Slip Op. 99-43

 UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

 

 :

SKF USA INC. and SKF INDUSTRIE S.p.A., :

 :

 Plaintiffs, :

 : Consolidated Court No.

 v. : 97-01-00054-S1

 :

UNITED STATES, :

 :

 Defendant, :

 :

THE TORRINGTON COMPANY, :

 :

 Defendant-Intervenor. : 

 

Plaintiffs, SKF USA Inc. and SKF Industrie S.p.A.

(collectively "SKF"), move for judgment on the agency record

pursuant to Rule 56.2 of the Rules of this Court. Plaintiffs

challenge certain aspects of the Department of Commerce,

International Trade Administration’s ("Commerce") final results,

entitled Antifriction Bearings (Other Than Tapered Roller Bearings)

and Parts Thereof From France, Germany, Italy, Japan, Singapore,

Sweden, and the United Kingdom; Final Results of Antidumping Duty

Administrative Reviews and Partial Termination of Administrative

Reviews, 61 Fed. Reg. 66,472 (Dec. 17, 1996).

SKF claims that Commerce erroneously included in its dumping

margin calculations SKF’s zero-value U.S. transactions involving

samples.

Held: This case is remanded to Commerce to exclude from SKF’s

U.S. sales database samples for which SKF received no

consideration. Commerce’s final determinations are sustained in

all other respects. 

Dated: May 13, 1999
Consol. Court No. 97-01-00054-S1 Page 2

 Steptoe & Johnson (Herbert C. Shelley and Alice A. Kipel) for

plaintiffs, SKF USA Inc. and SKF Industrie S.p.A.

David W. Ogden, Acting Assistant Attorney General; David M.

Cohen, Director, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice (Velta A. Melnbrencis, Assistant Director);

of counsel: Mark A. Barnett, Attorney-Advisor, Office of Chief

Counsel for Import Administration, U.S. Department of Commerce, for

defendant. 

Stewart and Stewart (Terence P. Stewart, Wesley K. Caine,

Geert De Prest and Lane S. Hurewitz for defendant-intervenor, The

Torrington Company.

OPINION

TSOUCALAS, Senior Judge: Plaintiffs, SKF USA Inc. and SKF

Industrie S.p.A. (collectively "SKF"), move for judgment on the

agency record pursuant to Rule 56.2 of the Rules of this Court.

Plaintiffs challenge certain aspects of the Department of Commerce,

International Trade Administration’s ("Commerce") final results,

entitled Antifriction Bearings (Other Than Tapered Roller Bearings)

and Parts Thereof From France, Germany, Italy, Japan, Singapore,

Sweden, and the United Kingdom; Final Results of Antidumping Duty

Administrative Reviews and Partial Termination of Administrative

Reviews, 61 Fed. Reg. 66,472 (Dec. 17, 1996) ("Final Results").
Consol. Court No. 97-01-00054-S1 Page 3

1 Initially, when filing this suit, SKF also challenged

Commerce’s treatment of certain allocated home market billing

expenses. In particular, SKF challenged Commerce’s method of

calculating SKF’s home market sales by accepting positive billing

adjustments, increasing the dumping margin, while rejecting the

corresponding negative adjustments, which would have decreased

SKF’s margin. In light of SKF’s challenge of Commerce’s

determination in another case involving the same issue, SKF is not

pursuing this claim in the instant matter involving antifriction

bearings from Italy. Pl.’s Mem. Supp. Mot. J. Agency R. at 8.

Accordingly, SKF’s challenge of the billing adjustment is dismissed

and Commerce is affirmed in this respect.

2

 The review at issue was initiated prior to January 1, 1995.

Consequently, the applicable law is the antidumping statute as it

existed prior to the amendments made by the Uruguay Round

Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994). See

Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed. Cir.

1995).

Specifically, SKF claims1 that Commerce erroneously included

sample transactions in SKF’s U.S. sales database when calculating

its dumping margin. SKF requests a remand so that sample

transactions could be excluded from Commerce’s calculations.

Further, SKF argues that Commerce should be ordered to refund any

antidumping duty overpayment assessed due to the inclusion of

samples in SKF’s U.S. sales database.

Background

This case deals with shipments of antifriction bearings

("AFBs") from Italy sold in the United States during the period

from May 1, 1993, through April 30, 1994.2 Commerce published the

preliminary results of the subject review on December 7, 1995. See
Consol. Court No. 97-01-00054-S1 Page 4

Antifriction Bearings (Other Than Tapered Roller Bearings) and

Parts Thereof From France, Germany, Japan, Singapore, Sweden,

Thailand, and the United Kingdom; Preliminary Results of

Antidumping Duty Administrative Reviews, Partial Termination of

Administrative Reviews, and Notice of Intent to Revoke Order, 60

Fed. Reg. 62,817 (Dec. 7, 1995). On December 17, 1996, Commerce

published the Final Results. See 61 Fed. Reg. 66,472.

