Slip Op. 01-18
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
RHP BEARINGS LTD., NSK BEARINGS :
EUROPE LTD. and NSK CORPORATION; :
THE BARDEN CORPORATION (U.K.) LTD.,:
THE BARDEN CORPORATION, :
FAG BEARINGS CORPORATION, :
:
Plaintiffs, :
:
v. : Consol. Court No.
: 97-11-01983
UNITED STATES, :
:
Defendant, :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor. :
___________________________________:
[Commerce’s Remand Results are affirmed in part, remanded in part.]
Lipstein, Jaffe & Lawson, L.L.P. (Robert A. Lipstein, Matthew
P. Jaffe and Grace W. Lawson) for RHP Bearings Ltd., NSK Bearings
Europe Ltd. and NSK Corporation (“RHP-NSK”).
Grunfeld, Desiderio, Lebowitz & Silverman LLP (Max F.
Schutzman, Andrew B. Schroth and Mark E. Pardo) for The Barden
Corporation (U.K.) Ltd., The Barden Corporation and FAG Bearings
Corporation (“Barden-FAG”).
Stuart E. Schiffer, Deputy 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, Stacy J.
Ettinger, Patrick V. Gallagher, Myles S. Getlan 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, Wesley K. Caine,
Geert De Prest and Lane S. Hurewitz) for The Torrington Company
(“Torrington”).
Dated: February 23, 2001
Consol. Court No. 97-11-01983 Page 2
ORDER
I. Standard of Review
The Court will uphold Commerce’s redetermination pursuant to
the Court’s remand 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). 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).
II. Background
On August 3, 2000, this Court issued an opinion and order
directing the United States Department of Commerce, International
Trade Administration (“Commerce”), to: (1) annul all findings and
conclusions made pursuant to the duty-absorption inquiry conducted
for the subject review; (2) match Barden-FAG’s United States sales
to similar home market sales before resorting to constructed value
(“CV”); and (3) recalculate Barden-FAG’s dumping margin without
Consol. Court No. 97-11-01983 Page 3
regard to the results of the below-cost test. See RHP Bearings
Ltd. v. United States, 24 CIT ___, ___, 110 F. Supp. 2d 1043, 1055
(2000). The administrative determination underlying the Court’s
decision in RHP Bearings is entitled Antifriction Bearings (Other
Than Tapered Roller Bearings) and Parts Thereof From France,
Germany, Italy, Japan, Romania, Singapore, Sweden and the United
Kingdom; Final Results of Antidumping Duty Administrative Reviews
(“Final Results”), 62 Fed. Reg. 54,043 (Oct. 17, 1997), as amended,
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France, Germany, Italy, Japan, Romania,
Singapore, Sweden and the United Kingdom; Amended Final Results of
Antidumping Duty Administrative Reviews, 62 Fed. Reg. 61,963 (Nov.
20, 1997).
On October 20, 2000, Commerce submitted its Final Results of
Redetermination Pursuant to Court Remand (“Remand Results”). In
order to comply with the Court’s decision in RHP Bearings,
Commerce: (1)annulled all findings and conclusions made pursuant to
its duty-absorption inquiry with respect to Barden-FAG and RHP-NSK;
(2) matched United States sales to Barden-FAG’s home-market sales
of “similar” merchandise before resorting to constructed value; and
(3) recalculated Barden-FAG’s dumping margin without regard to the
results of the cost-of-production analysis.
Torrington was the only party to submit comments on the draft
Consol. Court No. 97-11-01983 Page 4
results issued by Commerce on September 14, 2000. Both Barden-FAG
and Torrington submitted comments to this Court regarding the
Remand Results. RHP-NSK did not submit any comments.
III. Contentions of the Parties
With respect to the duty-absorption issue, Torrington
continues to maintain that Commerce has inherent authority to
conduct the absorption inquiries in any review. Torrington also
maintains that Commerce’s initial determination to conduct a below-
cost test for Barden-FAG’s sales and to disregard certain home
market sales is supported by substantial evidence on the record and
in accordance with law. Finally, Torrington believes that the
Court exceeded its authority in directing Commerce to recalculate
Barden-FAG’s dumping margin without regard to the results of the
below-cost test. Torrington does not contest the Court’s decision
to instruct Commerce to match Barden-FAG’s United States sales to
similar home market sales before resorting to CV.
