Slip Op. 01-66
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. :
___________________________________:
Plaintiff, Consolidated Bearings Company (“Consolidated
Bearings”), moves pursuant to USCIT R. 56.1 for judgment upon the
agency record challenging the liquidation instructions number
8216117 (“Liquidation Instructions”) issued by the United States
Department of Commerce, International Trade Administration
(“Commerce”), on August 4, 1998, following Commerce’s final
determination entitled Final Results of Antidumping Duty
Administrative Review of Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof From the Federal Republic of
Germany (“Final Results”), 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 (“Amended Final Results”),
62 Fed. Reg. 32,755 (June 17, 1997). In the Liquidation
Instructions, Commerce required the United States Customs Service
(“Customs”) to assess antidumping duties on Consolidated Bearings’
imports of the merchandise manufactured by FAG Kugelfischer Georg
Schaefer KGaA (“FAG Kugelfischer”) at the cash deposit rates in
effect at the time of entry instead of at the weighted-average
rates determined for FAG Kugelfischer in the Amended Final
Results, 62 Fed. Reg. 32,755. Consolidated Bearings alleges that
the Liquidation Instructions are arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law and requests
the liquidation of the merchandise produced by FAG Kugelfischer and
imported by Consolidated Bearings during the period of review
covered in the Final Results, 56 Fed. Reg. 31,692, and the Amended
Final Results, 62 Fed. Reg. 32,755, at the rates provided in the
liquidation instructions issued by Commerce on September 9, 1997.
Held: Consolidated Bearings’ USCIT R. 56.1 motion is granted.
This case is remanded to Commerce to: (a) annul the Liquidation
Instructions issued by Commerce on August 4, 1998; and (b) take
Court No. 98-09-02799 Page 2
further actions not inconsistent with this opinion.
[Consolidated Bearings’ motion is granted. Case remanded].
Dated: June 5, 2001
Winthrop, Stimson, Putnam & Roberts (Christopher R. Wall and
Mark A. Monborne) for plaintiff.
Stuart E. Schiffer, Acting Assistant Attorney General; David
M. Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Lucius B. Lau); of counsel:
Myles S. Getlan, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, for the
United States.
OPINION
TSOUCALAS, Senior Judge: Plaintiff, Consolidated Bearings
Company (“Consolidated Bearings”), moves pursuant to USCIT R. 56.1
for judgment upon the agency record challenging the liquidation
instructions number 8216117 (“Liquidation Instructions”) issued by
the United States Department of Commerce, International Trade
Administration (“Commerce”), on August 4, 1998, following
Commerce’s final determination entitled Final Results of
Antidumping Duty Administrative Review of Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From the
Federal Republic of Germany (“Final Results”), 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 (“Amended
Court No. 98-09-02799 Page 3
Final Results”), 62 Fed. Reg. 32,755 (June 17, 1997). In the
Liquidation Instructions, Commerce required the United States
Customs Service (“Customs”) to assess antidumping duties on
Consolidated Bearings’ imports of the merchandise manufactured by
FAG Kugelfischer Georg Schaefer KGaA (“FAG Kugelfischer”) at the
cash deposit rates in effect at the time of entry instead of at the
weighted-average rates determined for FAG Kugelfischer in the
Amended Final Results, 62 Fed. Reg. 32,755. Consolidated Bearings
alleges that the Liquidation Instructions are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law and requests the liquidation of the merchandise produced
by FAG Kugelfischer and imported by Consolidated Bearings during
the period of review covered in the Final Results, 56 Fed. Reg.
31,692, and the Amended Final Results, 62 Fed. Reg. 32,755, at the
rates provided in the liquidation instructions issued by Commerce
on September 9, 1997.
BACKGROUND
On May 15, 1989, Commerce published antidumping duty orders on
certain antifriction bearings (“AFBs”) from Germany and eight other
countries. See Antidumping Duty Orders: Ball Bearings, Cylindrical
Roller Bearings, and Spherical Plain Bearings and Parts Thereof
From the Federal Republic of Germany, 54 Fed. Reg. 20,900.
Court No. 98-09-02799 Page 4
Commerce subsequently instructed Customs to require importers of
bearings subject to the order (including those manufactured in
Germany by FAG Kugelfischer) to post cash deposits equal to the
following final antidumping duty margin percentages determined for
FAG Kugelfischer in the original investigation. See Pl.’s Br. Supp.
