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


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  •                         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
    

Document Info

Docket Number: Court 99-08-00465

Citation Numbers: 2000 CIT 80, 24 Ct. Int'l Trade 580

Judges: Tsoucalas

Filed Date: 7/7/2000

Precedential Status: Precedential

Modified Date: 8/6/2023