Transcom, Inc. v. United States

Slip Op. 00-157

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
_____________________________________
:
TRANSCOM, Inc., :
:
Plaintiff, :
:
L & S BEARING COMPANY, :
:
Plaintiff-Intervenor, :
:
v. : Court No. 97-02-00249
:
THE UNITED STATES, :
:
Defendant, :
:
THE TIMKEN COMPANY, :
:
Defendant-Intervenor. :
_____________________________________ :

Plaintiff Transcom, Inc. (“Transcom”) moves pursuant to USCIT
R. 56.2 for judgment upon the agency record challenging various
aspects of the United States Department of Commerce, International
Trade Administration’s (“Commerce”) final determination, entitled
Final Results and Partial Termination of Antidumping Duty
Administrative Review on Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, From the People’s Republic of China
(“Final Results”), 62 Fed. Reg. 6173 (Feb. 11, 1997). Transcom
alleges that Commerce unlawfully subjected merchandise imported by
Transcom through exporters not properly designated in Commerce’s
notice of initiation of an antidumping review to certain
determinations Commerce made as a result of the review.

Held: Transom’s USCIT R. 56.2 motion is granted. This case is
remanded to Commerce to liquidate Transcom’s relevant entries at a
rate equal to the cash deposit required on the merchandise at the
time of entry pursuant to 19 C.F.R. § 353.22(e) (1995).

[Transcom’s motion is granted. Case remanded].
Court No. 97-02-00249 Page 2

Dated: November 22, 2000

Neville, Peterson & Williams (George W. Thompson, John M.
Peterson and Curtis W. Knauss) for plaintiff.

Cohen Darnell & Cohen, P.L.L.C. (Mark A. Cohen) for plaintiff-
intervenor.1

David W. Ogden, Assistant Attorney General; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Henry R. Felix); of counsel: Mildred
E. Steward, 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.,
Amy S. Dwyer, Geert De Prest and Mara M. Burr) for defendant-
intervenor.

OPINION

TSOUCALAS, Senior Judge: Plaintiff Transcom, Inc.

(“Transcom”) moves pursuant to USCIT R. 56.2 for judgment upon the

agency record challenging various aspects of the United States

Department of Commerce, International Trade Administration’s

(“Commerce”) final determination, entitled Final Results and

Partial Termination of Antidumping Duty Administrative Review on

Tapered Roller Bearings and Parts Thereof, Finished and Unfinished,

From the People’s Republic of China (“Final Results”), 62 Fed. Reg.

6173 (Feb. 11, 1997). Transcom alleges that Commerce unlawfully

subjected merchandise imported by Transcom through exporters not

1
L & S Bearing Company has intervened in this action but did
not file a motion for judgment upon the agency record and
supporting brief.
Court No. 97-02-00249 Page 3

properly designated in Commerce’s notice of initiation of an

antidumping review to certain determinations Commerce made as a

result of the review.

BACKGROUND

This case concerns the eighth administrative review of the

antidumping duty order on tapered roller bearings (“TRBs”) and

parts thereof, finished and unfinished, imported from the People’s

Republic of China (“PRC”) during the period of review (“POR”)

covering June 1, 1994, through May 31, 1995. Commerce reviewed and

published the preliminary results on August 5, 1996. See

Preliminary Results of Antidumping Administrative Review and Intent

To Revoke Antidumping Duty Order in Part on Tapered Roller Bearings

and Parts Thereof, Finished and Unfinished, From the People's

Republic of China (“Preliminary Results”), 61 Fed. Reg. 40,610. On

February 11, 1997, Commerce published the Final Results. See 62

Fed. Reg. 6173.

Since the administrative review at issue was initiated after

December 31, 1994, the applicable law is the antidumping statute as

amended by the Uruguay Round Agreements Act (“URAA”), Pub. L. No.

103-465, 108 Stat. 4809 (1994) (effective Jan. 1, 1995). 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
Court No. 97-02-00249 Page 4

amendments)).

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19

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

STANDARD OF REVIEW

The Court will uphold Commerce’s final determination in an

antidumping 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); see NTN Bearing

Corp. of America v. United States, 24 CIT ___, ___, 104 F. Supp. 2d

110, 115-16 (2000) (detailing Court’s standard of review for

antidumping proceedings).