Mot. J. Agency R. (“Pl.’s Br.”), Ex. 3 at 4-7.
Consolidated Bearings is a distributor of a range of
antifriction bearings manufactured in various countries. See id.,
Ex. 4. On November 16, 1989, Consolidated Bearings entered a
shipment of AFBs manufactured in Germany by FAG Kugelfischer. See
id. Customs required Consolidated Bearings to make a certain cash
deposit of estimated antidumping duties applicable to the
merchandise at issue, and such deposit was properly made. See id.
On December 12, 1989, Consolidated Bearings entered another
shipment of AFBs, part of which was manufactured by FAG
Kugelfischer, and made a cash deposit of estimated antidumping
duties applicable to this shipment of merchandise at the same rate
as that allocated to the entry of November 16, 1989. See id.
On June 1, 1990, Commerce published a notice that initiated an
administrative review of imports of different merchandise including
the merchandise that was: (1) entered between November 9, 1988, and
April 30, 1990; and (2) manufactured by FAG Kugelfischer. See id.,
Court No. 98-09-02799 Page 5
Ex. 5. Upon conclusion of the review, Commerce published the Final
Results providing certain assessment rates for all the merchandise
reviewed. See 56 Fed. Reg. 31,692.
Later on, Commerce amended the determinations made in the
Final Results, published a notice with regard to a pertinent court
decision that took place during the interim and established a
weighted-average antidumping duty rate for FAG Kugelfischer. See
Amended Final Results, 62 Fed. Reg. 32,755. Neither the notice nor
the Amended Final Results expressly provided whether or not this
antidumping duty rate would apply to the entries of Consolidated
Bearings.
On September 9, 1997, acting in accordance with the
determinations made in Final Results, 56 Fed. Reg. 31,692, and
Amended Final Results, 62 Fed. Reg. 32,755, Commerce instructed
Customs to liquidate entries of the merchandise produced by FAG
Kugelfischer and imported by certain designated importers, the list
of which did not include Consolidated Bearings, at certain rates.
See Pl.’s Br., Ex. 6.
Almost a year later, on August 4, 1998, Commerce sent the
Liquidation Instructions at issue to Customs with regard to any
merchandise that: (a) was produced in Germany; and (b) still
remained unliquidated after the application of prior liquidation
Court No. 98-09-02799 Page 6
instructions including that of September 9, 1997. See id., Ex. 7.
The Liquidation Instructions required Customs to liquidate the
merchandise “at the deposit rate[s] required at the time of entry
of the merchandise,” the rates much higher than those applicable
under the prior liquidation instructions of September 9, 1997. Id.
The merchandise of Consolidated Bearings fell subject to the
Liquidation Instructions at issue.
I. JURISDICTION
As a preliminary matter, there is a jurisdictional question.
Consolidated Bearings and Commerce agree that jurisdiction is
sought under 28 U.S.C. § 1581(i) (1994), the court’s residual
jurisdiction provision. See Pl.’s Br. Reply Def.’s Mem. Opp. Br.
Supp. Pl.’s Mot. J. Agency R. (“Pl.’s Reply”) at 4; Def.’s Mem.
Opp. Br. Supp. Pl.’s Mot. J. Agency R. (“Def.’s Mem.”) at 8-10.
It is incumbent upon the Court to independently assess the
jurisdictional basis for a case, see Ad Hoc Comm. of Fla. Producers
of Gray Portland Cement v. United States, 22 CIT ___, ___, 25 F.
Supp. 2d 352, 357 (1998), a principal that is especially true where
a party seeks to invoke the court’s residual jurisdiction
authority. And, “[i]t is well established that the residual
jurisdiction of the court under [sub]section 1581(i) ‘may not be
invoked when jurisdiction under another [sub]section of § 1581 is
Court No. 98-09-02799 Page 7
or could have been available, unless the relief provided under that
other subsection would be manifestly inadequate.’” Id. (citing
Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359
(Fed. Cir. 1992) (emphasis in original)).