Barden-FAG limits its comments to Commerce’s calculation of
Barden-FAG’s antidumping margin without regard to the results of
the below-cost test. Barden-FAG maintains that 19 U.S.C. §
1677b(b) (1994) provides two methods by which Commerce can conduct
a below-cost test and, contrary to Torrington’s arguments, no
reasonable grounds exist for Commerce to perform the test under
Consol. Court No. 97-11-01983 Page 5
either method. Barden-FAG does not contest the Court’s decision to
instruct Commerce to match Barden-FAG’s United States sales to
similar home market sales before resorting to CV.
In its discussion of the parties’ comments to the Remand
Results, Commerce indicates that it has complied with the Court’s
remand instructions; however, Commerce incorporates by reference
the arguments contained in its Motion for Rehearing and
Modification of the Court’s Decision, Slip Op. 00-28, and
Accompanying Order of March 22, 2000 (“Motion”), dated April 14,
2000. In its Motion, Commerce contended that the Court misread the
statute in precluding Commerce from conducting duty-absorption
inquiries for transition orders. Commerce also argued that in
issuing the remand order, the Court erred in directing Commere to
annul all findings and conclusions made pursuant to its duty-
absorption inquiry and that the Court should have instead directed
Commerce to take further action consistent with the correct legal
standard. Commerce does not contest the Court’s decision to
instruct Commerce to match Barden-FAG’s United States sales to
similar home market sales before resorting to CV.
IV. Analysis
A. Duty Absorption
This Court has repeatedly held that Commerce lacks statutory
Consol. Court No. 97-11-01983 Page 6
authority under 19 U.S.C. § 1675(a)(4)(1994) to conduct duty-
absorption inquiries for antidumping duty orders issued prior to
the January 1, 1995 effective date of the Uruguay Round Agreements
Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994). See SNR
Roulements v. United States, 24 CIT ___, ___, 118 F. Supp. 2d 1333,
1337 (2000); SKF USA Inc. v. United States, 24 CIT ___, ___, 116 F.
Supp. 2d 1257, 1260 (2000); SKF USA Inc. v. United States, Slip Op.
00-106, 2000 WL 1225803, *3 (Aug. 23, 2000); RHP Bearings Ltd. v.
United States, 24 CIT ___, ___, 110 F. Supp. 2d 1043, 1052-53
(2000); FAG Italia S.p.A. v. United States, Slip Op. 00-82, 2000 WL
978462, *5 (July 13, 2000); SKF USA Inc. v. United States, Slip Op.
00-81, 2000 WL 977373, *3 (July 12, 2000); NTN Bearing Corp. of
America v. United States, 24 CIT ___, ___, 104 F. Supp. 2d 110, 117
(2000); SKF USA Inc. v. United States, Slip Op. 00-58, 2000 WL
726944, *3 (June 1, 2000); SKF USA Inc. v. United States, 24 CIT
___, ___, 94 F. Supp. 2d 1351, 1357-59 (2000). Torrington presents
no arguments compelling the Court to reconsider the issue and hold
otherwise.
Similarly, the Court finds Torrington’s arguments regarding
the authority of the Court to fashion a remand order unpersuasive.
Torrington believes that the Court exceeded its power on judicial
review in directing Commerce to annul its findings instead of
permitting Commerce to reach a determination consistent with the
Consol. Court No. 97-11-01983 Page 7
Court’s order.
Torrington is incorrect. The Court found that Commerce was
without authority under the antidumping statute to conduct a duty-
absorption inquiry for the subject review; the only action that
Commerce could take in order to remain within the bounds of the
Court’s interpretation of the law would be to annul the findings
and conclusions made pursuant to Commerce’s erroneous
interpretation of the law. Thus, the result here would necessarily
be the same whether the Court ordered Commerce to annul its
findings or, more generally, ordered Commerce to produce a
determination consistent with the opinion. Since the Court has
already declared Commerce’s interpretation of the law is improper,
and there is no additional fact-finding to be done nor any
discretionary action to be taken by Commerce, granting Torrington’s
request to remand the case and instruct Commerce to take action
consistent with the Court’s opinion would be “an idle and useless
formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766-67 n.6
(1969); cf. United States v. Roses Inc., 706 F.2d 1563, 1568-70
(Fed. Cir. 1983) (court acted improperly in ordering agency to
conduct an investigation when the decision of whether to conduct
such investigation depends on the application of agency expertise);
Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 679
(1st Cir. 1998) (case remanded for agency’s reconsideration upon
Consol. Court No. 97-11-01983 Page 8
court’s finding that agency applied incorrect legal standard and,
therefore, reached questionable factual determination).