DISCUSSION

I. Insufficient Notice

A. Background

This case concerns Commerce’s procedure for conducting an

administrative review and imposing antidumping duties. The

procedure involves four steps: (1) Commerce publishes a notice of

Opportunity to Request an Administrative Review for the POR at

issue; (2) upon receipt of such request, Commerce publishes a

notice of Initiation of an Administrative Review in the Federal
Court No. 97-02-00249 Page 5

Register; (3) Commerce, in order to obtain pertinent information,

distributes or makes available questionnaires to those entities

Commerce designated in the notice of Initiation; and (4) on the

basis of the information gathered, Commerce determines the

antidumping duty rates applicable to each entry or type of entries

and publishes these determinations in the Federal Register. See

generally, 19 U.S.C. § 1675(a)(1994); 19 C.F.R. §§ 353.22, 353.31

(1995). If after the publication of a notice of Opportunity to

Request an Administrative Review for the POR at issue, Commerce

does not receive a timely or proper request for review, Commerce

must “without additional notice . . . assess antidumping duties on

the merchandise . . . at rates equal to the cash deposit of . . .

estimated antidumping duties required on that merchandise at the

time of entry . . . .” 19 C.F.R. § 353.22(e).

In this case, Commerce issued the antidumping duty order on

May 27, 1987, and amended the order on February 26, 1990. See

Final Determination of Sales at Less Than Fair Value on Tapered

Roller Bearings From the People's Republic of China, 52 Fed. Reg.

19,748; Amendment to Final Determination of Sales at Less Than Fair

Value and Antidumping Duty Order in Accordance With Decision Upon

Remand on Tapered Roller Bearings From the People's Republic of

China, 55 Fed. Reg. 6669.

On June 6, 1995, Commerce published in the Federal Register a
Court No. 97-02-00249 Page 6

notice of Opportunity to Request an Administrative Review of the

order covering the POR from June 1, 1994, through May 31, 1995.

See Opportunity to Request Administrative Review of Antidumping or

Countervailing Duty Order, Finding, or Suspended Investigation, 60

Fed. Reg. 29,821. In response, The Timken Company (“Timken”), a

United States producer of the subject merchandise, filed a request

for review identifying by name 132 Chinese producers and exporters

and nine Hong Kong exporters of the subject merchandise. See

Def.’s Mem. Opp’n Pl.’s Mot. J. Agency R. (“Def.’s Mem.”) at 4-5

(citing to P.D. 3; Fi. 3, Fr. 1, 3-13). Timken’s list of 132

Chinese and nine Hong Kong entities did not include Direct Source

International and Goldhill International Trading & Services Co.

(collectively “Transcom’s Hong Kong exporters”), entities that were

Hong Kong nationals exporting TRBs from the PRC for Transcom, a

United States importer. See id. at 8. Timken also requested a

review of: (a) “all merchandise covered by the [antidumping duty]

order, from whatever source”; and (b) merchandise from “any other

exporter from Hong Kong or any other third country, . . . any other

exporters or producers, wherever located, [that were] presently or

previously part of or includ[ed] within their names ‘China National

Machinery Import and Export Corporation’ or . . . ‘Machinery Import

and Export Corporation.’” See id. at 4-5.

On August 16, 1995, Commerce initiated the administrative
Court No. 97-02-00249 Page 7

review at issue by publishing a notice of Initiation. See

Initiation of Antidumping and Countervailing Duty Administrative

Reviews and Requests for Revocation in Part (“Notice of

Initiation”), 60 Fed. Reg. 42,500.2 The Notice of Initiation

listed by name the 132 Chinese producers and exporters and nine

Hong Kong exporters identified in Timken’s request for review and,

right at the outset, expressly provided that Commerce was “not

initiating an administrative review of any exporters and/or

producers who were not named in [the] review request [submitted by

Timken] because such exporters and/or producers were not specified

as required . . . .” Id. at 42,500-01 (emphasis supplied).

Simultaneously, the Notice of Initiation provided that “[a]ll

exporters of TRBs from the People’s Republic of China [were]

conditionally covered by this review.” Id. at 42,503 (emphasis

supplied).

This combination of statements was a notable deviation from

the language Commerce used in the notice of Initiation of the

review immediately preceding the one at issue. In the notice of

Initiation of the preceding review, Commerce stated, in a similar

2
The regulation states that Commerce must publish “notice of
‘Initiation of Antidumping Duty Administrative Review.’” 19 C.F.R.
§ 353.22(c)(1) (pattern of capitalization in original).
Accordingly, any such notice is designated in this opinion as
“notice of Initiation” except for the notice of Initiation at issue
which is designated as Notice of Initiation.
Court No. 97-02-00249 Page 8

fashion, that “[a]ll other exporters of tapered roller bearings

[were] conditionally covered.” Initiation of Antidumping Duty

Administrative Reviews and Request for Revocation in Part, 59 Fed.

Reg. 43,537, 43,539 (Aug. 24, 1994). The preceding notice of

Initiation, however, was silent about whether Commerce intended to

review the entries from any exporters and/or producers not named in

the request for review. The language indicating Commerce’s intent

to abstain from reviewing the entries from any exporters/producers

unidentified or improperly identified in the request for review

appeared for the first time in the Notice of Initiation at issue.

