                        Slip Op. 99-134

          UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
__________________________________
                                  :
RHP BEARINGS LTD., NSK BEARINGS   :
EUROPE LTD. and NSK CORPORATION, :
                                  :
                    Plaintiffs,   :
                                  :
       v.                         :   Consol. Court No.
                                  :   97-02-00217
UNITED STATES,                    :
                                  :
                    Defendant,    :
                                  :
THE TORRINGTON COMPANY,           :
                                  :
          Defendant-Intervenor.   :
_________________________________:

     Plaintiffs, RHP Bearings Ltd., NSK Bearings Europe Ltd. and
NSK Corporation (collectively, “RHP-NSK”), 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,
Singapore, and the United Kingdom; Final Results of Antidumping
Duty Administrative Reviews (“Final Results”), 62 Fed. Reg. 2081
(Jan. 15, 1997), as amended, Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof from Germany: Amended
Final Results of Antidumping Administrative Review, 62 Fed. Reg.
2130 (Jan. 15, 1997), and Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof From France, Germany,
Italy, Japan, and Singapore; Amended Final Results of
Antidumping Duty Administrative Reviews, 62 Fed. Reg. 14,391
(Mar. 26, 1997).

     Specifically, RHP-NSK claims that Commerce erred in: (1)
using aggregate data that encompasses all foreign like products
under consideration for normal value for calculating constructed
value (“CV”) profit under 19 U.S.C. § 1677b(e)(2)(A) (1994); (2)
including sample transactions that were not supported by
consideration in RHP-NSK’s United States sales database; and (3)
Consol. Court No. 97-02-00217                             Page 2


excluding imputed inventory carrying costs in the constructed
export price (“CEP”) offset for RHP-NSK when Commerce matched
CEP sales to CV.

     Torrington responds that: (1) Commerce reasonably calculated
profit for CV on the basis of the statutory preferred method of
19 U.S.C. § 1677b(e)(2)(A); (2) RHP-NSK failed to prove that the
sample transactions in question were without consideration or,
if a remand is ordered, Commerce should determine whether RHP-
NSK’s sample transactions are in fact without consideration; and
(3) Commerce should not include imputed inventory carrying costs
when comparing CEP sales to CV or, if a remand is ordered, any
deduction of such costs should be capped not to exceed actual
expenses.

     Held: RHP-NSK’s motion is denied in part and granted in
part.   The case is remanded to Commerce to: (1) exclude from
RHP-NSK’s United States sales database any sample transactions
that were not supported by consideration and to adjust the
dumping margins accordingly; and (2) include imputed inventory
carrying costs in the calculation of CEP offset for RHP-NSK when
matching CEP sales to CV.

[RHP-NSK’s motion is denied in part and granted in part. Case
remanded.]

                                     Dated: December 16, 1999

     Lipstein, Jaffe & Lawson, L.L.P. (Robert A. Lipstein,
Matthew P. Jaffe and Grace W. Lawson) 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: Mark A. Barnett, Patrick V.
Gallagher and David R. Mason, Office of the Chief Counsel for
Import Administration, United States Department of Commerce, for
defendant.

     Stewart and Stewart (Terence P. Stewart, James R. Cannon,
Jr., Wesley K. Caine, Geert De Prest and Lane S. Hurewitz) for
defendant-intervenor.
Consol. Court No. 97-02-00217                                          Page 3


                                      OPINION

       TSOUCALAS, Senior Judge: Plaintiffs, RHP Bearings Ltd., NSK

Bearings Europe Ltd. and NSK Corporation (collectively, “RHP-

NSK”), 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, Singapore, and the United Kingdom; Final Results

of Antidumping Duty Administrative Reviews (“Final Results”), 62

Fed.    Reg.   2081    (Jan.    15,    1997),   as   amended,    Antifriction

Bearings (Other Than Tapered Roller Bearings) and Parts Thereof

from     Germany:      Amended        Final     Results   of     Antidumping

Administrative Review, 62 Fed. Reg. 2130 (Jan. 15, 1997), and

Antifriction Bearings (Other Than Tapered Roller Bearings) and

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

Amended     Final     Results    of    Antidumping    Duty     Administrative

Reviews, 62 Fed. Reg. 14,391 (Mar. 26, 1997).


       Specifically, RHP-NSK claims that Commerce erred in: (1)

using aggregate data that encompasses all foreign like products

under consideration for normal value (“NV”) for calculating

constructed value (“CV”) profit under 19 U.S.C. § 1677b(e)(2)(A)
Consol. Court No. 97-02-00217                              Page 4


(1994); (2) including in RHP-NSK’s United States sales database

any   sample    transactions    that   were   not   supported   by

consideration; and (3) excluding imputed inventory carrying

costs in the constructed export price (“CEP”) offset for RHP-NSK

when it matched CEP sales to CV.


      Torrington responds that: (1) Commerce reasonably calculated

profit for CV on the basis of the statutory preferred method of

19 U.S.C. § 1677b(e)(2)(A); (2) RHP-NSK failed to prove that the

sample transactions in question were without consideration or,

if a remand is ordered, Commerce should determine whether RHP-

NSK’s sample transactions are in fact without consideration; and

(3) Commerce should not include imputed inventory carrying costs

when comparing CEP sales to CV or, if a remand is ordered, any

deduction of such costs should be capped not to exceed actual

expenses.


      The Court will address each of these arguments in turn.



                            BACKGROUND

      This case concerns the sixth administrative review of the

antidumping duty order on antifriction bearings (other than

tapered roller bearings) and parts thereof (“AFBs”) imported
Consol. Court No. 97-02-00217                              Page 5


from the United Kingdom during the review period of May 1, 1994

through April 30, 1995.1     Commerce published the preliminary

results of the subject review on July 8, 1996.   See Antifriction

Bearings (Other Than Tapered Roller Bearings) and Parts Thereof

from France, Germany, Italy, Japan, Romania, Singapore, Thailand

and the United Kingdom; Preliminary Results of Antidumping Duty

Administrative Reviews, Termination of Administrative Reviews,

and Partial Termination of Administrative Reviews (“Preliminary

Results”), 61 Fed. Reg. 35,713.    On January 15, 1997, Commerce

published the Finals Results at issue here.   See 62 Fed. Reg. at

2081.



                           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

    The Court will uphold Commerce’s final determination in an



    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) (“URAA”). See Torrington Co. v. United States, 68 F.3d
1347, 1352 (Fed. Cir. 1995) (citing URAA § 291(a)(2), (b)
(noting effective date of URAA amendments)).
Consol. Court No. 97-02-00217                                               Page 6


administrative review 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).



I.      Substantial Evidence Test

      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)).              Substantial evidence “is

something      less   than   the   weight   of    the   evidence,      and     the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence.”                       Consolo v.

Federal Maritime Comm’n, 383 U.S. 607, 620 (1966) (citations

omitted).       Moreover,     “[t]he    court    may    not    substitute      its

judgment for that of the [agency] when the choice is ‘between

two   fairly    conflicting    views,    even    though       the   court   would

justifiably have made a different choice had the matter been

before it      de novo.’”      American Spring Wire Corp. v. United

States, 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984) (quoting

Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.
Consol. Court No. 97-02-00217                                           Page 7


1983) (quoting, in turn, Universal Camera, 340 U.S. at 488)).



II.        Chevron Two-Step Analysis

      To     determine     whether      Commerce’s     interpretation      and

application of the antidumping statute is “in accordance with

law,” the Court must undertake the two-step analysis prescribed

by Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984).              Under the first step,      the Court

reviews Commerce’s construction of a statutory provision to

determine whether “Congress has directly spoken to the precise

question at issue.”      Id. at 842.         “ To ascertain whether Congress

had an intention on the precise question at issue, [the Court]

employ[s] the ‘traditional tools of statutory construction.’”

Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir.

