order to reduce [Commerce’s] administrative
burden.” Final Results, 63 Fed. Reg. at 33,338. Thus, Commerce
retained “the authority to refrain from applying the special rule
in those situations where the value added, while large, is simple
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to calculate.” Id. Administrative convenience is certainly a
valid ground upon which Commerce may base its refusal to apply the
special rule in this review. See SAA at 826 (purpose of special
rule is to save “Commerce the considerable effort of measuring
precisely the U.S. value added.”); Inland Steel Indus. v. United
States, 21 CIT 553, 567-68, 967 F. Supp. 1338, 1354 (1997)
(upholding methodology that Commerce developed for administrative
convenience).
Additionally, RHP-NSK’s reliance on Shikoku, which it cites
for the proposition that Commerce must adhere to its prior
decisions, is misplaced. Shikoku dealt with an attempt by Commerce
to adopt a slightly improved allocation methodology of calculating
the home market price packing adjustment after years of acceptance
of another methodology. See Shikoku, 16 CIT at 387, 795 F. Supp.
at 420-21. At issue were the fifth and sixth administrative
reviews of certain merchandise imported from Japan. See id. at
383, 795 F. Supp. at 417-18. The plaintiffs’ dumping margins for
the previous three consecutive reviews of sales of the contested
merchandise were found to be either de minimis or had a margin of
zero. See id. at 383, 795 F. Supp. at 418. In the fifth and sixth
administrative reviews, Commerce altered its allocation methodology
for calculating home market packing expenses, resulting in barely
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above de minimis margins and, thereby, Commerce refused plaintiffs’
request to revoke the outstanding antidumping duty order covering
the merchandise. See id. at 383-84, 795 F. Supp. at 418.
Commerce’s new calculation was based on information requested for
the first time at verification. See id. at 387, 795 F. Supp. at
421.
The court in Shikoku found that: (1) “Commerce [had] employed
a new process and approach (both synonyms for ‘methodology’)” in
calculating the home market packing expenses and did not merely
apply its standard practice of preferring actual expenses over
allocated expenses; (2) Commerce could not demonstrate that the new
allocation methodology was an improvement; and (3) the evidence on
record established that plaintiffs had relied on Commerce’s old
methodology for calculating the home market price packing
adjustment by adjusting their prices in accordance with the
methodology that Commerce had consistently applied in prior
reviews. Id. at 386-87, 795 F. Supp. at 420. Under these
circumstances, the court, noting that “[t]he margin resulting from
the new approach . . . is barely above de minimis,” determined that
it was “simply too late to mandate another three years of
administrative reviews because of a last minute ‘improvement’ in
Commerce's methodology” and concluded that “Commerce did not have
Court No. 98-07-02526 Page 21
adequate reasons for its last minute change in methodology.” Id.
at 388, 795 F. Supp. at 422.
By contrast, Commerce has no long-established practice of
disregarding administrative considerations and rigidly adhering to
the special rule whenever value added in the United States exceeds
65 percent. This case does not present the situation in which,
relying upon an old methodology, RHP-NSK had actually adjusted its
prices and, except for the change in methodology, it would be
entitled to a revocation of the outstanding antidumping duty order;
therefore, the principles of fairness that prevented Commerce from
changing its methodology in Shikoku are not present here.
The question that remains is whether Commerce’s determination
was “unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C. §
1516a(b)(1)(B)(i). To determine whether Commerce’s interpretation
and application of the antidumping statute is “in accordance with
law,” the Court must undertake the two-step analysis prescribed by
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). Under the first step, the Court reviews
Commerce’s construction of a statutory provision to determine
whether “Congress has directly spoken to the precise question at
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issue.” Chevron, 467 U.S. at 842. “To ascertain whether Congress
had an intention on the precise question at issue, [the Court]
employ[s] the ‘traditional tools of statutory construction.’”
Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir.
1998) (citing Chevron, 467 U.S. at 843 n.9). “The first and
foremost ‘tool’ to be used is the statute’s text, giving it its
plain meaning. Because a statute’s text is Congress’s final
expression of its intent, if the text answers the question, that is
the end of the matter.” Id. (citation omitted).