See Notice of Initiation, 60 Fed. Reg. at 42,500-01.

After publication of the Notice of Initiation, Commerce

distributed questionnaires to the respondents named in the Notice

of Initiation. See Preliminary Results, 61 Fed. Reg. at 40,610.

Commerce also made the questionnaires available for those parties

that were not identified by name in the Notice of Initiation but

who wished to submit required information in order to prevent a

possible negative default determination. See id.; cf. Preliminary

Results of Antidumping Administrative Review on Tapered Roller

Bearings and Parts Thereof, Finished and Unfinished, From the

People’s Republic of China, 60 Fed. Reg. 49,572, 49,573-76 (Sept.

26, 1995) (discussing the case of Xiangfan International Trade

Corp.); Transcom v. United States (“Transcom CIT”), 24 CIT ___,
Court No. 97-02-00249 Page 9

___, Slip op. 00-146 at 12, 31 (Nov. 7, 2000).

Unaware of the existence of Transcom’s Hong Kong exporters,

Commerce did not provide them with the questionnaires, and

Transcom’s Hong Kong exporters and their PRC suppliers did not

submit the questionnaires on their own. See Def.’s Mem. at 8;

Pl.’s Br. Supp. Mot. J. Agency R. (“Pl.’s Br.”) at 7.

After the period to submit the questionnaires expired,

Commerce reviewed the information it had obtained and published the

Preliminary Results. See 61 Fed. Reg. 40,610. The Preliminary

Results released the rates allocated to the entries from the

entities that provided Commerce with the information meriting the

assignment of separate rates. See id. at 40,611-12. The

Preliminary Results also indicated that those companies that did

not respond to the questionnaires or responded in an insufficient

way would not merit separate rates and, thus, would be subject to

the default PRC rate. See id. at 40,613-14.

On August 23, 1996, Transcom entered its notice of appearance,

arguing that Commerce’s application of the default PRC rate was

invalid with respect to the entries of those entities that

abstained from responding to the questionnaires because they were

not properly designated in the Notice of Initiation and, thus, not

notified of the pending review. See Final Results, 62 Fed. Reg.
Court No. 97-02-00249 Page 10

6186-87; Def.’s Mem. at 8 (citing to P.D. 166, Fi. 46, Fr. 53).

In the Final Results, Commerce refuted Transcom’s argument and

indicated that Transcom’s entries from its Hong Kong exporters

would be subject to the review and the PRC default rate. See 62

Fed. Reg. at 6187-88. Consequently, Transcom initiated the current

proceedings and filed a brief before this Court identifying its

Hong Kong exporters by name. See Def.’s Mem. at 8.

B. Contentions of the Parties

Transcom contends that under 19 U.S.C. § 1675(a) and 19

C.F.R. § 353.22, Commerce lacked authority to review and impose the

resulting determinations upon entries of any entities other than

those properly designated in the Notice of Initiation. See Pl.’s

Br. at 13-20. Specifically, Transcom asserts that the language of

19 U.S.C. § 1675(a) and 19 C.F.R. § 353.22, as interpreted by case

law and read in conjunction with Commerce’s express statement that

Commerce was “not initiating an administrative review of any

exporters and/or producers who were not [properly] named in [the]

review request,” precludes Commerce from reviewing and imposing the

default PRC rate upon the entries of entities other than those

properly designated in Timken’s request for review. See id.

Commerce argues that it was obligated to provide notice only

to “respondents” determinable under the “first to know test,” here,
Court No. 97-02-00249 Page 11

the PRC suppliers to Transcom’s Hong Kong exporters. See Def.’s

Mem. at 15-21. Alternatively, Commerce maintains that it provided

Transcom and its Hong Kong exporters with constructive notice by

including the statement that “[a]ll exporters of TRBs from the

People’s Republic of China [were] conditionally covered by this

review” in the Notice of Initiation. See id. at 48.

Timken agrees with Commerce that Transcom’s entries were

subject to the determinations Commerce made in its Final Results

because the statement “[a]ll exporters of TRBs from the People’s

Republic of China are conditionally covered by this review”

provided Transcom and its Hong Kong exporters with constructive

notice of the pending review. See Timken’s Resp. Opp’n Pl.’s Mot.

J. Agency R. (“Timken’s Resp.”) at 12-14. In addition, Timken

alleges that Transcom’s challenge to the Preliminary Results

indicates Transcom’s awareness of the fact that its entries were

subject to the review and constitutes Transcom’s de facto admission

of being on notice. See id. at 14.