1998) (citing Chevron, 467 U.S. at 843 n.9).                  “The first and

foremost ‘tool’ is the statute’s text, giving it its plain

meaning.       Because     a    statute’s      text   is   Congress’s   final

expression of its intent, if the text answers the question, that

is the end of the matter.”         Id. (citations omitted).       Beyond the

statute’s text, the tools of statutory construction “include the

statute’s     structure,       canons   of    statutory    construction,   and

legislative history.”          Id. (citations omitted); but see Flora
Consol. Court No. 97-02-00217                                                         Page 8


Trade Council v. United States, 23 CIT __, 41 F. Supp. 2d 319,

323    n.6    (1999)    (noting       that    “[n]ot      all    rules       of   statutory

construction rise to the level of a canon, however”) (citation

omitted).


       If, after employing the first prong of Chevron, the Court

determines that the statute is silent or ambiguous with respect

to    the    specific     issue,      the    question      for    the       Court    becomes

whether       Commerce’s construction of the statute is permissible.

Chevron, 467 U.S. at 843.              Essentially, this is an inquiry into

the reasonableness of Commerce’s interpretation.                              See Fujitsu

Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996).

Provided       Commerce    has     acted     rationally,         the    Court       may   not

substitute its judgment for the agency’s.                        See IPSCO, Inc. v.

United States, 965 F.2d 1056, 1061 (Fed. Cir. 1992); see also

Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed. Cir.

1994)       (holding    that     “a    court       must   defer        to    an     agency’s

reasonable interpretation of a statute even if the court might

have    preferred       another”).           The    “[C]ourt      will       sustain      the

determination if it is reasonable and supported by the record as

a     whole,     including       whatever          fairly       detracts          from    the

substantiality of the evidence.”                     Negev Phosphates, Ltd. v.

United States Dep’t of Commerce, 12 CIT 1074, 1077, 699 F. Supp.
Consol. Court No. 97-02-00217                             Page 9


938, 942 (1988) (citations omitted).     “In determining whether

Commerce’s interpretation is reasonable, the Court considers,

among other factors, the express terms of the provisions at

issue, the objectives of those provisions and the objectives of

the antidumping scheme as a whole.”     Mitsubishi Heavy Indus.,

Ltd. v. United States, 22 CIT __, __, 15 F. Supp. 2d 807, 813

(1998)).



                           DISCUSSION

I.   Calculation of Profit for Constructed Value

     A.    Statutory and Factual Background

     An antidumping duty is imposed upon imported merchandise

when (1) Commerce determines such merchandise is sold or likely

to be sold in the United States at less than fair value (“LTFV,”

i.e., at a price which is lower than the price at which the

merchandise is sold in the country of exportation or to a third

country), and (2) the International Trade Commission determines

that domestic industry is materially injured or threatened with

material injury, or the establishment of an industry in the

United States is materially retarded, by reason of imports of

the subject merchandise or by reason of the LTFV sales or

likelihood of LTFV sales of that merchandise for importation.
Consol. Court No. 97-02-00217                                      Page 10


See 19 U.S.C. § 1673 (1994).           In calculating the antidumping

duty, Commerce compares the price of the imported merchandise in

the United States ( i.e., export price (“EP”) or CEP)2 to its NV.

See id.       The dumping margin is “the amount by which the [NV]

exceeds the [EP] or [CEP] of the subject merchandise.”                     19

U.S.C. § 1677(35) (1994).


       NV is the comparable price for a product like the imported

merchandise when first sold (generally, to unaffiliated parties)

“for       consumption   in   the   exporting   country,   in    the   usual

commercial quantities and in the ordinary course of trade and,

to the extent practicable, at the same level of trade as the

export      price   or   constructed   export   price.”     19    U.S.C.    §

1677b(a)(1)(B)(i) (1994).           Where home market sales of such

foreign like product are not available or usable as a basis for

determining NV, Commerce may measure dumping by comparing the EP

or CEP to NV based on either: (1) sales in a third-country

market, that is, sales of the foreign like product to a country

other than the home market or the United States, see 19 U.S.C.

§ 1677b(a)(1)(B), (C); or (2) CV of the imported merchandise,


       2Typically, Commerce uses the export price when the
foreign exporter sells directly to an unrelated United States
purchaser. See 19 U.S.C. § 1677a(a) (1994). Commerce uses the
constructed export price when the foreign exporter sells through
a related party in the United States. See id. § 1677a(b).
Consol. Court No. 97-02-00217                                      Page 11


see 19 U.S.C. § 1677b(a)(4),3 which is calculated pursuant to 19

U.S.C. § 1677b(e) (1994).


    Profit is a component in the calculation of CV. 4               See 19

U.S.C. § 1677b(e)(2)(A).        Under current antidumping law, as

amended by the Uruguay Round Agreements Act (“URAA”), Pub. L.

No. 103-465, 108 Stat. 4809 (1994), the preferred method for

determining profit for CV is to add to CV “the actual amounts

incurred and realized by the specific exporter or producer being

examined in the investigation or review . . . for profits, in

connection   with   the    production   and   sale   of   a   foreign   like

product, in the ordinary course of trade, for consumption in the

foreign country[.]”       19 U.S.C. § 1677b(e)(2)(A).         The Statement




    3     See Statement of Administrative Action (“SAA”)
accompanying the URAA, H.R. Doc. No. 103-316, at 839 (1994),
reprinted in 1994 U.S.C.C.A.N. 3773, 4175 (stating that
“[c]onstructed value is used . . . for normal value where home
market sales of the merchandise in question are either
nonexistent, in inadequate numbers, or inappropriate to serve as
a benchmark for a fair price, such as where sales are
disregarded because they are sold at below-cost prices”).
    4   See SAA at 839 (“Because constructed value serves as a
proxy for a sales price, and because a fair sales price would
recover [selling, general and administrative (“SG&A”)] expenses
and would include an element of profit, constructed value must
include an amount for SG&A expenses and for profit.”).
Consol. Court No. 97-02-00217                                           Page 12


of Administrative Action5 (“SAA”) accompanying the URAA provides

that       Commerce   may   disregard   sales   that   it   considers    to   be

outside the ordinary course of trade, that is, “Commerce may

ignore sales that it disregards as a basis for normal value,

such as those disregarded because they are made at below-cost

prices.” H.R. Doc. No. 103-316, at 839 (1994), reprinted in 1994

U.S.C.C.A.N. 3773, 4175-76; see 19 U.S.C. § 1677(15) (1994); 19

U.S.C. § 1677b(b)(1) (1994).


       In promulgating its amended regulation 19 C.F.R. § 351.405

to the URAA, which deals with calculating NV based on CV,

Commerce determined that it would use aggregate figures of

foreign like products to calculate CV profit under the preferred

methodology of 19 U.S.C. § 1677b(e)(2)(A).                  See Antidumping

Duties; Countervailing Duties; Proposed Rule, 61 Fed. Reg. 7308,



       5 The SAA represents “an authoritative expression by the
Administration concerning its views regarding the interpretation
and application of the Uruguay Round agreements.” SAA at 656.
“It   is   the   expectation  of   the  Congress   that   future
Administrations will observe and apply the interpretations and
commitments set out in this Statement.”         Id. (quoted in
Delverde, SrL v. United States, 21 CIT __, __, 989 F. Supp. 218,
229-30 n.18 (1997)); see also 19 U.S.C. § 3512(d) (1994) (“The
statement of administrative action approved by the Congress ...
shall be regarded as an authoritative expression by the United
States concerning the interpretation and application of the
Uruguay Round Agreements and this Act in any judicial proceeding
in which a question arises concerning such interpretation or
application.”).
Consol. Court No. 97-02-00217                                Page 13


7335    (Feb.   27,   1996)   (“Proposed   Regulations”).   Commerce

reasoned as follows:

