RHP Bearings Ltd. v. United States
Slip Op. 00-94 (CIT August 3, 2000)
FINAL RESULTS OF REDETERMINATION PURSUANT TO COURT REMAND
The Department of Commerce has prepared these results of redetermination pursuant to the remand order of the U.S. Court of International Trade in RHP Bearings Ltd., v. United States, Slip Op. 00-94 (CIT August 3, 2000). In accordance with the U.S. Court of International Trade's instructions, we have annulled all findings and conclusions made pursuant to our duty-absorption inquiry conducted for the subject review with respect to Barden Corporation (U.K.) Ltd., the Barden Corporation, and FAG Bearings Corporation (collectively "Barden") and RHP Bearings Ltd., NSK Bearings Europe Ltd., and NSK Corporation (collectively "NSK/RHP"). In addition, we have matched United States sales to Barden's home-market sales of "similar" merchandise before resorting to constructed value, and we have recalculated Barden's dumping margin without regard to results of a cost-of-production analysis.
On September 14, 2000, we released to interested parties for comment the draft results of redetermination pursuant to court remand. On September 19, 2000, we received comments from the Torrington Company which we have addressed in the "Discussion" section that follows. We did not receive comments from any other party.
BACKGROUND AND RESULTS
On August 3, 2000, the U.S. Court of International Trade (the Court) issued its ruling in RHP Bearings Ltd., v. United States, Slip Op. 00-94 (CIT August 3, 2000) (Barden, NSK/RHP), remanding to the Department of Commerce (the Department) the final results in 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, 62 FR 54043 (October 17, 1997), as amended by Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France, Germany, Italy, Japan, Romania, Singapore[,] Sweden and the United Kingdom; Amended Final Results of Antidumping Duty Administrative Reviews, 62 FR 61963 (November 20, 1997) (collectively AFBs 7). This remand directly affects Barden and NSK/RHP with respect to the antidumping duty orders on ball bearings and cylindrical roller bearings and parts thereof from the United Kingdom during the period May 1, 1995, through April 30, 1996.
The first issue remanded in Barden, NSK/RHP concerns whether section 751(a)(4) of the Tariff Act of 1930, as amended (the Act), authorizes the Department to conduct a duty-absorption inquiry for the antidumping duty order in question since the order predates the effective date of the Uruguay Round Agreements Act. Citing its decision in SKF USA Inc. v. United States, Slip Op. 00-28 (CIT March 22, 2000), the Court found that the Department lacked statutory authority to conduct a duty-absorption inquiry in AFBs 7 and remanded the review to the Department to annul all findings and conclusions made pursuant to its duty-absorption inquiry.
The second issue remanded concerns the Department's matching United States sales to "similar" home-market sales prior to resorting to constructed value. Citing the decision in CEMEX, S.A. v. United States, 133 F.3d 897, 904 (Fed. Cir. 1998), the Court found that the Department is required to base Barden's normal value on non-identical but similar merchandise rather than constructed value when sales of identical merchandise have been found to be outside the ordinary course of trade.
The third issue remanded in Barden, NSK/RHP concerns whether the Department unlawfully conducted a below-cost test of Barden's home-market sales. Citing section 773(b)(1) of the Act, the Court found that the Department did not have reasonable grounds to believe or suspect that Barden made below-cost sales in the instant review and remanded the review to the Department to recalculate Barden's dumping margin without regard to the results of the below-cost test.
DISCUSSION OF COMMENTS
Comment 1: The Torrington Company (Torrington) contends that the Department has inherent authority to conduct inquiries into the absorption of antidumping duties in any review apart from the specific requirement imposed by section 751(a)(4) of the Act. It contends further that the Court exceeded its power on judicial review by directing the Department to annul all findings and conclusions made pursuant to its duty-absorption inquiry without permitting the agency to reach a determination consistent with the Court's order. In support of these arguments Torrington cites to the rehearing motion it filed in the related court proceeding, Ct. No. 99-08-00473, dated March 30, 2000, and the April 14, 2000, rehearing motion filed by the United States in the same proceeding. It provides copies of these motions as attachments to its September 8, 2000, comments on the Department's draft remand results. While acknowledging that the Court denied both motions in an Order of May 8, 2000, Torrington urges the Department to disagree with the decision of the Court in Barden, NSK/RHP, and on the aforementioned rehearing motions, and state that the Court exceeded its power on judicial review.
Department's Position: As noted by Torrington, on April 14, 2000, the Department presented a motion to the Court to modify its ruling in the related proceeding on the ground that the Court had erred as a matter of law. See Defendant's Motion for Rehearing and Modification of the Court's Decision, Slip Op. 00-28, and accompanying Order of March 22, 2000, filed in Court No. 99-08-00473 (CIT April 14, 2000). That motion in the related proceeding set forth the Department's position on the matter. As such, there is no need to repeat it here.
Comment 2: Torrington urges the Department to indicate in the final remand results that it disagrees with the Court's interpretation of section 773(b) of the Act. Torrington contends that the statute contains two separate instructions: 1) an affirmative duty for the Department to initiate a cost investigation whenever there are "reasonable grounds to believe or suspect" that sales of the foreign like product were made at prices that are less than the cost of production; and 2) the authority to exclude sales made at less than the cost of production from the calculation of normal value. According to the petitioner, the statute's first instruction does not derogate from the second instruction. The petitioner asserts that the Court's interpretation creates an unlawful "exclusionary" rule whereby the Department is required to ignore the second instruction if cost data, while valid on the merits, were not obtained under circumstances sufficient to constitute "reasonable grounds" to initiate a cost investigation.
Department's Position: Since the Court has unequivocally instructed us to recalculate Barden's dumping margin without regard to the results of the cost-of-production analysis, we have done so. Since our position on this matter was clear from the briefs we filed with the Court we find no need to restate our position here.
FINAL RESULTS OF REDETERMINATION
With respect to the first issue remanded in Barden, NSK/RHP, the Department hereby complies with the remand order as directed by the Court to annul all findings and conclusions made pursuant to its duty-absorption inquiry conducted for AFBs 7 with respect to Barden and NSK/RHP. With respect to the second issue remanded in Barden, NSK/RHP, the Department hereby complies with this remand order as directed by the Court. For the calculation of normal value for Barden we attempted to first match United States sales to similar home-market sales before resorting to constructed value. See the September 27, 2000, Analysis Memorandum for Barden for the Final Results of Redetermination for a detailed description of the changes we made to carry out the model-matching methodology directed by the Court. Furthermore, with respect to the third issue remanded in Barden, NSK/RHP, the Department hereby complies with the remand order as directed by the Court and has recalculated Barden's dumping margin without regard to the results of the below-cost test.
As a result of these changes, Barden's weighted-average margin for the period of review changed from 3.99 percent to 2.53 percent. NSK/RHP's weighted-average margin did not change as a result of the Court's order. Upon a final and conclusive court decision, we will publish an amended final results of review to that effect.
Troy H. Cribb
Acting Assistant Secretary
for Import Administration