C. Analysis

1. Commerce’s Obligation to Notify

Commerce argues that under the “first to know test,” Commerce

was obligated to notify only the PRC suppliers to Transcom’s Hong

Kong exporters. See Def.’s Mem. at 15-21. The Court addressed
Court No. 97-02-00249 Page 12

this issue in Transcom CIT and held that Commerce’s assertion was

contrary to the applicable statute, regulation and case law.3 See

24 CIT ___, ___, Slip op. 00-146 at 18-21 (relying on 19 U.S.C. §

1675(a); 19 C.F.R. § 353.22(c) (1994); Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ;

Transcom, Inc. v. United States (“Transcom CAFC”), 182 F.3d 876

(Fed. Cir. 1999)). Since the issue and the arguments presented in

the instant case are identical to those in Transcom CIT, the Court

adheres to its reasoning in Transcom CIT. Accordingly, the Court

finds that Commerce was obligated to adequately notify all parties

whose interests could be affected by the administrative review.

See Transcom CAFC, 182 F.3d at 882-84; Transcom CIT, 24 CIT ___,

___, Slip op. 00-146 at 18-21.

2. Insufficiency of Notice Ensuing From the Language
of the Notice of Initiation

A request for an administrative review must be submitted by an

interested party. See 19 C.F.R. § 353.22(a). The term “interested

party” includes “[a] producer in the United States of the like

product . . . .” 19 C.F.R. § 353.2(k)(3) (1995). In the instant

case, Timken is the interested party. Timken’s request for the

administrative review: (a) catalogued the names of 132 Chinese

3
Although Transcom CIT was a pre-URAA case and the instant
case is post-URAA, the outcome does not change as a result of the
amendments.
Court No. 97-02-00249 Page 13

producers and exporters and nine Hong Kong exporters; (b)

identified a somewhat amorphous class of “other exporters or

producers, wherever located, [that were] presently or previously

part of or includ[ed] within their names ‘China National Machinery

Import and Export Corporation’ or . . . ‘Machinery Import and

Export Corporation’”; and (c) designated a general category of

those entities whose entries were “merchandise covered by the

order, from whatever source.” See Def. Br. at 4-5 (citing P.D. 3;

Fi. 3; Fr. 1-13).

The interested party, however, may request an administrative

review of only “specified individual producers or resellers . . .

.” 19 C.F.R. § 353.22(a) (emphasis supplied). The phrase

“specified individual producers or resellers” is interpreted by

case law to mean that, in making a request for a review, the

interested party should exhaust all avenues reasonably available in

its attempts to specifically identify the entities to be reviewed

before designating a general category of entities. See 19 C.F.R.

§ 353.22(a); Floral Trade Council v. United States, 17 CIT 1417,

1418 (1993). There is no evidence showing that Timken exhausted

all avenues reasonably available to it. Consequently, Timken’s

identification of those entities whose entries were “merchandise

covered by the order, from whatever source” was an invalid

designation of a general category. See Floral Trade Council, 17
Court No. 97-02-00249 Page 14

CIT at 1417, 1419 (holding that an interested party could not

request a review of the entire Columbian industry, leaving to

Commerce the task of gathering the names of all relevant producers

and exporters). The language of Timken’s request had to be read

without this invalid designation. See 19 C.F.R. § 353.22(a);

accord Notice of Initiation, 60 Fed. Reg. at 42,500-01. It follows

that Commerce, as long as it was proceeding upon Timken’s request,

had the authority to review either the 132 Chinese

producers/exporters and nine Hong Kong exporters listed by Timken

(collectively “132 and nine companies”) or, possibly, the 132 and

nine companies plus all “other exporters or producers, wherever

located, [that were] presently or previously part of or includ[ed]

within their names ‘China National Machinery Import and Export

Corporation’ or . . . ‘Machinery Import and Export Corporation’”

(collectively “132 and nine companies plus a certain class”).4

4
A requesting interested party “must bear the . . . burden
imposed on it by the regulation to name names” of the entities to
be reviewed. Floral Trade Council, 17 CIT at 1418-19. However,
“the burdens on the requester are those caused by the mechanics of
triggering the review that is actually desired. In practical
terms, these burdens should be minimal.” Id. at 1418. In other
words, a requesting interested party could probably satisfy its
burden to “name names” by providing an encompassing term
specifically identifying a precise and limited class, so the
designation would be more analogous to “naming names” than to
vaguely outlining a general category of entities. See 19 C.F.R. §
353.22(a); Floral Trade Council, 17 CIT at 1418-19. The Court,
however, does not need to reach this issue in the instant case
because, as it is discussed below, the outcome remains the same
regardless of whether or not Timken validly requested the review of
(continued...)
Court No. 97-02-00249 Page 15