On its face, 19 U.S.C. § 1677a(e) clearly provides Commerce
with a great deal of discretion in adjusting CEP for the cost of
further manufacture and assembly. When the value added to subject
merchandise in the United States is likely to substantially exceed
the value of the merchandise, Commerce must use specified surrogate
prices if two conditions are met. See 19 U.S.C. § 1677a(e)(1),
(2). The first condition, that there be “a sufficient quantity of
sales to provide a reasonable basis for comparison,” is not at
issue here. Id. The second condition requires Commerce to
“determine[] that the use of such sales is appropriate.” Id.
Thus, the second condition provides that Commerce is not forced to
use the surrogate prices if it determines that their use is not
“appropriate.” See id. In such a circumstance, Commerce is
Court No. 98-07-02526 Page 23
permitted to determine CEP “on any other reasonable basis.” Id.
Commerce, therefore, may determine whether the use of the
surrogate prices is appropriate, and it may also determine the
method by which to calculate CEP, when it finds that the use of the
surrogate prices is not appropriate. This holds true even if
Commerce finds that the value added in the United States “is likely
to exceed substantially the value of the subject merchandise.” 19
U.S.C. § 1677a(e). Thus, even if Commerce was to find that RHP-
NSK’s added value substantially exceeds the value of the
merchandise, Commerce would still have the discretion to refuse to
apply the special rule.3
To calculate value added, Commerce simply subtracted value-
added figures using RHP-NSK’s Section E data. See Final Results,
63 Fed. Reg. 33,338. Commerce determined that it would not employ
a more complicated calculation using the special rule since such a
calculation would be inappropriate “in those situations where the
value added, while large, is simple to calculate.” Id. The Court
finds that Commerce acted within the discretion afforded to it by
3
In fact, neither Commerce nor Torrington dispute that the
value added to RHP-NSK’s merchandise substantially exceeded the
value of the merchandise. See Def.’s Mem. Opp’n Pls.’ Mot. J.
Agency R. at 22; Torrington’s Resp. RHP-NSK’s Mot. J. Agency R. at
18-20.
Court No. 98-07-02526 Page 24
§ 1677a(e) in refusing to apply the special rule to RHP-NSK in this
review. The Court will not require Commerce to use the special
rule when it finds the use inappropriate, since the imposition of
such a requirement would be contrary to § 1677a(e). This is
especially true in light of the fact that there is no evidence that
Commerce’s calculation resulted in distortion or inaccuracy.
Commerce’s determination, therefore, is affirmed.
II. Commerce’s CV Profit Calculation
A. Background
During this review, Commerce used CV as the basis for 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 contained in 19 U.S.C. §
1677b(e)(2)(A). See Final Results, 63 Fed. Reg. at 33,333. The
statutorily preferred method requires calculating 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, for
consumption in the foreign country.” 19 U.S.C. § 1677b(e)(2)(A).
Court No. 98-07-02526 Page 25
In applying the preferred methodology for calculating CV
profit, Commerce determined that: (1) “an aggregate calculation
that encompasses all foreign like products under consideration for
normal value represents a reasonable interpretation of [19 U.S.C.
§ 1677b(e)(2)(A)]”; and (2) “the use of [such] aggregate data
results in a reasonable and practical measure of profit that [it]
can apply consistently in each case.” Final Results, 63 Fed. Reg.
at 33,333. In addition, Commerce used all sales “in the ordinary
course of trade as the basis for calculating CV profit[,]” that is,
it disregarded below-cost sales that were considered to be outside
the ordinary course of trade. Id. at 33,334.
B. Contentions of the Parties
RHP-NSK argues that Commerce’s use of aggregate data
encompassing all foreign like products under consideration for NV
in calculating CV profit is contrary to 19 U.S.C. § 1677b(e)(2)(A)
and to the explicit hierarchy established by 19 U.S.C. § 1677(16)
for selecting “foreign like product” for the CV profit calculation.