Discussion

The Court has jurisdiction over this matter under 19 U.S.C. 

§ 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).

The Court must uphold Commerce’s final 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).

Substantial evidence is "more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S.

474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). " It is not within the Court’s domain either to

weigh the adequate quality or quantity of the evidence for

sufficiency or to reject a finding on grounds of a differing

interpretation of the record." Timken Co. v. United States, 12 CIT

955, 962, 699 F. Supp. 300, 306 (1988), aff’d, 894 F.2d 385 (Fed.

Cir. 1990).
Consol. Court No. 97-01-00054-S1 Page 5

A. Transactions Not Supported by Consideration

SKF argues that this case should be remanded to Commerce with

instructions pursuant to NSK Ltd. v. United States, 115 F.3d 965

(Fed. Cir. 1997), to exclude SKF’s zero-value U.S. transactions

from the dumping margin calculations. Pl.’s Mem. Supp. Mot. J.

Agency R. at 5. 

Commerce agrees a remand under NSK is proper and that it

should exclude sample transactions for which no consideration was

given in its computation of SKF’s U.S. sales. Def.’s Partial Opp’n

to Mot. J. Agency R. at 2. 

Torrington argues that SKF failed to demonstrate that the

transactions in question lacked "consideration" as defined by NSK.

Torrington’s Opp’n to Mot. J. Agency R. at 5, 7. In the

alternative, Torrington argues SKF failed to provide sufficient

record evidence to demonstrate that the "sample" transactions were

in fact made outside the "ordinary course of trade," as required by

statute. Id. at 10. Therefore, Torrington argues that Commerce

should be affirmed or that the matter should be remanded to

Commerce to obtain additional data regarding the U.S. sample

transactions. Id.
Consol. Court No. 97-01-00054-S1 Page 6

Commerce is required to impose antidumping duties upon

merchandise that "is being, or is likely to be, sold in the United

States at less than its fair value." 19 U.S.C. § 1673(1) (1988)

(emphasis added). A sale requires both a transfer of ownership to

an unrelated party and consideration. NSK, 115 F.3d at 975. In

other words, a transaction that involves no consideration is not a

sale. Therefore, the distribution of AFBs for no consideration

falls outside the purview of 19 U.S.C. § 1673. Consequently, the

Court remands to Commerce to exclude from SKF’s U.S. sales database

those transactions that were not supported by consideration, and to

adjust the dumping margins accordingly.

B. Refund of Excess Duty

Commerce calculates an antidumping duty by comparing an

imported product’s price in the United States to the foreign market

value ("FMV") of comparable merchandise. The antidumping duty is

the amount by which the merchandise’s FMV exceeds its United States

Price ("USP"). See, e.g., Asociacion Colombiana de Exportadores de

Flores v. United States, 22 CIT __, __, 6 F. Supp.2d 865, 872

(1998); 19 U.S.C. § 1673. 

In this case, Commerce agreed to a remand so that it could

exclude from SKF’s U.S. sales database those transactions for which

SKF received no consideration. Upon exclusion of these

transactions from the USP calculations, Commerce will recalculate
Consol. Court No. 97-01-00054-S1 Page 7

3

 Liquidation is the "final computation of ascertainment of the

duties or drawback accruing on an entry" of merchandise. 19 C.F.R.

§ 159.1 (1998).

the dumping margins accordingly.

SKF requests that this Court order Commerce to refund the

amount of estimated antidumping duty deposits collected in excess

of the lawful amount, with interest. See SKF’s Proposed Order at

2. Although Commerce has agreed to recalculate the dumping margins

on remand by excluding U.S. zero-priced transactions from SKF’s

U.S. sales figures, Commerce maintains that it lacks the authority

to refund the excess duty deposits as requested by SKF. Def.’s

Partial Opp’n to Mot. J. Agency R. at 2. 

This Court agrees with Commerce. By statute, it is the

Customs Service that has the authority to "collect any increased or

additional duties due or refund any excess of duties deposited as

determined on a liquidation3

 or reliquidation." 19 U.S.C. §

1505(b). Commerce is only authorized to determine the dumping

margin for each entry reviewed and to issue liquidation

instructions to the Customs Service containing the amounts of

antidumping duties due or rates at which antidumping duties should

be assessed upon entries of merchandise covered by an

administrative review. 19 U.S.C. § 1675(a). Consequently, this

Court’s remand to Commerce to exclude zero-priced transactions from
Consol. Court No. 97-01-00054-S1 Page 8

SKF’s U.S. sales database ensures all the relief to which SKF is

entitled in accordance with this opinion. 

Conclusion

The Court remands this case to Commerce to exclude

transactions for which SKF received no consideration from the

margin calculations. Commerce is affirmed in all other respects.

______________________________

 NICHOLAS TSOUCALAS

 SENIOR JUDGE 

Dated: May 13, 1999

 New York, New York