In the given case, it is appropriate to exercise residual
jurisdiction because jurisdiction under other subsections of
section 1581 is not available. Commerce suggests that subsections
1581(a) and 1581(c) could have served as viable jurisdictional
alternatives for Consolidated Bearings. See Def.’s Mem. at 15-16.
Commerce’s liquidation instructions, however, are not subject to
review under subsection 1581(a) because Commerce, not Customs, is
the agency responsible for issuing the instructions and determining
the amount of antidumping duty to be assessed. Commerce’s
liquidation instructions also are not reviewable under subsection
1581(c) because they were not part of the Final Results or the
Amended Final Results. Rather, such instructions are issued after
relevant final determinations are published and, accordingly, it
was impossible for Consolidated Bearings to contest the
instructions as required under 19 U.S.C. § 1516a(a)(2)(B)(iii)
(1994). And finally, none of the other subsections of section 1581
of Title 19 provides a viable basis for jurisdiction. See
generally, Heveafil Sdn. Bhd. v. United States, 1998 Ct. Intl.
Trade LEXIS 111; Slip Op. 98-115 (Aug. 11, 1998). Accordingly, the
Court No. 98-09-02799 Page 8
issue of antidumping law presented in this case is appropriate for
review under subsection 1581(i).
II. AFFIRMATIVE DEFENSES
In addition to its jurisdictional challenge, Commerce raises
two affirmative defenses to Consolidated Bearings’ claim.
Specifically, Commerce asserts that: (1) the action was commenced
beyond the two-year limitation period contained in 28 U.S.C. §
2636(i)(1994); and (2) Consolidated Bearings has failed to exhaust
its administrative remedies. See Def.’s Mem. at 9-10, 22-26.
A. Statute of Limitations Contained in 28 U.S.C. § 2636(i)
1. Standard of Review
As a preliminary matter, this Court determines the appropriate
standard of review to be applied to Commerce’s interpretation of 28
U.S.C. § 2636(i).
A statute of limitations is not a matter within the particular
expertise of an agency. Rather, it presents “a clearly legal issue
that courts are better equipped to handle.” Bamidele v. INS, 99
F.3d 557, 561 (3rd Cir. 1996) (quoting Dion v. Secretary of Health
and Human Serv., 823 F.2d 669, 673 (1st Cir. 1987), and citing Lynch
v. Lyng, 872 F.2d 718, 724 (6th Cir. 1989), and In re Oliver M. Elam
Jr., Co., 771 F.2d 174, 181 (6th Cir. 1985)). Therefore, Commerce’s
Court No. 98-09-02799 Page 9
interpretation of 28 U.S.C. § 2636(i) is not subject to deference
under the two-step analysis prescribed by Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and
it is incumbent upon the Court to independently assess the
boundaries set by the language of section 2636(i).
2. Contentions of the Parties
Relying on Mitsubishi Elecs. Am., Inc. v. United States
(“Mitsubishi”), 44 F.3d 973 (Fed. Cir. 1994), Commerce argues that
this action is time-barred. See Def.’s Mem. at 22-24. Commerce
asserts that Consolidated Bearings’ cause of action accrued on the
last day upon which Consolidated Bearings had an opportunity to
request an administrative review under Commerce’s notice of such
opportunity, see Opportunity To Request Administrative Review of
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation (“Notice”), 55 Fed. Reg. 19,093 (May 8, 1990),
because Commerce’s notice provided for an automatic assessment in
the absence of a request for review. See id.
Consolidated Bearings maintains that Commerce: (1) did not
resort to the automatic assessment regulation; and (2) under the
circumstances of the case at bar, Consolidated Bearings had no
reason to believe that Commerce would resort to such automatic
assessment regulation. See Pl.’s Reply at 15-18.
Court No. 98-09-02799 Page 10
3. Analysis
Section 2636(i) of Title 28 reads as follows:
A civil action of which the Court of International
Trade has jurisdiction under section 1581 of this title,
other than an action specified in subsections (a)-(h) of
this section, is barred unless commenced in accordance
with the rules of the court within two years after the
cause of action first accrues.
Indeed, both parties correctly note that “a claim accrues when
‘the aggrieved party reasonably should have known about the
existence of the claim.’” Mitsubishi, 44 F.3d at 978 (quoting St.
Paul Fire & Marine Ins. Co. v. United States, 959 F.2d 960, 964
(Fed. Cir. 1992)); accord Def.’s Mem. at 22, Pl.’s Reply at 17-18.