See RHP-NSK’s Mem. at 19-22. RHP-NSK maintains that if Commerce
intends to calculate CV profit on such an aggregate basis, it must
do so under the alternative methodology of 19 U.S.C. §
1677b(e)(2)(B)(i). See RHP-NSK’s Reply at 17.
Court No. 98-07-02526 Page 26
Commerce responds that it properly calculated CV profit
pursuant to 19 U.S.C. § 1677b(e)(2)(A) based on aggregate profit
data of all foreign like products under consideration for NV. See
Def.’s Mem. at 28-42. Torrington agrees with Commerce’s CV profit
calculation under 19 U.S.C. § 1677b(e)(2)(A) and, therefore,
maintains it is not necessary to use an alternative methodology
under 19 U.S.C. § 1677b(e)(2)(B). See Torrington’s Resp. at 21-25.
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 RHP-NSK’s
arguments and the methodology used for calculating CV profit 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 calculation methodology
is in accordance with law. Moreover, since (1) 19 U.S.C. §
1677b(e)(2)(A) requires Commerce to use the “actual amount” for
profit in connection with the production and sale of a foreign like
product in the ordinary course of trade, and (2) 19 U.S.C. §
Court No. 98-07-02526 Page 27
1677(15) provides that below-cost sales disregarded under 19 U.S.C.
§ 1677b(b)(1) are considered to be outside the ordinary course of
trade, the Court finds that Commerce properly excluded below-cost
sales from the CV profit calculation.
III. Commerce’s Denial of a Partial, Price-based LOT Adjustment to
NV for RHP-NSK’s CEP Sales
A. Background
During this review, Commerce applied a CEP offset under 19
U.S.C. § 1677b(a)(7)(B) to NV for all of RHP-NSK’s CEP sales. See
Antifriction Bearings from United Kingdom: NSK/RHP Bearings Ltd.
(NSK/RHP) Preliminary Results Analysis Mem. Eighth Administrative
Review 5/1/96-4/30/97 (Jan. 29, 1998) (Case No. A-412-801) at 2-3.
In reaching this result, Commerce first determined for RHP-NSK that
there was one CEP LOT and two home market LOTs, and that the CEP
LOT was not the same as either home market LOT. See id. Commerce
found that “[b]ecause the [home market] levels of trade were
different from the CEP level of trade, [it] could not match to
sales at the same level of trade in the [home market] nor could
[it] determine a level-of-trade adjustment based on NSK/RHP’s [home
market] sales.” Id. Commerce also determined that there was “no
other information that provides an appropriate basis for
determining a level-of-trade adjustment.” Id. For RHP-NSK’s CEP
Court No. 98-07-02526 Page 28
sales, Commerce “determined NV at the same level of trade as the
[United States] sale to the unaffiliated customer and made a CEP
offset adjustment in accordance with” § 1677b(a)(7)(B). Id.
Contrary to RHP-NSK’s contentions, Commerce concluded that no
provision of the antidumping statute provides for a “partial” LOT
adjustment “between two home-market [LOTs] where neither level is
equivalent to the level of the [United States] sale.” Final
Results, 63 Fed. Reg. at 33,331.
B. Contentions of the Parties
RHP-NSK agrees with the manner in which Commerce determined
the LOT of its CEP for NV transactions. See RHP-NSK’s Mem. at 28.
In particular, RHP-NSK agrees that Commerce properly used the CEP
as adjusted for § 1677a(d) expenses prior to its LOT analysis.
RHP-NSK also argues that Commerce should have granted it a
“partial,” price-based LOT adjustment. See id. at 30.
RHP-NSK first notes that Commerce found two LOTs in the home
market, one corresponding to original equipment manufacturers
(“OEM”) sales and the other to after market (“AM”) sales. See id.
at 29. RHP-NSK also agrees that when Commerce matched CEP sales to
home market OEM sales, Commerce correctly applied a CEP offset
because there was no basis for quantifying a price-based LOT
Court No. 98-07-02526 Page 29
adjustment for CEP to OEM NV matches. See id. Further, RHP-NSK
notes that “Commerce correctly concluded that there was no record
information that would allow Commerce to quantify the downward
price adjustment to adjust fully the AM NV [LOT] to the CEP [LOT].”