       The Department’s practice had been to use aggregate
       figures [for selling, general and administrative
       expenses (“SG&A”) and profit].       Notably, section
       773(e)(1)(B) [i.e., 19 U.S.C. § 1677b(e)(1)(B)] of the
       pre-URAA statute provided for calculation of an amount
       for profit and SG&A “equal to that usually reflected
       in sales of merchandise of the same general class or
       kind as merchandise under consideration” (emphasis
       added). In comparison, section 77[3](e)(2)(A) [i.e.,
       19 U.S.C. § 1677b(e)(2)(A)] of the amended Act
       provides for use of the actual amounts incurred and
       realized for profit and SG&A “in connection with the
       production and sale of a foreign like product.” The
       use of “a” arguably could be interpreted to mean a
       particular model. The SAA, on the other hand, refers
       to actual amounts incurred, “in selling the particular
       merchandise in question (foreign like product).” SAA,
       at 839. This language supports a view that the use of
       “a” was not intended to overturn our prior practice of
       relying on aggregate figures for profit and SG&A.
       Moreover, if “a” were to be interpreted literally, the
       Department would have the discretion to pick and
       choose the sale of the foreign like product from which
       profit and SG&A would be taken.    This clearly would
       undermine the predictability of the statute.     Given
       these distinctions, the amended Act arguably provides
       for a narrower basis for the calculation of profit and
       SG&A than did the prior statute.       Therefore, the
       Department intends to calculate profit and SG&A based
       on an average of the profits of foreign like products
       sold in the ordinary course of trade.

Id.


       If the statutory preferred method cannot be followed under

19 U.S.C. § 1677b(e)(2)(A), “either because there are no home

market sales of the foreign like product or because all such
Consol. Court No. 97-02-00217                                     Page 14


sales are at below-cost prices,” then Commerce may calculate CV

profit   using   one    of    three      alternative    methods    in    §

1677b(e)(2)(B). 6      SAA   at   840.     The   SAA   provides   that   §

1677b(e)(2)(B) “does not establish a hierarchy or preference

among these alternative methods.”         Id.


     In this case, Commerce matched United States models to NV

models according to the following methodology, in order of

preference: (1) it first looked for an identical home market

model; (2) if no identical match was found, it matched by family

designation (i.e., similar match); and (3) for those United

States models for which no identical or similar match was found,

the CV of the United States model was used as the basis for NV.


     6  If actual data are not available with respect to the
amounts described in 19 U.S.C. § 1677b(e)(2)(A) (1994), then §
1677b(e)(2)(B) provides one of the following three alternative
methods for calculating amounts for (SG&A expenses and) profit
for purposes of constructed value:

     (1) actual amounts incurred or realized by the same
     producer on home market sales of the same general
     category of products; (2) the weighted-average of
     actual   amounts  incurred   or   realized  by   other
     investigated companies on home market sales in the
     ordinary course of trade (i.e., profitable sales) of
     the foreign like product; or (3) any other reasonable
     method, provided that the amount for profit does not
     exceed the profit normally realized by other companies
     on home market sales of the same general category of
     products (the so-called profit cap).

SAA at 840.
Consol. Court No. 97-02-00217                                                 Page 15


See   NSK-RHP      Bearings--Preliminary              Results      Analysis   Memo--

Antifriction       Bearings    from       the        U.K.--Sixth     Administrative

Review,     5/1/94-4/30/95,     A-412-801,            Proprietary     Doc.    No.    12

(Fiche 71), at 2 (July 2, 1996).


      Commerce calculated profit for CV using the statutorily

preferred     methodology      of    19     U.S.C.      §   1677b(e)(2)(A).         See

Preliminary Results, 61 Fed. Reg. at 35,718.                        In particular,

Commerce calculated CV profit for each respondent by aggregating

each respondent’s profits for the foreign like products sold in

the ordinary course of trade.


          In the Final Results, respondents, including RHP-NSK, 7

argued      that    Commerce        erred       in     applying      19   U.S.C.      §

1677b(e)(2)(A) because this section requires Commerce first try

to calculate CV profit for imported merchandise based on profit

amounts on the sales of the imported merchandise’s ‘foreign like

product,’ which did not exist here when NV was based on CV.                         See

62 Fed. Reg. at 2113.

      7 Although the “Profit for Constructed Value” section of
the Final Results refer only to arguments of “NSK,” that is, NSK
Corporation, see 62 Fed. Reg. at 2113, as abbreviated at 62 Fed.
Reg. at 2085, the Court assumes that “NSK” collectively refers
to RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK
Corporation, as noted in plaintiffs’ “General Issues Rebuttal
Brief” at 1, received after the Preliminary Results by Commerce
on Aug. 12, 1996.
Consol. Court No. 97-02-00217                                             Page 16



      Specifically, respondents requested that Commerce apply the

same definition of “foreign like product” used for home market

price calculations to determine CV profit.                     In other words,

respondents requested that if the foreign like product is an

identical bearing, CV profit should be based on profit amounts

for above-cost identical bearing matches, or alternatively, if

there is no identical model, CV profit should be based on the

profit amounts for above-cost bearing family matches.                        Where

there are no home market sales of identical or family bearings,

respondents asserted that under 19 U.S.C. § 1677b(e)(2)(A) there

can be no profits on sales of the foreign like product in the

home market in the ordinary course of trade.                        Respondents,

therefore, argued that since there were no usable sales of

“foreign like product” when Commerce used CV to calculate NV,

the only option for Commerce was to calculate CV profit on the

basis of one of the three alternatives in § 1677b(e)(2)(B).                    See

id.   Although the three alternative methods are not listed in

order of preference, respondents claimed that there is a strong

preference     for    using      the     first        alternative    CV     profit

calculation,       that    is,   “the    use     of    company-specific       data

regarding    the    same   general      category       of   merchandise.”      Id.

(citing 19 U.S.C. § 1677b(e)(2)(B)(i)).
Consol. Court No. 97-02-00217                                             Page 17



       Commerce disagreed with respondents that it did “not have

any ‘foreign like products’ for use in calculating CV profit”

and,   therefore,     it   rejected     their    suggested       model-matching

methodology    for    calculating       CV    profit     under    19    U.S.C.   §

1677b(e)(2)(A).            Id.    Consistent           with      its    statutory

interpretation       and    reasoning        contained    in      the    Proposed

Regulations regarding application of § 1677b(e)(2)(A), Commerce

found that:

       Respondents’ definition of the term “foreign like
       product” is overly narrow with respect to its use in
       the CV-profit provisions. In applying the “preferred”
       method for calculating profit (as well as SG&A) under
       section    773(e)(2)(A)     [i.e.,     19     U.S.C.    §
       1677b(e)(2)(A)], the use of aggregate data that
       encompasses   all    foreign    like   products     under
       consideration   for    NV   represents     a   reasonable
       interpretation of the statute and results in a
       practical measure of profit that we can apply
       consistently   in   each   case.     By    contrast,   an
       interpretation of section 773(e)(2)(A) that would
       result in a method based on varied groupings of
       foreign like products, each defined by a minimum set
       of matching criteria shared with a particular model of
       the subject merchandise, would add an additional layer
       of   complexity   and    uncertainty    to   antidumping
       proceedings without generating more accurate results.
       It would also make the statutorily preferred CV-profit
       methodology inapplicable to most cases involving CV.

Id.
Consol. Court No. 97-02-00217                                        Page 18


      B.        Contentions of the Parties

           1.       RHP-NSK’s Contentions

      RHP-NSK    contends   that   Commerce    defined      “foreign    like

product” for purposes of the CV profit calculation in a manner

contrary to the statutory definition of the term and well-

established agency practice.         See Pls.’ Mem. Supp. Mot. J.

Agency R. at 4.      In particular, RHP-NSK asserts that 19 U.S.C.