Commerce must designate in its notice of Initiation those

entities whose interest in entries of merchandise might be affected

by the review in order to subject these entries to Commerce’s

determinations. See generally, 19 C.F.R. §§ 353.22(a), 353.29(a)

(1995). The designation in a notice of Initiation provides these

entities with notice of pending review and enables them to

participate meaningfully. See 19 U.S.C. § 1675(a); 19 C.F.R. §

353.22(a); Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306 (1950); Transcom CAFC, 182 F.3d at 881-84; Transcom CIT, 24 CIT

___, ___, Slip op. 00-146 at 24-25. Commerce’s failure to provide

adequate notice is a violation of Commerce's statutory and

regulatory obligations that makes the resulting determinations

procedurally defective and inoperative with regard to the entries

of those entities that did not receive adequate notice. See

Transcom CAFC, 182 F.3d at 880, 884; see generally, Mullane, 339

U.S. 306. In the instant case, as discussed below, the scope-

limiting statement that Commerce was “not initiating an

administrative review of any exporters and/or producers who were

not [properly] named in [the] review request” submitted by Timken

superceded the scope-enlarging statement that “[a]ll exporters of

4
(...continued)
“other exporters or producers, wherever located, [that were]
presently or previously part of or includ[ed] within their names
‘China National Machinery Import and Export Corporation’ or . . .
‘Machinery Import and Export Corporation.’”
Court No. 97-02-00249 Page 16

TRBs from the People’s Republic of China [were] conditionally

covered.” The scope-limiting statement stripped Transcom of its

right to notice of the review, thus, making the determinations in

the Final Results inoperative with regard to Transcom’s entries

from its Hong Kong exporters.

If Commerce reviews entries of merchandise from a non-market

economy, it can satisfy the notice requirement by designating the

entities in a notice of Initiation either by name or by a defining

phrase that is “reasonably calculated, under all the circumstances,

to apprize interested parties of the pendency of the action and

afford them an opportunity to present their objections.” Mullane,

339 U.S. at 314 (citations omitted); see Transcom CAFC, 182 F.3d at

881-82; Transcom CIT, 24 CIT ___, ___, Slip op. 00-146 at 23-32.

The phrase “[a]ll exporters of TRBs from the People’s Republic of

China [were] conditionally covered by this review,” included in the

Notice of Initiation, was a defining phrase that, under the

circumstances, satisfied the notice requirement by reasonably

alerting the entities to the pendency of the review. See Transcom

CAFC, 182 F.3d at 881-82; Transcom CIT, 24 CIT ___, ___, Slip op.

00-146 at 23-32. The phrase implies that the scope of the review

could be enlarged to encompass any entity that Commerce itself

could make subject to the review in addition to the entities

properly designated in the request for review by the interested
Court No. 97-02-00249 Page 17

party. See generally, Transcom CAFC, 182 F.3d at 880, 883;

Transcom CIT, 24 CIT ___, ___, Slip op. 00-146 at 21-23; Def.’s

Mem. at 48.

The Notice of Initiation also included a scope-limiting

statement that Commerce was “not initiating an administrative

review of any exporters and/or producers who were not [properly]

named in [the] review request” by Timken. Notice of Initiation, 60

Fed. Reg. at 42,500-01. Two alternative meanings could have been

inferred from this statement: (1) Commerce expressly limited its

right of review to only the “132 and nine companies”; or (2)

Commerce expressly limited its right of review to only the “132 and

nine companies plus a certain class.” In sum, the scope-limiting

statement that Commerce was “not initiating an administrative

review of any exporters and/or producers who were not named in

[the] review request” by Timken potentially conflicted with the

implied meaning of Commerce’s scope-enlarging statement that

“[a]ll exporters of TRBs from the People’s Republic of China

[were] conditionally covered by this review.” Id. at 42,500-01,

42,503.

While the particular circumstances of this case might allow an
Court No. 97-02-00249 Page 18

interpretation harmonizing these incompatible statements,5 the

outcome remains the same: the notice provided by Commerce was

procedurally insufficient with regard to Transcom’s entries from

its Hong Kong exporters.