Id. Nevertheless, RHP-NSK disagrees with Commerce’s decision to
apply a CEP offset when Commerce matched CEP sales to home market
AM sales. In these situations, RHP-NSK argues that §
1677b(a)(7)(A) and the SAA direct Commerce to calculate a partial,
price-based LOT adjustment to NV for CEP sales measured by the
price differences between OEM and AM LOTs. See id. at 30.
RHP-NSK notes that the statute directs Commerce to adjust NV
for any difference between CEP and NV “‘wholly or partly’” due to
a difference in LOT between CEP and NV. Id. (quoting §
1677b(a)(7)(A)). RHP-NSK also notes that § 1677b(a)(7)(B)
indicates a CEP offset should only be used in the total absence of
price-based LOT adjustments. See id. Accordingly, RHP-NSK claims
that since there was evidence for quantifying price differences
between OEM and AM LOTs, Commerce’s failure to calculate a price-
based LOT adjustment that partly accounted for such LOT differences
violated the plain language of § 1677b(a)(7)(A). See RHP-NSK’s
Reply at 17.
Court No. 98-07-02526 Page 30
Commerce argues that it properly denied a partial LOT
adjustment and applied a CEP offset to NV for all of RHP-NSK’s CEP
transactions. See Def.’s Mem. at 42-49. Contrary to RHP-NSK’s
reading of § 1677b(a)(7)(A), Commerce asserts that the statute only
provides for an LOT price-based adjustment to NV based upon price
differences in the home market between the CEP LOT and NV LOT when
the differences can be quantified. See id. at 44-45. Commerce
claims that the statute does not authorize an LOT price-based
adjustment based upon different LOTs in the home market when the
price difference between the CEP LOT sales and the home market LOT
sales cannot be quantified. See id.; see also Final Results, 63
Fed. Reg. at 33,331 (explaining that Commerce does not read into §
1677b(a)(7)(A)’s “wholly or partly” language the authority to make
an LOT adjustment based on differences between two home market LOTs
where neither level is equivalent to the level of the United States
sale). Commerce, therefore, asserts that since it reasonably
interpreted § 1677b(a)(7)(A), the Court should sustain its denial
of an LOT adjustment and grant of a CEP offset for all of RHP-NSK’s
CEP transactions. See Def.’s Mem. at 48-49.
Torrington generally agrees with Commerce’s positions,
emphasizing that Commerce reasonably interpreted § 1677b(a)(7)(A)
as not providing for a “partial” LOT adjustment as contended by
Court No. 98-07-02526 Page 31
RHP-NSK. See Torrington’s Resp. at 27. Torrington further argues
that even if § 1677b(a)(7)(A) permits a partial LOT adjustment,
RHP-NSK nevertheless failed to submit record evidence to show
entitlement to such an adjustment. See id. at 30. Accordingly,
Torrington contends that this Court should not disturb Commerce’s
reasonable interpretation of the statute as applied to the record
evidence. See id. at 31.
C. Analysis
The Court notes that this issue has already been decided in
NTN Bearing, 24 CIT at ___, 104 F. Supp. 2d at 127-31. As this
Court decided in NTN Bearing, Commerce’s decision to deny RHP-NSK
a partial, price-based LOT adjustment measured by price difference
between home market OEM and AM sales was in accordance with law.
There is no indication in § 1677b(a)(7)(A) that the pattern of
price differences between two LOTs in the home market, absent a CEP
LOT in the home market, justifies an LOT adjustment. Rather,
Commerce’s interpretation of § 1677b(a)(7)(A) as only providing an
LOT adjustment based upon price differences in the home market
between the CEP LOT and the NV LOT was reasonable, especially in
light of the existence of the CEP offset to cover situations such
as those at issue here.
