Slip Op. 02-03
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
CONSOLIDATED BEARINGS COMPANY, :
:
Plaintiff, :
: Court No. 98-09-02799
v. :
:
THE UNITED STATES, :
:
Defendant. :
___________________________________:
ORDER
The case at bar comes before this Court as a result of the
Court’s decision in Consolidated Bearings Co. v. United States
(“Consolidated Bearings”), 25 CIT ___, 166 F. Supp. 2d 580 (2001),
and concerns the events that followed the issuance of Final Results
of Antidumping Duty Administrative Review of Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From the
Federal Republic of Germany, 56 Fed. Reg. 31,692 (July 11, 1991),
as amended by Amended Final Results of Antidumping Duty
Administrative Reviews of Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof From Germany, 62 Fed. Reg.
32,755 (June 17, 1997), by the United States Department of
Commerce, International Trade Administration (“Commerce”).
Court No. 98-09-02799 Page 2
Specifically, on September 9, 1997, Commerce instructed the
United States Customs Service (“Customs”) to liquidate, at a
certain “manufacturer’s” rate, entries of the merchandise produced
by FAG Kugelfischer Georg Schaefer KGaA (“FAG Kugelfischer”) and
imported by certain importers, the list of which did not include
Consolidated Bearings Company (“Consolidated Bearings”), an entity
that imported the merchandise manufactured by FAG Kugelfischer as
well as other merchandise. Almost a year later, on August 4, 1998,
Commerce sent liquidation instructions (“Liquidation Instructions”)
to Customs requiring Customs to liquidate the merchandise that was:
(1) produced in Germany; (2) imported by any importer; and (3)
still remained unliquidated after the application of prior
liquidation instructions including that of September 9, 1997, at
the deposit rate required at the time of entry of the merchandise.
Under the Liquidation Instructions, Customs had to assess
Consolidated Bearings’ entries at the rate much higher than the
“manufacturer’s” rate determined by Commerce for FAG Kugelfischer.
Consequently, Consolidated Bearings moved pursuant to USCIT R.
56.1 for judgment upon the agency record challenging the
Liquidation Instructions issued by Commerce and alleging that the
Liquidation Instructions were arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. The Court
granted Consolidated Bearings’ motion and remanded this case to
Court No. 98-09-02799 Page 3
Commerce to: (a) annul the Liquidation Instructions issued by
Commerce on August 4, 1998; and (b) take further actions not
inconsistent with this opinion. See Consolidated Bearings, 25 CIT
at ___, 166 F. Supp. 2d at 593. The Court particularly explained
that the remand was caused by: (1) the insufficiency of Commerce’s
explanation about Commerce’s reasons for the issuance of the
Liquidation Instructions, see id. 25 CIT at ___, 166 F. Supp. 2d at
590-92; and (2) the deficiencies of the Liquidation Instructions
evincing Commerce’s acknowledgment that Consolidated Bearings’
imports of FAG Kugelfischer’s merchandise could have been
liquidated previously and legitimately under the rates given in the
instructions of September 9, 1997.
On November 6, 2001, Commerce filed Final Results of
Redetermination Pursuant to Ct. Remand (“Remand Results”) for
Consolidated Bearings, 25 CIT ___, 166 F. Supp. 2d 580. In the
Remand Results, Commerce explains that Commerce: (1) possesses no
information on whether Consolidated Bearings’ purchases of FAG
Kugelfischer’s merchandise were direct, see Remand Results at 3;
(2) “surmise[s] . . . that Consolidated [Bearings] purchased the
[merchandise] from an intermediate party,” id. at 4; (3) “find[s]
it inappropriate to instruct” Customs to liquidate Consolidated
Bearings’ merchandise at FAG Kugelfischer’s rates, id. at 5; and
(4) devises two alternative approaches (one of which provides for
Court No. 98-09-02799 Page 4
“three alternative rates” for different types of Consolidated
Bearings’ merchandise) to be used instead of the approach given in
the September 9, 1997, liquidation instructions because “the Court
did not specify any alternative rates [Commerce] should consider.”
Id. at 3, 6-8.
While the Court appreciates the care and consideration and
recognizes the creativity Commerce put into creation of alternative
approaches and alternative rates, it is obvious that Commerce
misreads the purpose and the scope of the remand.
The gist of Consolidated Bearings, 25 CIT ___, 166 F. Supp.
2d 580, is that, within parameters of each administrative
determination, Commerce is bound to each election Commerce makes.
Cf. SKF USA Inc. v. United States, 263 F.3d 1369, 1382 (Fed. Cir.
2001). If Commerce issues liquidation instructions that Commerce
contemplates to be applicable to a particular merchandise, Commerce
cannot change its mind and enter “corrections” a year later or, as
Consolidated Bearings correctly points out, three years later.