§ 1677b(e)(2)(A) requires that Commerce first try to calculate

CV   profit   for   imported   merchandise    based    on   actual   profit

amounts incurred in the home market production and sale of

“foreign like product,” that is, model or family products, that

match each bearing model sold in the United States.             See id. at

6, 15.


      RHP-NSK notes that 19 U.S.C. § 1677(16) (1994) defines

“foreign like product” by establishing three distinct categories

of products for model-matching purposes.              See id. at 8.      The

first category of merchandise is identical merchandise, the next

category is nonidentical merchandise made by the same producer

in the same country and is similar in value to the merchandise

under investigation, and the third category is merchandise made

by the same producer in the same country and used for the same

purposes as the merchandise under investigation.             See id.    RHP-
Consol. Court No. 97-02-00217                                                Page 19


NSK    asserts     that   once    Commerce     finds      merchandise        in     one

category, merchandise in the subsequent categories can never be

considered    foreign     like     product    because     §   1677(16)       directs

Commerce to determine foreign like product in the first of the

listed categories.        See id. § 1677(16); see also Federal-Mogul

Corp. v. United States, 20 CIT __, __, 918 F. Supp. 386, 396

(1996); Cemex, S.A. v. United States, 133 F.3d                     897, 903 (Fed.

Cir. 1998) (noting same for pre-URAA § 1677(16)).                            RHP-NSK

argues, therefore, that since the plain language of § 1677(16)

clearly creates a descending hierarchy for selecting foreign

like    product,    Chevron      dictates    that   the    Court,       as   well    as

Commerce, must give effect to the unambiguously expressed intent

of     Congress    and,   thus,     the     reasonableness         of    Commerce’s

interpretation of 19 U.S.C. § 1677b(e)(2)(A) is irrelevant.                         See

id. at 8-10.


       RHP-NSK also argues that Commerce erred in claiming that in

this review it followed its past practice of using aggregate

figures for calculating CV profit.              See Pls.’ Reply Mem. Supp.

Mot. J. Agency R. at 4.           RHP-NSK notes that prior to the URAA,

the antidumping law required Commerce to base CV profit on “an

amount for . . . profit equal to that usually reflected in sales

of    merchandise    of   the     same    general   class     or    kind     as     the
Consol. Court No. 97-02-00217                                          Page 20


merchandise under consideration.”               Id. (quoting 19 U.S.C. §

1677b(e)(1)(B) (1988)).        Citing several administrative reviews,

RHP-NSK asserts that after the enactment of the URAA, Commerce

continually rejected requests that it base CV profit on reported

home market sales because the agency “did not consider these

sales representative of the profit for the general class or kind

of merchandise.”      Id. (citations omitted).          RHP-NSK, therefore,

argues that contrary to Commerce’s claim, the agency in prior

reviews repudiated the type of CV profit calculation performed

in this review.      See id.


      RHP-NSK also maintains that the legislative history of the

URAA confirms that Commerce should calculate CV profit on a

model or family basis when using the preferred methodology under

19 U.S.C. § 1677b(e)(2)(A).          See Pls.’ Mem. Supp. Mot. J. Agency

R.   at   10.     RHP-NSK    notes    that   when   Commerce       revised   its

regulations to conform to the URAA, in particular 19 C.F.R. §

351.405,    the   agency     specified    it    would   use   “an    aggregate

calculation that encompasses all foreign like products under

consideration       for     normal    value.”        Antidumping       Duties;

Countervailing Duties; Final rule (“Final Regulations”), 62 Fed.

Reg. 27,296, 27,359 (May 19, 1997).            RHP-NSK further notes that

Commerce    found    this    method    for     calculating    CV    profit    as
Consol. Court No. 97-02-00217                                                 Page 21


“consistent with the Department’s method of computing SG&A and

profit under the pre-URAA version of the statute, and, while the

URAA revised certain aspects of the SG&A and profit calculation,

we    do   not    believe     that    Congress      intended     to    change    this

particular aspect of our practice.”                 Id.     Nevertheless, RHP-NSK

claims that contrary to Commerce’s finding, the URAA legislative

history makes clear that the current preferred methodology for

calculating CV profit is not consistent with Commerce’s pre-URAA

methodology.       See Pls.’ Mem. Supp. Mot. J. Agency R. at 10.                    The

URAA legislative history, according to RHP-NSK, first recites

the    pre-URAA    law,     19   U.S.C.   §   1677b(e)(1)(B)          (1988),    with

reference to profit amounts based on the same general class or

kind as the merchandise under investigation, then announces that

19 U.S.C. § 1677b(e)(2)(A) (1994) “establishes new methods of

calculating SG&A expenses and profits consistent with methods

provided for in the [URAA].”            Id. (quoting SAA at 839) (emphasis

added).          RHP-NSK      specifically          notes     that     the    new     §

1677b(e)(2)(A) “establishes as a general rule that Commerce will

base   amounts     of    SG&A    expenses     and    profits    only    on    amounts

incurred and realized in connection with sales in the ordinary

course     of    trade   of     the   particular     merchandise       in    question

(foreign like product).”               Id. at 10-11 (quoting SAA at 839)
Consol. Court No. 97-02-00217                                                     Page 22


(emphasis added).             RHP-NSK, therefore, argues that the URAA

legislative history directly contradicts Commerce’s position and

demonstrates Congress’ clear intent to alter the preferred basis

on which Commerce calculates CV profit.                        See id. at 11.


       RHP-NSK further notes that after taking into account changes

in nomenclature of the URAA, the first alternative methodology

for    CV    profit,     19    U.S.C.    §     1677b(e)(2)(B)(i),            is   nearly

identical to the pre-URAA CV profit methodology, 19 U.S.C. §

1677b(e)(1)(B), except that sales at issue do not have to be in

the ordinary course of trade.                   See id. at 11.             RHP-NSK also

notes that the URAA legislative history provides that “[w]ith

respect to alternative (1), this methodology is consistent with

the    existing    practice      of   relying        on   a     producer’s    sales      of

products in the same ‘general class or kind of merchandise.’”

See id. (quoting SAA at 840).                  RHP-NSK, therefore, maintains

that    if    §   1677b(e)(1)(B)        is     meant      to    be   consistent        with

Commerce’s pre-URAA practice, then necessarily § 1677b(e)(2)(A)

is meant to be different.             See id.


       In    addition,    contrary      to     Commerce’s         suggestion      in    the

Proposed      Regulations      that     “use    of    ‘a’      was   not   intended      to

overturn [the agency’s] practice of relying on aggregate figures
Consol. Court No. 97-02-00217                                            Page 23


for profit and SG&A,” RHP-NSK claims that the use of word “a” in

the   CV   profit   provision      does   not    obliterate       the   explicit

hierarchy for identifying “foreign like product” as established

by 19 U.S.C. § 1677(16).      See id. at 12.         RHP-NSK argues that it

makes no difference if the word “a” means “any,” as in “any

foreign    like   product,”   or    “the,”      as   in   “the    foreign   like

product,” because the CV profit calculation is the same, that

is, it must be based on a “foreign like product,” not on an

aggregate of products, some of which may qualify as foreign like

product, but most would not.         See Pls.’ Reply Mem. Supp. Mot. J.

Agency R. at 5.


      RHP-NSK also asserts that if Commerce is correct that the

term “foreign like product” permits it to use “an aggregate

calculation [for CV profit] that encompasses all foreign like

products under consideration for normal value,” then it must

also be the case that NV or cost of production (“COP”) may be

based on an aggregate price or cost, as appropriate, for all

products under consideration for NV.             Pls.’ Mem. Supp. Mot. J.