Court No. 98-07-02526 Page 32
IV. Commerce’s Treatment of RHP-NSK’s United States Repacking
Expenses as Direct Selling Expenses
A. Background4
RHP-NSK delivered the subject merchandise to unaffiliated
customers in the United States from warehouses owned and operated
by NSK Corporation. See RHP-NSK’s Resp. to Sect. C Questionnaire,
Investigation No. A-412-801, Admin. Rev. 5/1/96-4/30/97, at 39
(Sept. 8, 1997). RHP-NSK normally ships merchandise in its
original containers from its United States warehouse, but in some
instances, it repacked the merchandise to accommodate orders for
smaller distributors. See id.
For the price of the subject merchandise in the United States,
Commerce used EP or CEP, as appropriate, and calculated such prices
“based on the packed [free on board], [cost, insurance, and
freight], or delivered price to unaffiliated purchasers in, or for
exportation to, the United States.” Preliminary Results, 63 Fed.
Reg. at 6515. Commerce also made deductions for: (1) discounts and
rebates; and (2) any movement expenses in accordance with 19 U.S.C.
§ 1677a(c)(2)(A). See id. In calculating CEP, Commerce made
additional adjustments in accordance with § 1677a(d)(1)-(3) by: (1)
4
The Court notes that this issue was decided in NTN
Bearing Corp. of America v. United States, 24 CIT at ___, ___, 104
F. Supp. 2d 110, 117-21 (2000). The reader is referred to NTN
Bearing for additional background information.
Court No. 98-07-02526 Page 33
“deducting selling expenses associated with economic activities
occurring in the United States, including commissions, direct
selling expenses, indirect selling expenses, and repacking expenses
in the United States”; (2) “deduct[ing] the cost of any further
manufacture or assembly,” where appropriate; and (3) “adjust[ing]
for profit allocated to these expenses.” Id. In particular, in
adjusting CEP, Commerce deducted RHP-NSK’s United States repacking
expenses as direct selling expenses under § 1677a(d)(1)(B), rather
than as moving expenses under § 1677a(c)(2)(A), because it
determined that repacking “was performed on individual products in
order to sell the merchandise to the unaffiliated customer in the
United States.” Final Results, 63 Fed. Reg. at 33,339.
B. Contentions of the Parties
RHP-NSK argues, as it did in the Final Results, that Commerce
erred in deducting RHP-NSK’s United States repacking expenses as
direct selling expenses pursuant to § 1677a(d)(1)(B). See RHP-
NSK’s Mem. at 34-37. According to RHP-NSK, the United States
repacking constitutes an expense incident to bringing the subject
merchandise from the original place of shipment in the United
Kingdom to the place of delivery in the United States and,
therefore, should have been (1) classified and deducted as an
Court No. 98-07-02526 Page 34
expense under § 1677a(c)(2)(A), and (2) excluded from the pool of
selling expenses Commerce uses to determine CEP profit. See id.
Specifically, RHP-NSK claims that § 1677a(c)(2)(A) is not
limited to moving expenses, but includes expenses required for
transporting the goods from RHP-NSK’s United States warehouses into
the hands of carriers for delivery to United States customers. See
RHP-NSK’s Reply at 20. RHP-NSK asserts that the cost of United
States repacking is such a § 1677a(c)(2)(A) expense because the
goods cannot be transported unless RHP-NSK first breaks open the
transpacific shipping packages, selects the specific items ordered
and then repacks those items for shipment to the customer’s United
States location. See id. at 22. RHP-NSK clarifies that this
result does not change simply because the United States repacking
may be directly related to particular sales. See id. at 21. RHP-
NSK notes that § 1677a(c)(2)(A) does not preclude the deduction of
expenses directly related to a particular sale; rather, the statute
includes “any additional costs, charges, or expenses,” either
direct or indirect, incident to bringing the subject merchandise
from Japan to the United States customer. Id. (quoting §
1677a(c)(2)(A)). RHP-NSK contends, for instance, that United
States inland freight from its United States warehouse to United
States unaffiliated customers, even though directly related to
Court No. 98-07-02526 Page 35
particular sales to such customers, nevertheless constitutes a §
1677a(c)(2)(A) expense. See id. Thus, RHP-NSK asserts that United
States repacking expense should similarly be treated as §
1677a(c)(2)(A) expenses even though it may be directly related to
particular sales. See id.