The Mitsubishi court held that the plaintiff’s cause of action
accrued on the day following the expiration of the deadline to
request an administrative review. See id. The Mitsubishi court
clarified that
[the plaintiff’s] claim arises from the automatic
assessment of antidumping duties under 19 C.F.R. §
353.53a(d)(1) (1987). This regulation applies once a
party's opportunity to request an administrative review
expires. Commerce's initial notice allowed [the
plaintiff] to request review through [a specified date].
Neither [the plaintiff] nor any other interested party
requested administrative review by that time. Section
353.53a(d)(1)'s automatic assessment procedure therefore
went into effect on [the specified date]. The regulation
and Commerce's notice informed [the plaintiff] that
Commerce would assess duties on the [merchandise]
beginning [the specified date]. [The plaintiff’s] cause
of action accrued, and the statute of limitations began
to run, on [the specified date] when all the events
necessary to state the claim had occurred.
Court No. 98-09-02799 Page 11
Mitsubishi, 44 F.3d at 978 (internal citation omitted).
Thus, the Mitsubishi court calculated the cut-off date based
on the particular fact that there was no request for an
administrative review. The circumstances of the case at bar are
exactly opposite.
Unlike the situation in Mitsubishi, Commerce’s reliance upon
19 C.F.R. § 353.53a(d)(1) is misplaced because it is uncontested
that Commerce has received requests to conduct administrative
reviews of antidumping duty orders concerning the entries covered
by the Notice, 55 Fed. Reg. 19,093, see Initiation of Antidumping
Administrative Reviews of Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof From the Federal Republic of
Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand
and the United Kingdom, 55 Fed. Reg. 23,575 (June 11, 1990), and in
fact conducted an administrative review that covered, among others,
the merchandise produced by FAG Kugelfischer.1 See Final Results,
1
Consolidated Bearings contends that Consolidated Bearings
itself timely requested a review of its entries. See Pl.’s Reply
at 16 n.6. The point is contrary to the assertion made by Commerce
which maintains that Consolidated Bearings did not request a review
of its entries. See Def.’s Mem. at 23-24. In support of its
claim, Consolidated Bearings points to a letter from an attorney
for Torrington Company, a petitioner in the review at issue who is
unrelated to Consolidated Bearings. See Pl.’s Reply at 16 n.6.
Commerce alleges that this letter (a public document that “failed
to [be] include[d]” in the administrative record due to an omission
made by an attorney employed by Commerce, see Letter by Myles S.
Court No. 98-09-02799 Page 12
56 Fed. Reg. at 31,692. Therefore, neither the holding of
Mitsubishi nor 19 C.F.R. § 353.53a(d)(1) is applicable to the case
at bar. Accord Pl.’s Reply at 16-17.
Both parties correctly note that a claim accrues for purposes
of 28 U.S.C. § 2636(i) when “‘the aggrieved party reasonably should
have known about the existence of the claim.’” Pl.’s Reply at 17-
18, Def.’s Mem. at 22 (both quoting Mitsubishi, 44 F.3d at 978
(quoting, in turn, St. Paul Fire & Marine Ins. Co. v. United
States, 959 F.2d 960, 964 (Fed. Cir. 1992)). Granted that,
Consolidated Bearings could not have reasonably envisioned or known
about the existence of a claim arising from Commerce’s application
of an automatic assessment procedure until Commerce actually sought
the application of the rate ensuing from such procedure,
specifically until August 4, 1998, the date when Commerce
instructed Customs to liquidate entries of Consolidated Bearings at
the cash deposit rate.
Getlan (May 25, 1999)), should not be considered by the Court. See
Def.’s Mem. at 26. While noting that: (a) a request for a review
by an unrelated entity is not equal to a request for a review by
Consolidated Bearings; and (b) Commerce should not be allowed to
capitalize on the error Commerce itself made, the Court need not
reach the merits of this controversy. For the purposes of this
opinion it is sufficient to observe that neither party contests the
following: (a) a review was indeed undertaken, see Pl.’s Br. at 5;
Def.’s Mem. at 1; accord Final Results, 56 Fed. Reg. 31,692; and
(b) merchandise manufactured by FAG Kugelfischer was indeed subject
to the review. See Pl.’s Br. at 5; Def.’s Mem. at 4; accord Final
Results, 56 Fed. Reg. 31,692.