Agency R. at 14 (quoting 62 Fed. Reg. at 27,359).                        RHP-NSK

appears to assert that such a conclusion is indisputably wrong

because    extending   Commerce’s         definition      of     “foreign   like

product” to other key antidumping provisions would upend the
Consol. Court No. 97-02-00217                             Page 24


entire legal framework of the antidumping statute.     See id. at

13-14.   RHP-NSK claims that it is equally indisputable that 19

U.S.C. § 1677b(e)(2)(A) does not permit Commerce to calculate CV

profit based on the aggregate profit for all sales in the above-

cost foreign sales database.    See id. at 14-15.


    NSK–RHP requests that the Court remand the Final Results to

Commerce to calculate CV profit based on actual profit amounts

incurred in the home market production and sale of model or

family products that match each bearing model sold in the United

States or, in the absence of such profit data, to use one of the

alternative profit methodologies specified under 19 U.S.C. §

1677b(e)(2)(B).   See id. at 15.



          2.      Commerce’s Contentions

    In response, Commerce asserts that it applied a reasonable

interpretation of 19 U.S.C. § 1677b(e)(2)(A) and properly based

CV profit for each respondent, including RHP-NSK, upon the

actual profit data of that respondent.   See Def.’s Partial Opp’n

to Mot. J. Agency R. at 17.     Although Commerce recognizes that

19 U.S.C. § 1677(16) establishes a descending hierarchy that

articulates preferences for the type of foreign like product the

agency must select for matching purposes, it, nevertheless,
Consol. Court No. 97-02-00217                                         Page 25


claims, in essence,         that where the subject merchandise is

complex, encompassing numerous characteristics for matching, the

foreign like product typically embraces more that one of the §

1677(16) categories.      See id. at 10.    Commerce contends that the

term “foreign like product” is not limited to the product which

is    “identical”    (i.e.,   “model-specific”)       or    “like”    (i.e.,

“similar to”) the subject merchandise, because if neither is

available, merchandise of the same “general class or kind” as

the   subject   merchandise    will   qualify   as    the    foreign     like

product.    See id. at 10-11.


      Commerce additionally claims that there is no indication by

referencing     to   “a   foreign   like   product”    in    19   U.S.C.    §

1677b(e)(2)(A), Congress intended that CV profit be calculated

based on merchandise that is identical or similar to the subject

merchandise.    See id. at 11. Commerce also notes that CV becomes

available for NV only when identical or similar home market

merchandise is not available for comparison with United States

sales either because there are no such home market sales or they

are below-cost and, thereby, are disregarded.          See id.       Commerce

maintains that Congress could not have intended to limit the CV

profit calculation under § 1677b(e)(2)(A) to profit incurred in

the production or sale of merchandise identical or similar to
Consol. Court No. 97-02-00217                                        Page 26


the subject merchandise because, in that event, the preferred

method of § 1677b(e)(2)(A) would rarely be applicable.               See id.

Commerce, therefore, argues that since there were sales of

foreign like products that were not disregarded and actual

profit amounts were realized by each respondent in connection

with these sales, Commerce properly applied the preferred method

by aggregating those profits.           See id. at 13.           To apply an

alternative methodology where there are sales of the foreign

like product, according to Commerce, would virtually eliminate

the statutory preference to calculate CV profit based upon §

1677b(e)(2)(A).      See id.


       Commerce further notes that in the Proposed Regulations, see

61 Fed. Reg. at 7335, it properly determined that (1) the

language of 19 U.S.C. § 1677b(e)(2)(A) is unclear; and (2) the

URAA   legislative    history   does    not   show   that   the    intent   of

Congress was to require Commerce to make separate CV profit

calculations for identical bearings or bearing families, based

upon RHP-NSK’s narrow interpretation of the term “foreign like

product,” see id. at 11-15.         Commerce, therefore, argues that

its    statutory   interpretation      of   calculating     CV    profit,   as

reflected in its Proposed Regulations and the Final Results, was

reasonable.    See id. at 12.
Consol. Court No. 97-02-00217                                       Page 27



    Moreover, Commerce disagrees with RHP-NSK’s assertion that

Commerce ignored the explicit hierarchy of           19 U.S.C. § 1677(16)

by calculating CV profit based on profits for products from all

§ 1677(16) categories.        See id. at 15.      Citing U.H.F.C. Co. v.

United States, 916 F.2d 689 (Fed. Cir. 1990) (a pre-URAA case),

and Toyota Motor Sales, U.S.A., Inc. v. United States, 22 CIT

__, 15 F. Supp. 2d 872 (1998) (a post-URAA case), Commerce

argues that it is simply following its practice established

under pre- and post-URAA law of applying the categories set

forth    under   §   1677(16),     which   defines    “such   or    similar”

merchandise (now “foreign like product”), depending upon the

particular context.       See Def.’s Partial Opp’n to Mot. J. Agency

R. at 15-17.


    Because it is following established practice, Commerce also

argues   that    there   is   no   merit   to   RHP-NSK’s   claim   that   if

Commerce’s interpretations of the term “foreign like product”

and 19 U.S.C. § 1677b(e)(2)(A) are correct, then Commerce must

also use an aggregate price in calculating NV or COP.               See id.

at 17.    Similarly, contrary to RHP-NSK’s claim that Commerce

expanded the meaning of the term “foreign like product” based

upon the fact § 1677b(e)(2)(A) uses the term “a foreign like
Consol. Court No. 97-02-00217                                                     Page 28


product”       rather   than   “the    foreign        like   product”        or    simply

“foreign like product,” Commerce claims that it merely set forth

its statutory interpretation that the word “a” was not intended

to overturn its prior practice of aggregating figures for profit

and SG&A.       See id.


      Commerce, therefore, argues that the Court should sustain

its   CV       profit   determination       because         it   is    supported       by

substantial evidence and in accordance with law.                      See id. at 17-

18.



               3.       Torrington’s Contentions

      In support of Commerce, Torrington first contends that 19

U.S.C.     §     1677b(e)(2)(A)       on   its       face    permits     a    flexible

application of “foreign like product” in CV profit calculations.

See Torrington’s Resp. to Pls.’ Mem. Supp. Mot. J. Agency R. at

7.       Torrington       asserts      that      §    1677b(e)(2)(A)’s             plural

expression, “profits,” and flexible expression, “in connection

with,” carries the clear meaning and intent that Commerce may

calculate CV profit from multiple sales of relevant merchandise

and by reference to more than one bearing “family,” so long as

the models in the calculation are reasonably “connected” to the

particular model for which CV is being determined.                                See id.
Consol. Court No. 97-02-00217                                        Page 29


Torrington, therefore, argues that § 1677b(e)(2)(A) does not

limit Commerce to any particular narrow product-group.               See id.


      Torrington     also     contends    that    rules      of    statutory

construction      necessitates      Commerce’s    broad      and    flexible

interpretation of 19 U.S.C. § 1677b(e)(2)(A).                See id. at 8.

Torrington first notes that § 1677b(e)(2)(A) is the general rule

and   preferred    basis     for   determining   CV    profit.      See   id.

Torrington also notes that in most cases, CV forms NV only when

a   respondent     reports    insufficient   sales      of   “foreign     like

product,” as the term is narrowly understood, in the ordinary

course of trade.      See id.      Accordingly, Torrington claims that

if the Court construes § 1677b(e)(2)(A) narrowly in the CV

profit context, it will effectively negate the general rule and

preferred basis for CV profit calculations.            See id.     In support

of its claim, Torrington asserts that (1) “courts [must] strive

to give effect to all provisions in a statute, so as not to

render a provision inoperative,” id. (citing United States v.

Menasche, 348 U.S. 528, 538-39 (1955)); and (2) courts must also

“avoid giving statutes manifestly absurd interpretations which

literal readings would otherwise support,” id. (citing United

States v. Brown, 333 U.S. 18, 27 (1948)).             Torrington argues if

the Court were to adopt RHP-NSK’s position for calculating CV
Consol. Court No. 97-02-00217                             Page 30


profit, the Court would clearly violate both of these rules.