The Court believes that Commerce’s statement that “[a]ll

exporters of TRBs from the People’s Republic of China are

conditionally covered” signified Commerce’s desire to enlarge the

scope of the review to encompass entities other than those properly

5
It can be fancied that the reason for Commerce’s statement
that “[a]ll exporters of TRBs from the People’s Republic of China
[were] conditionally covered” was not a desire to enlarge the scope
of the review to encompass the entities other than those properly
designated in Timken’s request but rather a desire to validate
Timken’s usage of the questionable encompassing term “exporters or
producers, . . . [that were] presently or previously part of or
includ[ed] within their names ‘China National Machinery Import and
Export Corporation’ or . . . ‘Machinery Import and Export
Corporation.’” Such interpretation allows a harmonized reading of
the statements that: (1) Commerce was “not initiating an
administrative review of any exporters and/or producers who were
not named in [the] review request” and (2) Commerce deemed “[a]ll
exporters of TRBs from the People’s Republic of China [to be]
conditionally covered” by the review. In that case, the scope-
limiting statement that Commerce was “not initiating an
administrative review of any exporters and/or producers who were
not named in [the] review request” narrows the scope of the review
to the “132 and nine companies plus a certain class.” Granting
that, the entries from Transcom’s Hong Kong exporters would be
excluded from the scope of the review because Transcom’s Hong Kong
exporters were neither listed among the “132 and nine companies”
nor presently or previously part of or included within their names
the term “China National Machinery Import and Export Corporation”
or “Machinery Import and Export Corporation.” Thus, under this
interpretation, the aggregated language of the Notice of Initiation
could not amount to adequate notice that Transcom’s entries from
its Hong Kong exporters were subject to the review. See Transcom
CAFC, 182 F.3d at 883-84.
Court No. 97-02-00249 Page 19

designated in Timken’s request, that is, entities neither on the

list of “132 and nine companies” nor on “132 and nine companies

plus a certain class.” See Transcom CAFC, 182 F.3d at 882;

Transcom CIT, 24 CIT ___, ___, Slip op. 00-146 at 24, 31-32; Def.’s

Mem. at 48. This scope-enlarging statement, therefore, was in

conflict with Commerce’s scope-limiting statement that Commerce was

“not initiating an administrative review of any exporters and/or

producers who were not [properly] named in [the] review request”

submitted by Timken.

Between two incompatible agency statements, as with

conflicting statutory authorities, the more specific one must

prevail. Cf. Smith v. Berry Co., 198 F.3d 150, 152 (5th Cir. 1999)

(holding that among two conflicting statutes, the more specific

statute prevails over the more general one); see Kinney v.

Yerusalim, 812 F. Supp. 547, 550 (E.D. Penn. 1993) (finding that

the more specific agency regulation supersedes the more general

provision). The degrees of specificity of the two statements at

issue are different. The statement that Commerce was “not

initiating an administrative review of any exporters and/or

producers who were not [properly] named in [the] review request”

was a narrowly-tailored concrete declaration. It provided that any

party not included on the list of “132 and nine companies” (or “132

and nine companies plus a certain class”) had no reason to be
Court No. 97-02-00249 Page 20

concerned about the outcome of the review. Considering the

ambiguities inherently associated with descriptive language, one

can hardly make a statement more specific than a list of names.6

See e.g., Ayala v. United States, 980 F.2d 1342, 1344 (10th Cir.

1992); Issner v. Aldrich, 254 F. Supp. 696 (D. De. 1966); cf. S.

REP. No. 95-1071 (1978), reprinted in 1978 U.S.C.C.A.N. 2676, 2705

(noting that a list of names amounts to a precise statement). By

the same token, when Commerce expressly omitted Transcom’s Hong

Kong exporters in its list of “132 and nine companies” (or “132 and

nine companies plus a certain class”), it could hardly make a more

precise statement.

Conversely, Commerce’s descriptive statement that “[a]ll

exporters of TRBs from the People’s Republic of China [were]

conditionally covered” was intended to be a general, broader

statement subjecting the entries from indefinite entities Commerce

6
Assuming that Timken’s request for review was only valid
with regard to “132 and nine companies,” the list of these very
same entities was actually spelled out in the Notice of Initiation
and constituted a specific statement. See 60 Fed. Reg. 42,501-03.
The effect would be the same if Commerce’s review encompassed “132
and nine companies plus a certain class.” The mere fact that the
terms “China National Machinery Import and Export Corporation” or
“Machinery Import and Export Corporation” provided by Timken were
not recited in the Notice of Initiation changed nothing: the
content of Timken’s review request, a public document, was
available and known to any entity in the industry and could have
been read into the Notice of Initiation through Commerce’s
statement that “[a]ll exporters of TRBs from the People’s Republic
of China are conditionally covered”. See Def.’s Mem. at 4, n.3;
see also supra note 5.
Court No. 97-02-00249 Page 21

was unable to designate specifically to the scope of the review.7

See Def.’s Mem. at 48; Timken’s Resp. at 10-11; Transcom CAFC, 182

F.3d 882-83; Transcom CIT, 24 CIT ___, ___, Slip op. 00-146 at 31

(citing to Def.’s Mem. Opp’n Pl.’s Mot. J. Agency R. at 43,

Transcom CIT, 24 CIT ___, ___, Slip op. 00-146).