Court No. 98-09-02799 Page 13
Based on the foregoing, this Court concludes that the Statute
of Limitations contained in section 2636(i) of Title 28 was
properly tolled upon Consolidated Bearings’ filing of a summons and
complaint on September 11, 1998.
B. Exhaustion of Administrative Remedies
1. Background
The exhaustion doctrine requires a party to present its claims
to the relevant administrative agency for the agency’s
consideration before raising these claims to the Court. See
Unemployment Compensation Comm’n of Alaska v. Aragon, 329 U.S. 143,
155 (1946) (“A reviewing court usurps the agency’s function when it
sets aside the administrative determination upon a ground not
theretofore presented and deprives the [agency] of an opportunity
to consider the matter, make its ruling, and state the reasons for
its action”). There is, however, no absolute requirement of
exhaustion in the Court of International Trade in non-
classification cases. See Alhambra Foundry Co. v. United States,
12 CIT 343, 346-47, 685 F. Supp. 1252, 1255-56 (1988). Section
2637(d) of Title 28 directs that “the Court of International Trade
shall, where appropriate, require the exhaustion of administrative
remedies.” By its use of the phrase “where appropriate,” Congress
vested discretion in the Court to determine the circumstances under
Court No. 98-09-02799 Page 14
which it shall require the exhaustion of administrative remedies.
See Cemex, S.A. v. United States, 133 F.3d 897, 905 (Fed. Cir.
1998). Therefore, because “each exercise of judicial discretion in
not requiring litigants to exhaust administrative remedies,” the
Court is authorized to determine proper exceptions to the doctrine
of exhaustion. Alhambra Foundry, 12 CIT at 347, 685 F. Supp. at
1256 (citing Timken Co. v. United States, 10 CIT 86, 93, 630 F.
Supp. 1327, 1334 (1986) rev’d in part on other grounds Koyo Seiko
Co. v. United States, 20 F.3d 1156 (Fed. Cir. 1994)).
In the past, the Court has exercised its discretion to obviate
exhaustion where: (1) requiring it would be futile, see Rhone
Poulenc, S.A. v. United States, 7 CIT 133, 135, 583 F. Supp. 607,
610 (1984) (“it appears that it would have been futile for
plaintiffs to argue that the agency should not apply its own
regulation”), or would be “inequitable and an insistence of a
useless formality” as in the case where “there is no relief which
plaintiff may be granted at the administrative level,” United
States Cane Sugar Refiners’ Ass’n v. Block, 3 CIT 196, 201, 544 F.
Supp. 883, 887 (1982); (2) a subsequent court decision has
interpreted existing law after the administrative determination at
issue was published, and the new decision might have materially
affected the agency’s actions, see Timken, 10 CIT at 93, 630 F.
Supp. at 1334; (3) the question is one of law and does not require
Court No. 98-09-02799 Page 15
further factual development and, therefore, the court does not
invade the province of the agency by considering the question, see
id.; R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1337-39
(D.C. Cir. 1983); and (4) the plaintiff had no reason to suspect
that the agency would refuse to adhere to clearly applicable
precedent. See Philipp Bros., Inc. v. United States, 10 CIT 76,
79-80, 630 F. Supp. 1317, 1321 (1986).
2. Contentions of the Parties
Consolidated Bearings asserts that the exhaustion doctrine
does not apply to the case at bar because the circumstances of the
case qualify as an exception. Specifically, Consolidated Bearings
maintains that it had no reason to expect that Commerce would deny
application of 19 U.S.C. § 1675(a)(2) to its entries. See Pl.’s
Reply at 17. Alternatively, Consolidated Bearings contends that
the issue at hand is of purely legal nature that requires no
further agency involvement. See id. at 19-23.
Commerce alleges that the “purely legal” exception: (1) is a
“weak one,” Def.’s Mem. at 25-26 (citing Aramide Maatschappij
V.o.F. v. United States, 19 CIT 1095, 1098 n.4, 901 F. Supp. 353,
357 n.4 (1995)); (2) does not apply to the case at bar, see id. at
24-26; and (3) would allow Consolidated Bearings to introduce,
under the circumstances of the case, evidence that would be
Court No. 98-09-02799 Page 16
otherwise precluded from being considered by the court.2 See id.
at 26.