See id.


    Torrington further contends that the crux of RHP-NSK’s

argument is that the term “foreign like product” under          19

U.S.C. § 1677(16) must be applied with rigid consistency in two

different contexts, namely, those for (1) calculating price-

based NV from home market sales of comparable merchandise, and

(2) calculating CV profit.   See id. at 10.   Torrington disagrees

with RHP-NSK, arguing first that “a determination . . . can be

satisfactorily made” language of 19 U.S.C. § 1677(16) clearly

provides that Commerce has discretionary authority to select

among the categories of identical and similar merchandise to

reach a satisfactory determination.    See id.    In other words,

Commerce has the authority to make a satisfactory determination

of what is encompassed by “foreign like product” and, therefore,

it acted reasonably when it based CV profit on the sales of all

foreign like products.   See id. at 10-11, 13.


    Torrington also asserts that Commerce reasonably concluded

that “foreign like product” can differ by context, that is,

depending upon whether the dumping comparison is based on (1)

price-to-price, or (2) price-to-CV.      See id. at 11.    First,
Consol. Court No. 97-02-00217                                        Page 31


Torrington notes that when there are adequate home market sales

made at above-cost prices of identical or similar merchandise,

there is no need to determine profit, and the application of

“foreign like product” turns to model-matching issues.               See id.

Under the model-matching methodology, Torrington notes that when

price-to-price comparison is not between identical merchandise,

a   “satisfactory”      determination     of     “foreign   like    product”

dictates finding the most nearly similar product in order to

minimize   the   need   for   adjusting     NV   for   difference    in   cost

attributable to differences in physical characteristics of the

merchandise compared, pursuant to 19 U.S.C. § 1677b(a)(6)(C)(ii)

(1994).    See id. at 11, 13.     Otherwise, according to Torrington,

if Commerce determined that similar merchandise encompassed many

AFB families, it would then have a rather difficult task of

making numerous and highly complex adjustments, on a part-by-

part   basis,    and   then   aggregating      those   adjusted    prices   to

determine final NVs.          See id. at 11-12.         Torrington thereby

contends that, in the context of model-matching methodology,

Commerce might reasonably give the term “foreign like product”

a narrow and pragmatic application to minimize such complex

adjustments.     See id. at 12.


       On the other hand, Torrington notes that CV profit is
Consol. Court No. 97-02-00217                                         Page 32


invoked only when there are no available or usable home market

sales of identical or similar merchandise in the ordinary course

of trade.      See id.   Moreover, Torrington notes that Commerce

does not use an absolute price in a home-market sale for CV

profit; rather, it calculates an average profit rate (i.e.,

based on total profits earned by total costs of goods sold)

that, unlike a price for a particular bearing model, does not

have to be adjusted for differences in physical characteristics

between merchandise being compared.           See id.     Torrington claims

that Commerce reasonably assumes that the profit rate earned on

home market sales of all “foreign like products” is the rate

that would have been earned for sales of the identical product,

if sold at home in the ordinary course of trade.                See id. at 12-

13.    Thus,     Torrington    asserts     that       “less     precision   in

comparability is required to determine an appropriate CV profit

rate than to determine appropriate models to compare.”                 Id. at

13.   Torrington, therefore, argues that, in the context of CV

profit calculations, Commerce must give the term “foreign like

product” a broader application so that “a determination . . .

[could]   be    satisfactorily       made,”   that    is,   a    satisfactory

determination     on   the   basis    of   sales     of   all   foreign   like

products.      See id. at 12-13 (quoting 19 U.S.C. § 1677(16)).
Consol. Court No. 97-02-00217                                          Page 33



       Torrington also argues, inter alia, that, contrary to RHP-

NSK’s suggestion that the Court interpret the term “a foreign

like product” of 19 U.S.C. § 1677b(e)(2)(A) in all contexts as

referring to a singular class of identical merchandise or to a

singular bearing family, the selection of the word “a” in the

statute commonly means “any,” and can be “applied to more than

one    individual     object;   whereas   ‘the’    is    an   article    which

particularizes the subject spoken of.”                  Id. at 14 (quoting

Allstate Ins. Co. v. Foster, 693 F. Supp. 886, 889 (D.Nev. 1988)

(quoting, in turn, Black’s Law Dictionary, 1, 1324 (5th ed.

1979)).       In addition, Torrington claims that judicial precedent

supports construing the word “a” in a broader manner.                  See id.

at    14-15    (citations   omitted).     Consistent      with   the    common

meaning and judicial precedent, Torrington asserts that the

Court should sustain Commerce’s interpretation that “a foreign

like product” can mean “any” such product and all such products

combined       for   purposes   of   calculating    CV    profit   under     §

1677b(e)(2)(A).       See id. at 15.



       C.     Analysis

       The issue primarily presented by RHP-NSK is whether 19

U.S.C. § 1677b(e)(2)(A) requires Commerce to calculate CV profit
Consol. Court No. 97-02-00217                                            Page 34


based on actual profit amounts incurred in the home market

production and sale of model or family bearings that match each

bearing model sold in the United States or, in the absence of

such       profit   data,     to    use   one   of   the   alternative    profit

methodologies in § 1677b(e)(2)(B).


       Section 1677b(e)(2)(A) specifically provides that Commerce

must base CV profit on “actual amounts incurred and realized .

. . in connection with the production and sale of a foreign like

product.”        Similarly, the legislative history of the statute

clarifies “that Commerce will base . . . profit only on amounts

incurred and realized in connection with sales in the ordinary

course      of   trade   of   the    particular      merchandise   in   question

(foreign like product).”             SAA at 839.     Accordingly, an analysis

of the statutory definition for the term “foreign like product”

is critical to settle the CV profit issue RHP-NSK raises.


       Title 19, United States Code, § 1677(16) sets forth, like

its pre-URAA form,8 a tripartite hierarchy for ascertaining


       8Title 19, United States Code, § 1677(16) (1994) revised
the pre-URAA precursor, 19 U.S.C. § 1677(16) (1988), inter alia,
by substituting the term “foreign like product” for “such or
similar merchandise,” and deleting the phrase “which is the
subject of an investigation” from § 1677(16). See SAA at 820;
see generally NSK Ltd. v. United States, 190 F.3d 1321, 1329
(Fed. Cir. 1999); Cemex, S.A. v. United States, 133 F.3d 897,
                                                  (continued...)
Consol. Court No. 97-02-00217                           Page 35


“foreign like product.”   Section 1677(16) provides:

      The term "foreign like product" means merchandise in
    the first of the following categories in respect of
    which a determination for the purposes of part II of
    this subtitle can be satisfactorily made:
         (A) The subject merchandise and other merchandise
      which is identical in physical characteristics with,
      and was produced in the same country by the same
      person as, that merchandise.
        (B) Merchandise–
              (i) produced in the same country and by the
           same person as the subject merchandise,
              (ii) like that merchandise in component
           material or materials and in the purposes for
           which used, and
             (iii) approximately equal in commercial value
           to that merchandise.
         (C) Merchandise–
              (i) produced in the same country and by the
           same person and of the same general class or
           kind as the subject merchandise,
              (ii) like that merchandise in the purposes
           for which used, and
              (iii) which the administering authority
           determines may reasonably be compared with that
           merchandise.