Finally, RHP-NSK claims that United States repacking does not
otherwise meet the definitional criteria of § 1677a(d)(1)(B) direct
selling expenses such as credit expenses, guarantees and
warranties. See id. RHP-NSK notes that such expenses assist in
selling products, but do not involve transporting goods from the
United Kingdom to the United States unaffiliated customer as do
United States repacking expenses. See id. at 21-22.
Commerce responds, as it did in the Final Results, that RHP-
NSK’s United States repacking expenses bear no relationship to
“moving the merchandise from one point to another,” as established
by the fact that the “merchandise was moved from the exporting
country to the United States prior to repacking.” Def.’s Mem. at
49 (quoting Final Results, 63 Fed. Reg. at 33,339). Commerce also
contends that § 1677a(d)(1)(B) does not limit direct selling
expenses deducted from CEP to credit expenses, guarantees or
warranties; rather, the statute reduces CEP by the amount of any
Court No. 98-07-02526 Page 36
selling expenses which result, and bear a direct relationship to,
selling expenses in the United States. See id. at 50. Since RHP-
NSK’s repacking “‘was performed on individual products in order to
sell the merchandise to the unaffiliated customer in the United
States,’” Commerce asserts that it properly treated the repacking
expenses as direct selling expenses pursuant to § 1677a(d)(1)(B).
Id. (quoting Final Results, 63 Fed. Reg. at 33,339).
Torrington generally agrees with Commerce’s arguments. See
Torrington’s Resp. at 31-34. Torrington notes, as it did in the
Final Results, that RHP-NSK reported that it normally does not
require repacking for its United States sales, but performed
repacking “in order to sell the merchandise to the unaffiliated
customer in the United States.” Id. at 33. Torrington asserts
that since RHP-NSK’s response is consistent with Commerce’s
treatment of RHP-NSK’s repacking expenses as selling rather than
movement expenses, Commerce properly included RHP-NSK’s repacking
expenses in its calculation of CEP profit. See id. at 33-34.
C. Analysis
The Court finds that RHP-NSK’s United States repacking
expenses were not incident to bringing the subject merchandise from
the original place of shipment in the United Kingdom to the place
Court No. 98-07-02526 Page 37
of delivery in the United States. Rather, such expenses were
clearly direct selling expenses.
Direct selling expenses under § 1677a(d)(1)(B) are not limited
to credit expenses, guarantees and warranties, but include
“expenses which result from and bear a direct relationship to the
particular sale in question.” SAA at 823 (defining direct selling
expenses). In this case, the particular sales in question
concerned orders for smaller distributors. Although RHP-NSK
reported that it normally does not perform repacking for United
States sales (that is, it usually ships merchandise from its United
States warehouse in its original containers), RHP-NSK acknowledged
that it did some repacking to accommodate orders for smaller
distributors. See RHP-NSK’s Resp. to Sect. C Questionnaire,
Investigation No. A-412-801, Admin. Rev. 5/1/96-4/30/97, at 39
(Sept. 8, 1997). The Court finds, therefore, as Commerce did in
the Final Results, that RHP-NSK’s repacking is an “expense
associated with selling the merchandise.” 63 Fed. Reg. at 33,339.
Accordingly, the Court concludes that Commerce properly
treated and deducted RHP-NSK’s United States repacking expenses as
direct selling expenses pursuant to § 1677a(d)(1)(B) rather than as
transportation or other expenses pursuant to § 1677a(c)(2)(A).
Court No. 98-07-02526 Page 38
CONCLUSION
The Court finds that Commerce acted properly in: (1) failing
to apply the special rule for merchandise with value added after
importation under 19 U.S.C. § 1677a; (2) calculating profit for CV;
(3) denying a partial, price-based LOT adjustment to NV; and (4)
deducting United States repacking expenses as direct selling
expenses. Commerce’s determination is affirmed.
_____________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: November 2, 2000
New York, New York
RHP Bearings Ltd. v. United States
Court: United States Court of International Trade
Date filed: 2000-11-02
Citations: 120 F. Supp. 2d 1116, 24 Ct. Int'l Trade 1218
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