3. Analysis
The circumstances of the case at bar qualify for the “pure
question of law” exception.3 The requirements for the “pure
question of law” exception, initially ambiguous, see, e.g.,
Aramide Maatschappij, 19 CIT at 1098, 901 F. Supp. at 357, were
markedly delineated by a number of cases. See Saarstahl AG v.
United States, 20 CIT 1413, 1420, 949 F. Supp. 863, 869 (1996);
Timken Co. v. United States, 15 CIT 658, 659-60, 779 F. Supp. 1402,
1404-05 (1991); Budd Co., Wheel & Brake Div. v. United States, 15
CIT 446, 452, 773 F. Supp. 1549, 1555 (1991); Seattle Marine
Fishing Supply Co. v. United States, 12 CIT 60, 74, 679 F. Supp.
1119, 1130 (1988); Hercules, Inc. v. United States, 11 CIT 710,
735, 673 F. Supp. 454, 476 (1987); Rhone Poulenc, S.A., 7 CIT at
2
See note 1.
3
Consolidated Bearings’ argument that the case qualifies for
the “clearly applicable precedent” exception because Consolidated
Bearings did not expect Commerce to refuse the application of 19
U.S.C. § 1675(a)(2) lacks merit. Consolidated Bearings conflates
substantive and procedural hurdles. The question of whether
Commerce refused to apply 19 U.S.C. § 1675(a)(2) is a substantive,
not procedural issue. In essence, Consolidated Bearings asks this
Court to establish that the application of 19 U.S.C. § 1675(a)(2)
is the only alternative procedurally in order so the Court could
examine whether the very same section is not the only alternative
substantively.
Court No. 98-09-02799 Page 17
136, 583 F. Supp. at 611. Specifically, the following non-
exhaustive list of requirements is contemplated: (a) in order to
qualify for the exception, plaintiff shall raise a new argument;
(b) this argument shall be of purely legal nature; (c) the inquiry
shall require neither further agency involvement nor additional
fact finding or opening up the record; and (d) the inquiry shall
neither create undue delay nor cause expenditure of scarce party
time and resources. See id.
In view of these requirements, Consolidated Bearings is
correct in its conclusion that
[t]his case presents a pure legal issue that fits
squarely within this exception. . . . [The question
posed] requires only an examination of [19 U.S.C. §
1675(a)(2)] and employment of the traditional tools of
statutory construction. It does not . . . require the
application of any special . . . expertise [by Commerce]
or the development of a special factual record either
before or after the Court’s consideration of the issue.
Pl.’s Reply at 20, accord McKart v. United States, 395 U.S. 185,
197-99 (1969) (addressing the issue of the relative areas of
expertise of courts and agencies).
III. 19 U.S.C. § 1675(a)(2) AND DIFFERENT DUMPING MARGINS ASSIGNED
TO MANUFACTURER AND RESELLER
A. Standard of Review
Section 2640(e) of Title 28 provides that “[i]n any civil
action not specified in this section, the [court] shall review the
Court No. 98-09-02799 Page 18
matter as provided in [5 U.S.C. § 706 (1994)].” 28 U.S.C. §
2640(e) (1994). Because Section 2640 does not specifically address
civil actions filed under 28 U.S.C. § 1581(i), the court must
review the case at bar under the general standard and “hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law . . . .” 5 U.S.C. §
706(2)(A).
It is well-settled that the arbitrary and capricious standard
of review is not merely deferential to agency action, but the most
deferential standard of review. See In re Gartside, 203 F. 3d
1305, 1312 (Fed. Cir. 2000) (noting that “[b]ecause this [arbitrary
and capricious] standard is generally considered to be the most
deferential . . . standard[] of review, . . . the reviewing court
analyzes only whether a rational connection exists between the
agency’s factfindings and its ultimate action”) (citations
omitted). Therefore, the court must uphold the agency’s actions
unless Commerce’s conclusion was plainly unreasonable or
irrational. See Boltex Mfg. Co. v. United States, 2000 Ct. Intl.
Trade LEXIS 119 (Sep. 8, 2000).