19 U.S.C. § 1677(16) (1994).9   From this language, it is clear


    8(...continued)
902-03 (Fed. Cir. 1998) (both cases discussing pre-URAA §
1677(16)’s   hierarchy for determining “such  or   similar
merchandise”).
    9   Although a “literal” reading of 19 U.S.C. § 1677(16)’s
definition of the term “foreign like product” is for “a
determination for the purposes of part II” of subtitle IV of the
Tariff Act of 1930, the Court nevertheless finds that general
rules of statutory construction dictate part IV’s § 1677(16) is
applicable in this case, that is, an administrative review of a
final determination pursuant to part III of subtitle IV. See
generally Freytag v. Comm’r, 501 U.S. 868, 877 (1991)
                                                  (continued...)
Consol. Court No. 97-02-00217                                       Page 36


that Commerce must first select merchandise that is identical

(i.e., model-specific) with the subject merchandise sold in, or

to, the United States.          See 19 U.S.C. § 1677(16)(A).       If such a

match is not possible, then Commerce must select merchandise

that is like (i.e., similar to) the subject merchandise.                 See

id. § 1677(16)(B).         Finally, if neither identical nor like

merchandise is available, merchandise of the “same general class

or kind as the subject merchandise” will qualify as the “foreign

like product.”     Id. § 1677(16)(C).         In other words, as RHP-NSK

correctly notes, once Commerce finds merchandise that matches

the criteria stated by a § 1677(16) category, it need not

consider   the     remaining       categories     because    the    statute

specifically     directs    Commerce     to   determine     “foreign   like

product” on the “first of the following categories in respect of

which a determination . . . can be satisfactorily made.”               Id. §

1677(16); see Federal-Mogul, 918 F. Supp. at 396, Cemex, S.A.,

133 F.3d at 903 (noting same for pre-URAA § 1677(16)).


    Additionally, § 1677(16)’s “can be satisfactorily made”

language   indicates,      as    Torrington   imprecisely    argues,    that


    9(...continued)
(expressing “a deep reluctance to interpret a statutory
provision so as to render superfluous other provisions in the
same enactment”) (citation and internal quotation marks
omitted).
Consol. Court No. 97-02-00217                                           Page 37


Commerce has the discretionary authority to select “foreign like

product” in the first of the enumerated categories in which a

satisfactory       determination       can   be   made.      However,    if     a

determination cannot be “satisfactorily made” relying on one of

the   three   §    1677(16)    categories,    the    Court   notes   that     the

statute and its legislative history are ambiguous with regard to

the selection of “foreign like product” for use in calculating

CV profit.        Therefore, under these circumstances, the Court

would have to proceed to the second step of Chevron to ascertain

if    Commerce’s    “foreign    like    product”     selection    for   use   in

calculating CV profit was a reasonable interpretation under 19

U.S.C. § 1677b(e)(2)(A).


       In this case, as noted earlier, Commerce decided that “[f]or

those U.S. models which no identical or similar match was found,

the CV of the U.S. model was used as the basis for the NV.”

NSK-RHP       Bearings--Preliminary          Results      Analysis      Memo--

Antifriction       Bearings    from    the   U.K.--Sixth      Administrative

Review,    5/1/94-4/30/95,       A-412-801,       Proprietary    Doc.   No.    12

(Fiche 71), at 2 (July 2, 1996); see Preliminary Results, 61

Fed. Reg. at 35,718 (Commerce “used CV as the basis for NV when

there were no usable sales of the foreign like product in the

comparison market”).          In other words, Commerce did not find
Consol. Court No. 97-02-00217                                     Page 38


merchandise that matches the criteria of the “identical” or

“like” categories of “foreign like product” for purposes of

calculating    CV    profit.   See   19    U.S.C.   §   1677(16)(A),   (B).

Rather, in calculating CV profit, Commerce used “aggregate data

that encompasses all foreign like products under consideration

for NV” to calculate profit for CV.         Final Results, 62 Fed. Reg.

at 2113.      The Court finds that use of such aggregate data

matches the criteria of § 1677(16)(C)’s “same general class or

kind” category and, therefore,10 Commerce’s determination under

19   U.S.C.   §     1677b(e)(2)(A)   was    in   accordance    with    law.



     10   In its brief, Commerce advanced the position that
“[w]here . . . the subject merchandise is complex, encompassing
numerous characteristics for matching, the foreign like product
typically embraces more than one of the categories established
in section 1677(16).” Def.’s Partial Opp’n to Mot. J. Agency R.
at 10.    The Court, however, cannot defer to this post hoc
rationalization as a basis to uphold or overturn Commerce’s
decision to rely on aggregate data for “foreign like product”
because Commerce’s final determination must be sustained, if at
all, on the same basis articulated in the determination by
Commerce itself.   See Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept
. . . counsel’s post hoc rationalizations for agency action; .
. . an agency’s discretionary order [must] be upheld, if at all,
on the same basis articulated in the order by the agency
itself.”); see also Martin v. Occupational Safety and Health
Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating
positions’ are not entitled to deference when they are merely .
. . counsel’s ‘post hoc rationalizations’ for agency action,
advance for the first time in the reviewing court.”); Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to
what appears to be nothing more than an agency’s convenient
litigating position would be entirely inappropriate.”).
Consol. Court No. 97-02-00217                                              Page 39


Moreover, the Court notes that since Commerce found that there

were sales of foreign like products that were not disregarded

and actual profit amounts were realized by RHP-NSK in connection

with these sales for use in calculating CV profit under §

1677b(e)(2)(A), see id., the three alternative CV methodologies

in    §    1677b(e)(2)(B)          are   in    applicable,   see    19    U.S.C.   §

1677b(e)(2)(B) (stating that subparagraph (B) is applicable when

“actual data are not available with the respect to the amounts

described in subparagraph (A)”).                 Furthermore, in examining the

structure      of   §    1677b(e),       the   Court   concludes,    as   Commerce

argued, that to apply one of § 1677b(e)(2)(B)’s alternative

methodologies where there are such sales of the foreign like

products would virtually eliminate the statutory preference to

calculate CV profit based upon § 1677b(e)(2)(A).                   The Court also

finds that the URAA legislative history supports the use of such

actual profit data under § 1677b(e)(2)(A) to compute CV profit

before       resorting        to     §     1677b(e)(2)(B)’s          alternative

methodologies.          See SAA at 839-40.        In addition, having reviewed

the       record,       the   Court      finds     that   Commerce's       factual

determinations concerning CV profit calculations are supported

by substantial evidence.                 Accordingly, Commerce’s CV profit

methodology is affirmed.
Consol. Court No. 97-02-00217                                  Page 40



      The Court declines to address RHP-NSK’s arguments concerning

19 C.F.R. § 351.405 conforming to the URAA because the revised

regulation   became   effective   for   all   administrative   reviews

initiated on the basis of requests made on or after July 1, 1997

and, therefore, is not applicable in this case.        See 19 C.F.R.

§ 351.701 (1998) (clarifying applicability dates for regulations

under 19 C.F.R. § 351); see also Final Regulations, 62 Fed. Reg.

at 27,358-59 (discussing final amended regulation 19 C.F.R. §

351.405 and determination of product categories for calculating

SG&A and profit for CV under 19 U.S.C. § 1677b(e)(2)(A)).



II.   Inclusion of Zero-Priced Samples Transactions
      in RHP-NSK’s United States Sales Database

      During this review, Commerce included in RHP-NSK’s United

States sales database free sample bearings given away at no

charge to potential United States customers. See Final Results,

62 Fed. Reg. at 2123.    RHP-NSK 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 RHP-

NSK’s zero-priced sample transactions from the dumping margin

calculations.    See Pls.’ Mem. Supp. Mot. J. Agency R. at 4-5,

15-16; Pls.’ Reply Mem. Supp. Mot. J. Agency R. at 9-10.
Consol. Court No. 97-02-00217                                        Page 41



       Commerce agrees that a remand under NSK is proper and that,

on remand, it should exclude from RHP-NSK’s United States sales

database those sample transactions for which RHP-NSK received no

consideration.     See Def.’s Partial Opp’n to Mot. J. Agency R. at

2-3, 18.