Accord Pl.’s Comments Concerning Final Results of Redetermination
Pursuant Ct. Remand at 3. If Commerce does not review a particular
respondent but knowingly allows the imports of such respondent to
be liquidated at a particular rate, Commerce is equally bound to
such election. In this case, Commerce is bound by the September
Court No. 98-09-02799 Page 5
9, 1997, liquidation instructions. If Commerce is unsatisfied with
a potential application of those instructions, Commerce should have
issued said instructions in a clearer manner. Indeed, it would be
anomalous to suggest that Commerce could “fine tune” its
determinations any time Commerce is displeased with the outcome of
the application of a document Commerce issued or any time Commerce
starts having doubts about the evidence Commerce possesses. Under
such a scheme the whole administrative process would not only lose
any time frame and due process constrains but would effectively
become a carte blanche in the hands of an agency.
The Court presumes that the reason for Commerce’s misreading
of the scope of the remand is the Court’s instruction to “take
further actions not inconsistent with [the Court’s] opinion.”
Consolidated Bearings, 25 CIT at ___, 166 F. Supp. 2d at 593. It
seems that Commerce read this language as a requirement to devise
alternative approaches (or rates) for Consolidated Bearings’ import
of FAG Kugelfischer’s merchandise. See Remand Results at 3, 6.
Commerce is in error. Under the language of the September 9,
1997, liquidation instructions and Commerce’s actions within a year
after the issuance of these instructions, all Consolidated
Bearings’ imports of FAG Kugelfischer’s merchandise during the
period of review should be liquidated in accordance with the
Court No. 98-09-02799 Page 6
September 9, 1997, liquidation instructions only. Courts omit
spelling out the particular technical actions to be taken by an
agency because courts are in privy with only a limited amount of
evidence and, thus, are unfamiliar with particularities of the
transactions under review.
For example, if the language of the September 9, 1997,
liquidation instructions allows: (1) different modes of
liquidation; and (2) such different modes were actually utilized by
Customs right after Customs’ receipt of the September 9, 1997,
liquidation instructions with regard to parties other than
Consolidated Bearings, Commerce could have instructed Customs to
choose among these modes of liquidation.1 Alternatively, because
“Consolidated[] [Bearings’] entries were not reviewed” during the
review at issue, and Commerce “do[es] not have any information
about the kinds of [merchandise] Consolidated [Bearings] entered
during the period,” Remand Results at 5, Commerce could instruct
Customs to liquidate Consolidated Bearings’ import of FAG
Kugelfischer’s merchandise in accordance with the September 9,
1
Indeed, such a supposition seems unlikely. Commerce,
however, stated that alternative readings of the September 9, 1997,
liquidation instructions were plausible. See Consolidated
Bearings, 25 CIT at ___, 166 F. Supp. 2d at 592. While the
possibility of alternative readings could serve as a basis for a
vagueness attack by Consolidated Bearings’, no such claim was
entered by the plaintiff.
Court No. 98-09-02799 Page 7
1997, liquidation instructions, while ordering the liquidation of
all other Consolidated Bearings’ merchandise under another
applicable determination which Commerce believes is applicable
(provided such other determination was duly rendered2 and it was
feasible for Commerce to devise a methodology of separating
Consolidated Bearings’ imports of FAG Kugelfischer’s merchandise
and other Consolidated Bearings’ imports during the period of
review). If in such a case, as unlikely as it may be, the identity
of the merchandise manufacturer would become an issue, the Court
could entertain Commerce’s reasonable methodology determining which
Consolidated Bearings’ imports are of FAG Kugelfischer’s
merchandise and which are not. Bearing in mind that it was
Commerce and not the Court that was charged with a duty to
familiarize itself with all the particular circumstances of the
transaction and apply the law, the Court issued Commerce a legal,
rather than technical, mandate in Consolidated Bearings, 25 CIT
___, 166 F. Supp. 2d 580.
However, because Commerce neither took nor suggested taking
any further actions with regard to Consolidated Bearings’ imports
of FAG Kugelfischer’s merchandise that would abide with Commerce’s
2
Any liquidation of Consolidated Bearings’ merchandise
without prior proper determination by Commerce would be a violation
of administrative process and Consolidated Bearings’ procedural due
process rights.
Court No. 99-08-00462 Page 8
September 9, 1997, liquidation instructions, it is hereby
ORDERED that the Remand Results filed by Commerce on November
6, 2001, are vacated; and it is further
ORDERED that this case is remanded to Commerce to liquidate
all Consolidated Bearings’ imports of FAG Kugelfischer’s
merchandise imported during the period of review in accordance with
the September 9, 1997, liquidation instructions; and it is further
ORDERED that the remand results are due within ninety (90)
days of the date that this order is entered. Any responses or
comments are due within thirty (30) days thereafter. Any rebuttal
comments are due within fifteen (15) days after the date the
responses or comments are due.
___________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: January 8, 2002
New York, New York