SKF USA Inc. v. United States

Opinion

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 (‘Amended Final Results”), 63 Fed. Reg. 40,878 (July 31, 1998).

*355 Background

This case concerns the eighth administrative review of 1989 anti-dumping 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).

Standard of Review

In reviewing a challenge to Commerce’s final determination in an an-tidumping 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)(l)(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 *356 profit in 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 that encompasses 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 Pis.’ Mot. J. Agency R. at 2, 4-19. Torrington agrees with Commerce’s determinations. See Torrington’s Resp. to Pis.’ Mot. J. Agency R. at 2-3, 5-12.

C. Analysis

In RHP Bearings Ltd. v. United States, 23 CIT 967, 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 982 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.