       Although Torrington concedes that NSK holds that sales must

be for consideration to be cognizable under the antidumping law,

Torrington nevertheless argues that RHP-NSK failed to meet its

burden of proving that the transactions in question were free of

broader forms of consideration, that is, consideration other

than    money   and,   therefore,    no   remand   is    necessary.     See

Torrington’s Resp. to Pls.’ Mem. Supp. Mot. J. Agency R. at 16-

18.    In the alternative, Torrington argues that if a remand is

ordered,    the   Court   should    not   rule   that    RHP-NSK’s    sample

transactions should be categorically excluded; rather, it should

instruct Commerce to reevaluate the record to determine whether

RHP-NSK’s sample transactions are in fact without consideration.

See id. at 16, 18.


       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)
Consol. Court No. 97-02-00217                                                      Page 42


(1994).       A zero-priced transaction, however, does not qualify as

a    “sale”    and,    therefore,     cannot     be       included    in     Commerce’s

dumping margin calculations.                See NSK, 115 F.3d at 975 (holding

“that   the     term    ‘sold,’     as    used   in    19    U.S.C.     §§    1673      and

1677a(c), requires both a transfer of ownership to an unrelated

party and consideration”).               Thus, the distribution of AFBs for

no    consideration         falls    outside        the     purview     of     §    1673.

Consequently, the Court remands to Commerce to exclude from RHP-

NSK’s United States sales database any sample transactions that

were not supported by consideration and to adjust the dumping

margins accordingly.



III. Inclusion of Imputed Inventory Carrying Costs
     in the CEP Offset When Comparing CEP Sales to CV

       In the Final Results, Commerce “regard[ed] the inventory

carrying costs [RHP-NSK] incurred in the home market, which are

incurred       prior   to   the     sale,    transfer,       or     shipment       of   the

merchandise to the U.S. affiliate, as an expense incurred on

behalf of the sale to the U.S. affiliate.”                          62 Fed. Reg. at

2124.     Commerce did not consider this to reflect a commercial

activity in the United States and, therefore, it did not deduct

domestic       inventory     carrying       costs     from    CEP    for     the     Final

Results.       See id.
Consol. Court No. 97-02-00217                                          Page 43



      RHP-NSK claims that Commerce correctly complied with the CEP

offset    provision,    19   U.S.C.     §    1677b(a)(7)(B)     (1994),      by

including inventory carrying costs in the CEP offset when it

matched   CEP   sales   to   home   market     price-based     NVs,    but   it

violated the statute when it failed to include imputed inventory

carrying costs in the CEP offset when it matched CEP sales to

CV.   See Pls.’ Mem. Supp. Mot. J. Agency R. at 5, 16-17.                 RHP-

NSK notes that Commerce corrected this clerical error in the

subsequent AFB review when it included inventory carrying costs

in the CEP offset for CEP sales matched to CV.                 See id. at 5

(citing    Antifriction      Bearings       from   Japan–NSK    Ltd.    (NSK)

Preliminary Results Analysis Memo Seventh Administrative Review

5/1/95-4/30/96, A-588-804, Proprietary Document, at 10-11 (Mar.

28, 1997)).     RHP-NSK requests that the Court remand the issue

and instruct Commerce to include inventory carrying costs in the

CEP offset when matching CEP sales to CV.                 See id. at 17.

Commerce agrees with RHP-NSK’s remand request.                  See Def.’s

Partial Opp’n to Mot. J. Agency R. at 3, 18.


      Torrington disagrees with RHP-NSK, noting that although

under Commerce’s prior practice “deductions from exporter’s sale

price (now called [CEP]) included imputed costs for carrying
Consol. Court No. 97-02-00217                                                    Page 44


inventory from the time the merchandise left the home market

factory to the time of its shipment to the first unrelated

customer in the United States,” Commerce’s practice under the

new law, on the United States side, is not to deduct “the cost

of carrying inventory from the time the merchandise leaves the

factory    to    the    time    of    the    sale      to    the   U.S.    affiliate.”

Torrington’s Resp. to Pls.’ Mem. Supp. Mot. J. Agency R. at 19.

Thus, Torrington argues that the rationale for an offsetting

deduction       has    evaporated.          See    id.        In   the    alternative,

Torrington contends that if a remand is ordered, the Court

should instruct Commerce to ensure that the sum of the average

imputed    financial       expenses     (i.e.,         both    imputed      credit     and

imputed inventory carrying costs) deducted from CV do not exceed

the   per-unit        actual   interest      expenses         included     in    the   CV-

buildup.       See id.     Torrington explains that since 19 U.S.C. §

1677b(e) requires that CV be “equal to” all actual costs of

materials      and     fabrication,      SG&A     and       profit,      deductions     of

imputed financial expenses greater than the reported actual

amounts will result in the unlawful diminution of the reported

costs.     See id. at 19-20.          Torrington, therefore, asserts that

if a remand is ordered, Commerce’s margin calculation program

should    be    modified       to    include      an   appropriate         cap   on    the
Consol. Court No. 97-02-00217                                          Page 45


deduction of average imputed expenses from CV.                See id. at 20.


       Title 19, United States Code, § 1677b(a)(1)(B) requires

Commerce to establish NV to the extent practicable, at the same

level of trade (“LOT”) as the EP or CEP.                  When Commerce is

unable to match United States sales with foreign market sales at

the same LOT, an adjustment to NV should be made to account for

the differences in price that result from the differences in

LOT.    See 19 U.S.C. § 1677b(a)(7)(A).             When the data available

does not provide an appropriate basis to grant a LOT adjustment

under    §    1677b(a)(7)(A),      but   NV    is   established   at    a     LOT

constituting a more advanced stage of distribution than the LOT

of the CEP, the statute ensures a fair comparison between United

States price and NV by reducing NV by what is known as the “CEP

offset.”       See 19 U.S.C. § 1677b(a)(7)(B) (CEP offset is an

adjustment that is made to NV when NV is being compared to CEP

sales in the United States).              Specifically, the CEP offset

adjustment is made by reducing NV “by the amount of indirect

selling      expenses   incurred   in    the   country   in   which    [NV]    is

determined on sales of the foreign like product,” but this

deduction may not exceed (i.e., it is “capped” by) the amount of

the indirect selling expenses deducted in calculating CEP.                    See

id.     Since the inventory carrying costs at issue constitute an
Consol. Court No. 97-02-00217                            Page 46


indirect selling expense incurred in the home market on the

sales of the foreign like product, the Court, therefore, remands

to Commerce to include the imputed inventory carrying costs in

the calculation of CEP offset for RHP-NSK when matching CEP

sales to CV.   See generally Notice of Final Determination of

Sales at Less Than Fair Value: Static Random Access Memory

Semiconductors From Taiwan, 63 Fed. Reg. 8909, 8915 (Feb. 23,

1998) (Commerce included inventory carrying costs in the CEP

offset for CEP sales matched to price-based NVs and CV).



                            CONCLUSION

    For the foregoing reasons, the case is remanded to Commerce

to: (1) exclude from RHP-NSK’s United States sales database any

sample transactions that were not supported by consideration and

to adjust the dumping margins accordingly; and (2) include

imputed inventory carrying costs in the calculation of CEP

offset for RHP-NSK when matching CEP sales to CV.     Commerce’s

final determination is affirmed in all other respects.


                                   ______________________________
                                        NICHOLAS TSOUCALAS
                                           SENIOR JUDGE


Dated: December 16, 1999
       New York, New York
                                             ERRATUM


Slip Op. 99-134

RHP BEARINGS LTD. v. UNITED STATES

Consol. Court No. 97-02-00217


    On page 2, second full paragraph, the first sentence after Held: should
read as follows:

    RHP-NSK’s motion is denied in part and granted in part.




December 16, 1999
                                    ERRATUM




Slip Op. 99-134

RHP BEARINGS LTD. v. UNITED STATES

Consol. Court No. 97-02-00217


        On page 24, line 2, which reads as “typically embraces more that one” should
read as follows:

       “typically embraces more than one ”




April 19, 2000