Consequently, the statement that Commerce was “not initiating

an administrative review of any exporters and/or producers who were

not [properly] named in [the] review request” was a more specific

declaration than the statement that “[a]ll exporters of TRBs from

the People’s Republic of China [were] conditionally covered.” The

former statement controlled the latter one and justified Transcom’s

reasonable reliance. See Kinney, 812 F. Supp. at 550.

Furthermore, the sum of the conflicting statements constituted

a notable deviation from the language Commerce used in its previous

notices. Except for the notice of Initiation directly preceding

that at issue, all of Commerce’s previous notices of Initiation did

not include any language either enlarging or limiting the scope of

relevant reviews. See Transcom CAFC, 182 F.3d at 882. The notice

7
“Definitions necessarily are imprecise and ambiguous because
they attempt to represent complex concepts and myriad factual
scenarios using the imprecise medium of language. Imprecision and
ambiguity are particularly common when . . . the concept underlying
the definition is both non-observable and qualitative in nature.”
Kevin H. Smith, Disabilities, Law Schools, and Law Students: A
Proactive and Holistic Approach, 32 AKRON L. REV. 1, 38 (1999).
Court No. 97-02-00249 Page 22

of Initiation directly preceding that at issue included no scope-

limiting language, it only provided that “[a]ll other exporters of

tapered roller bearings [were] conditionally covered . . . .”

Initiation of Antidumping Duty Administrative Reviews and Request

for Revocation in Part, 59 Fed. Reg. at 43,539. This statement was

apparently included by Commerce to alert the industry to an

enlargement of the scope of Commerce’s review. See Transcom CIT,

24 CIT ___, ___, Slip op. 00-146 at 27-29.

It was reasonable for a member of regulated industry such as

Transcom to assume that the inclusion of the new, scope-limiting

language into the Notice of Initiation at issue manifested

Commerce’s intent to amend Commerce’s prior policy, curtail the

scope of the pending review and alert the industry accordingly.

Cf. Chevron, 467 U.S. at 845 (explaining that an agency may choose

to reconcile and foster inconsistent goals and policies).

Agency statements provide guidance to regulated industries.

There is, however, a distinct difference between the measure of

guidance (and the ensuing industry responsibilities) created by a

narrowly paraphrased unambiguous statement and the measure of

guidance provided by a statement that is broad, general and

descriptive. An industry member is expected to contact its

regulating agency and inquire if the industry member finds a

general descriptive term ambiguous and in need of clarification.
Court No. 97-02-00249 Page 23

See Transcom CIT, 24 CIT ___, ___, Slip op. 00-146 at 26-31. An

inquiry, however, is not expected if the statement the agency makes

is a precise pronunciation based on statutes, regulations and case

law. Indeed, it would be anomalous to expect a member of the

industry to inquire whether the agency is aware of the applicable

statutes, regulations and pertinent case law, or whether the agency

actually meant to make the unambiguous statement it made. If, in

addition to making an unambigious specific statement, the agency

makes a conflicting general statement, it has nobody to blame but

itself for the resulting confusion. Cf. ITT World Communications,

Inc. v. FCC, 725 F.2d 732, 754 (D.C. Cir. 1984) ("[A]n agency does

not act rationally when it chooses and implements one policy and

decides to consider the merits of a potentially inconsistent policy

in the very near future."); Hamlin v. Hamlin, 192 N.Y. 164, 168

(1908) (holding that a statement in a pronunciation by a tribunal

inconsistent with another statement in the same pronunciation

allows the affected party to rely in good faith upon the statement

more favorable to the party’s contentions).

To summarize, the statement that Commerce was “not initiating

an administrative review of any exporters and/or producers who were

not [properly] named in [the] review request” gave each member of

the industry constructive notice and an implied promise that his

entries would be excluded from the review and liquidated “at rates
Court No. 97-02-00249 Page 24

equal to the cash deposit of . . . estimated antidumping duties

required on that merchandise at the time of entry” under 19 C.F.R.

§ 353.22(e) if the industry member was not properly identified in

Timken’s request. The inclusion of the statement that “[a]ll other

exporters of tapered roller bearings [were] conditionally covered”

created an element of confusion but did not change the message

ensuing from the aggregated language of the Notice of Initiation.

3. De Facto Admission of Being on Notice

Timken alleges that Transcom’s challenge to Commerce’s

Preliminary Results8 indicated that Transcom was aware that its

entries could be subject to the review. See Timken Br. at 14. The

Court disagrees.

According to its own regulation, Commerce must publish its

preliminary results together with an “invitation for argument.”