In essence, Torrington is asking the Court to permit Commerce
another opportunity to present its arguments regarding the
lawfulness of its duty-absorption inquiry. As the Court has
already stated, such an inquiry has been repeatedly found to be
unlawful.
Accordingly, Commerce’s action in annulling all findings and
conclusions made pursuant to its duty-absorption inquiry is
affirmed.
B. Commerce’s Decision to Recalculate Barden-FAG’s Dumping
Margin Without Regard to the Results of the Cost-of-
Production Analysis
Upon reviewing Commerce’s Final Results, this Court determined
that Commerce failed to articulate its rationale for conducting the
below-cost test. See RHP Bearings, 24 CIT at ___, 110 F. Supp. 2d
at 1054. Specifically, the Court determined that Commerce did not
point to the “reasonable grounds,” if any, it had to suspect that
Barden-FAG was making below-cost sales in the instant review, and
the Court refused to guess why Commerce decided to conduct the
below-cost test. The Court pointed out that subsections (i) and
(ii) of 19 U.S.C. § 1677b(b)(2)(A) define what constitutes
sufficient evidence with which to form reasonable suspicion, and
Consol. Court No. 97-11-01983 Page 9
there was no evidence in the Final Results that Commerce relied on
the type of information required to form the “reasonable grounds to
believe or suspect” that below-cost sales existed before initiating
the investigation. Finding Commerce’s determination to be
unsupported by substantial evidence on the record, the Court
remanded the issue to Commerce and instructed it to recalculate
Barden-FAG’s dumping margin without regard to the results of the
below-cost test.
Torrington complains that Commerce’s initial determination was
supported by substantial evidence on the record and in accordance
with law; however, Torrington does not present evidence supporting
this claim.
The Court remands for a different reason. Upon finding that
Commerce did not articulate its rationale in conducting the below-
cost test, the Court should have instructed Commerce to clarify its
decision.1 See Roses, 706 F.2d at 1568-70; Baystate Alternative
1
There is a fundamental difference between the Court’s
decision to remand this issue and its decision not to remand the
duty-absorption issue. With respect to the duty-absorption issue,
the Court concluded that Commerce had misinterpreted the statute
and acted without authority in conducting the duty-absorption
inquiry. There was no further factual inquiry to be done by the
agency, and the only result that could follow from the Court’s
decision was that which the Court ordered: Commerce was compelled
to annul its finding and conclusions. Here, by contrast, the issue
is not necessarily resolved with the Court’s finding that Commerce
failed to articulate its rationale in conducting the below-cost
test.
Consol. Court No. 97-11-01983 Page 10
Staffing, 163 F.3d at 679. Accordingly, the Court remands this
issue to Commerce and orders it to clarify the reasons behind its
decision to conduct the below-cost test and to take any further
action that it deems appropriate.
V. Conclusion
The Court affirms Commerce’s decision to: (1) annul all
findings and conclusions made pursuant to its duty-absorption
inquiry with respect to Barden-FAG and RHP-NSK; and (2) match
United States sales to Barden-FAG’s home-market sales of “similar”
merchandise before resorting to constructed value. With respect to
Commerce’s decision to recalculate Barden-FAG’s dumping margin
without regard to the results of the cost-of-production analysis,
the Court remands to Commerce and orders it to clarify the reasons
behind its decision to conduct the below-cost test and to take any
further action that it deems appropriate. Accordingly, it is
hereby
ORDERED that Commerce is to clarify the reasons behind its
decision to conduct the below-cost test and to take any further
action that it deems appropriate; and it is further
ORDERED that the remand results are due within ninety (90)
days of the date that this opinion is entered. Any responses or
comments are due within thirty (30) days thereafter. Any rebuttal
Consol. Court No. 97-11-01983 Page 11
comments are due within fifteen (15) days after the date the
responses or comments are due.
______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: February 23, 2001
New York, New York