FAG Kugelfischer Georg Schafer AG v. United States , 24 Ct. Int'l Trade 580 ( 2000 )

Slip Op. 00-80
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
____________________________________
:
FAG KUGELFISCHER GEORG SCHÄFER AG, :
FAG ITALIA S.p.A., BARDEN :
CORPORATION (U.K.) LTD., FAG :
BEARINGS CORPORATION and THE :
BARDEN CORPORATION, :
:
Plaintiffs, :
:
v. : Court No. 99-08-00465
:
UNITED STATES, :
:
Defendant, :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor. :
____________________________________:
Plaintiffs, FAG Kugelfischer Georg Schäfer AG, FAG Italia
S.p.A., Barden Corporation (U.K.) Ltd., FAG Bearings
Corporation and The Barden Corporation (collectively “FAG”),
move pursuant to USCIT R. 56.2 for judgment upon the agency
record challenging a finding 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, Sweden, and the United
Kingdom; Final Results of Antidumping Duty Administrative
Reviews, 64 Fed. Reg. 35,590 (July 1, 1999).
In particular, FAG argues that Commerce erred in 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). FAG asserts that if Commerce intends to calculate CV
profit on such an aggregate basis, it must do so under the
alternative methodology of § 1677b(e)(2)(B)(i).
Court No. 99-08-00465 Page 2
Commerce responds that it properly calculated CV profit
pursuant to § 1677b(e)(2)(A). The Torrington Company agrees
with Commerce’s methodology for calculating CV profit.
Held: FAG’s USCIT R. 56.2 motion is denied. Commerce’s
final determination is affirmed in all respects.
[FAG’s motion is denied. Case dismissed.]
Dated: July 7, 2000
Grunfeld, Desiderio, Lebowitz & Silverman LLP (Max F.
Schutzman, Andrew B. Schroth and Mark E. Pardo) for
plaintiffs.
David W. Ogden, Acting Assistant Attorney General; David
M. Cohen, Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice (Velta A.
Melnbrencis, Assistant Director); 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, Wesley K. Caine,
Geert De Prest and Lane S. Hurewitz) for defendant-intervenor.
OPINION
TSOUCALAS, Senior Judge: Plaintiffs, FAG Kugelfischer
Georg Schäfer AG, FAG Italia S.p.A., Barden Corporation (U.K.)
Ltd., FAG Bearings Corporation and The Barden Corporation
(collectively “FAG”), move pursuant to USCIT R. 56.2 for
judgment upon the agency record challenging a finding of the
Department of Commerce, International Trade Administration’s
(“Commerce”) final determination, entitled Antifriction
Bearings (Other Than Tapered Roller Bearings) and Parts
Court No. 99-08-00465 Page 3
Thereof From France, Germany, Italy, Japan, Romania, Sweden,
and the United Kingdom; Final Results of Antidumping Duty
Administrative Reviews (“Final Results”), 64 Fed. Reg. 35,590(July 1, 1999).
BACKGROUND
This case concerns the ninth administrative review of
1989 antidumping duty orders on antifriction bearings (other
than tapered roller bearings) and parts thereof imported from
several countries, including Germany, Italy and the United
Kingdom, for the period of review covering May 1, 1997 through
April 30, 1998. In accordance with 19 C.F.R. § 351.213(1998), Commerce initiated the administrative reviews of these
orders on June 29, 1998, see Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for
Revocation in Part, 63 Fed. Reg. 35,188, and published the
preliminary results of the subject reviews on February 23,
1999,1 see Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof From France, Germany, Italy,
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, Pub. L. No. 103-465, 108 Stat. 4809 (1994)
(effective Jan. 1, 1995).
Court No. 99-08-00465 Page 4
Japan, Romania, Singapore, Sweden, and the United Kingdom;
Preliminary Results of Antidumping Duty Administrative Reviews
and Partial Rescission of Administrative Reviews (“Preliminary
Results”), 64 Fed. Reg. 8790. Commerce published the Final
Results on July 1, 1999. See 64 Fed. Reg. at 35,590.
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 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).
Court No. 99-08-00465 Page 5
DISCUSSION
I. Commerce’s CV Profit Calculation
A. Background
For this review, 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, 64 Fed. Reg. at 8795. 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, 64 Fed. Reg. at 35,611. In applying the
preferred methodology for calculating CV profit, Commerce
determined that “an aggregate calculation that encompasses all
foreign like products under consideration for normal value
represents a reasonable interpretation of [§ 1677b(e)(2)(A)]”
and “the use of [such] aggregate data results in a reasonable
and practical measure of profit that [Commerce] can apply
consistently where there are sales of the foreign like product
in the ordinary course of trade.” Id.
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, for consumption in the foreign
country.” 19 U.S.C. § 1677b(e)(2)(A) (1994).
Court No. 99-08-00465 Page 6
B. Contentions of the Parties
FAG argues that Commerce’s use of aggregate data
encompassing all foreign like products under consideration for
NV in 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 Pls.’ Br. Supp. Mot. J. Agency R. at 2, 4-
10; Pls.’ Reply Br. at 2-8. FAG asserts that if Commerce
intends to calculate CV profit on such an aggregate basis, it
must do so under the alternative methodology of
§ 1677b(e)(2)(B)(i). See Pls.’ Br. Supp. Mot. J. Agency R. at
9-10.
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. See
Def.’s Mem. in Opp’n to Pls.’ Mot. J. Agency R. at 3-26. The
Torrington Company agrees with Commerce’s CV profit
calculation. See Torrington’s Resp. to Pls.’ Mot. J. Agency
R. at 5-13.
Court No. 99-08-00465 Page 7
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 FAG’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 is in accordance with law.
CONCLUSION
For the foregoing reasons, Commerce’s final
determination is affirmed in all respects. Case is dismissed.
_______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: July 7, 2000
New York, New York