See 19 C.F.R. § 353.22(c)(5). The invitation for argument allows

“any interested party or U.S. Government agency [to] submit a ‘case

brief’” contesting Commerce’s preliminary results and to “present

in full all arguments that[,] in the submitter's view [, are]

8
Transcom entered its notice of appearance, arguing that
Commerce’s application of the default PRC rate was invalid with
respect to the entries from those entities that abstained from
responding to the questionnaires because they were not properly
designated in the Notice of Initiation and, thus, not notified of
the pending review. See Final Results, 62 Fed. Reg. 6186-87.
Court No. 97-02-00249 Page 25

relevant to [Commerce’s] final determination or final results . .

. .” 19 C.F.R. § 353.38(c)(1),(2) (1995) (emphasis supplied);

accord Preliminary Results, 61 Fed. Reg. at 40,615. Nothing in the

language of 19 C.F.R. § 353.38(c) requires the “interested party”

to be an entity negatively affected by Commerce’s final

determinations. See generally, 19 C.F.R. § 353.38(c). Moreover,

Commerce’s own definition of “interested party” does not include

the requirement. See 19 C.F.R. 353.2(k).9 Timken’s interpretation

adds an element not contemplated by Commerce to the language of 19

C.F.R. §§ 353.2(k), 353.38(c) and effectively substitutes

Commerce’s definitions with the implausible criterion based upon an

entity’s predictions about negative determinations Commerce could

make in the future.

9
According to Commerce’s definition, the term
[i]nterested party means: (1) [a] producer,
exporter, or United States importer of the
merchandise, or a trade or business association a
majority of the members of which are importers of
the merchandise; (2) [t]he government of the home
market country; (3) [a] producer in the United
States of the like product or seller (other than a
retailer) in the United States of the like product
produced in the United States; (4) [a] certified or
recognized union or group of workers which is
representative of the industry or of sellers (other
than retailers) in the United States of the like
product produced in the United States; (5) [a]
trade or business association a majority of the
members of which are producers in the United States
of the like product or sellers (other than
retailers) in the United States of the like product
produced in the United States . . . .
19 C.F.R. § 353.2(k).
Court No. 97-02-00249 Page 26

In addition, the inference of notice from the mere fact of an

entity’s comments to Commerce’s preliminary results would have two

undesirable effects: (1) it would defeat the goal of 19 C.F.R. §

353.38(c) that aims to encourage public participation in

administrative process rather than to penalize participants; and

(2) it would circumvent the notice requirements of 19 U.S.C. §

1675(a) and 19 C.F.R. § 353.22(c), both of which provide that a

notice must be given at the outset of a review rather than inferred

post factum from the entity’s eventual comments.

An entity’s good faith submission of a comment to Commerce’s

preliminary results made upon Commerce’s own invitation should

neither be interpreted as the entity’s concession of being a party

adversely affected by the determinations nor as an affirmation of

being properly on notice. Holding otherwise would be as anomalous

as stating that an amicus curiae admits being a properly served

defendant if he files a brief with the leave of court.

II. Other Contentions

Other issues disputed by Transcom and Commerce include: (a)

Commerce’s right to subject Transcom’s entries to the “best

information available” (“BIA”) rate resulting from the failure of

Transcom’s Hong Kong exporters to submit the information sought in

Commerce’s questionnaires; and (b) a violation of Transcom’s Fifth
Court No. 97-02-00249 Page 27

Amendment procedural Due Process rights resulting from Commerce’s

insufficient notice. See Pl.’s Br. at 28-37; Def.’s Mem. at 52-57.

None of these issues, however, needs to be reached by the

Court because Commerce’s notice failed the threshold issue of

procedural sufficiency. Commerce, therefore, is barred from the

imposition of the determinations made in the Final Results upon the

entries from Transcom’s Hong Kong exporters and from the

application of the default BIA rate to these entries. See Transcom

CAFC, 182 F.3d at 880-81 (stating that (a) “it would be

inappropriate for the government to ‘resort[ ] to BIA for companies

which were not specifically listed in the [N]otice of [I]nitiation

and not issued their own questionnaires,’ since those parties would

have had ‘no actual or constructive notice’”; and (b) the court

“need not address Transcom's argument that the lack of notice of

the scope of the administrative reviews violated Transcom's rights

under the due process clause of the Fifth Amendment to the

Constitution, because . . . Commerce's conduct . . . violated

Commerce's statutory and regulatory notice obligations in

connection with the administrative reviews.”)

CONCLUSION

For the foregoing reasons, the Court finds the notice provided

by Commerce in the Notice of Initiation procedurally deficient with
regard to Transcom’s entries from its Hong Kong exporters. This

case is remanded to Commerce to liquidate Transcom’s relevant

entries at a rate equal to the cash deposit required on the

merchandise at the time of entry pursuant to 19 C.F.R. § 353.22(e).

______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: November 22, 2000
New York, New York