B. Background
On September 9, 1997, Commerce instructed Customs to liquidate
Court No. 98-09-02799 Page 19
entries of the merchandise produced by FAG Kugelfischer and
imported by certain importers, the list of which did not include
Consolidated Bearings, at a certain “manufacturer’s” rate.4 See
Pl.’s Br., Ex. 6. Almost a year later, on August 4, 1998, Commerce
sent the 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.” Id., Ex. 7. 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.
C. Contentions of the Parties
Consolidated Bearings maintains that the Liquidation
Instructions are arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. See Pl.’s Br. at 18-20.
Consolidated Bearings asserts that 19 U.S.C. § 1675(a)(2) requires
4
While there were two types of rates involved, that is, rates
applicable to cylindrical roller bearings and those applicable to
ball bearings, the argument and the discussion is analogous in both
cases. The Court, therefore, does not address the specific numbers
but rather treats the issue of general discrepancy in assessment of
“deposit” rates and their respective “manufacturer’s” rates, the
discrepancy applicable to the entries of each type of bearings.
Court No. 98-09-02799 Page 20
that antidumping duties be assessed on an importer’s entries at the
manufacturer’s rate if: (a) the importer purchased the merchandise
from a reseller that does not have its own cash deposit rate; (b)
Commerce conducted an administrative review involving the
merchandise; and (c) Commerce assigned a dumping margin for the
manufacturer but not the reseller. See Pl.’s Reply at 20.
Consolidated Bearings contends that acting otherwise would be
arbitrary and capricious in view of the fact that, according to
Consolidated Bearings, Commerce’s determinations in the Final
Results, 56 Fed. Reg. 31,692, and the Amended Final Results, 62
Fed. Reg. 32,755, did not address the issue of potential difference
in assessment of “manufacturer” and reseller’s margins. See id. at
24-25. In addition, Consolidated Bearings asserts that Commerce
unlawfully circumvented the notice and comment procedure by
adopting the rule reflected in the Liquidation Instructions, thus
defying Consolidated Bearings’ right to procedural due process.
See id. at 33-36.
Commerce argues that the Liquidation Instructions were in
accordance with law and that it employed a rational basis
reflecting a new Commerce policy that was properly implemented.
See Def.’s Mem. at 27-39. Commerce also maintains that the
Liquidation Instructions were not subject to the notice and comment
requirement. See id. at 40-46. Finally, Commerce states that its
Court No. 98-09-02799 Page 21
actions could not violate Consolidated Bearings’ right to
procedural due process because Consolidated Bearings has no right
to continued importation. See id. at 43-44.
D. Analysis
1. Procedural Due Process
Commerce asserts that Consolidated Bearings’ Fifth Amendment
Due Process rights could not have been violated because
Consolidated Bearings does not have a protected property interest
in its right to the continued importation of its merchandise. See
id. Commerce points out that “no one has a Congressionally
untouchable right to the continued importation of any product.”
Id. (quoting Arjay Assocs., Inc. v. Bush, 891 F.2d 894 (Fed. Cir.
1989)).
It is impossible to comprehend how an importer’s lack of
vested right to import merchandise in the future negates the
obligation to provide the importer with notice prior to imposing an
antidumping duty for the merchandise already imported. The Court
shares Consolidated Bearings’ bewilderment, see Pl.’s Reply at 34-
36, and shall not entertain Commerce’s argument since it fails to
differentiate between substantive and procedural Due Process claims
Court No. 98-09-02799 Page 22
and lacks any merit.5
2. Notice and Comment Requirement
Consolidated Bearings maintains that the Liquidation
Instructions were effectively a rule within the meaning of the
Administrative Procedure Act (“APA”) and, therefore, subject to
notice and comment procedure applicable to the rule making. See
Pl.’s Reply at 33-34.
The definition of a “rule” within the meaning of the APA
appears at 5 U.S.C. § 551(4) (1994) and reads as follows:
“[R]ule” means the whole or a part of an agency statement
of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or
practice requirements of an agency . . . .
Detailed requirements of the process of rule making are
provided in 5 U.S.C. § 553 (1994) and include notice and comment
procedural requirements. See 5 U.S.C. § 553(b),(c). The statute
sets very narrow parameters for an agency to properly dispense with
the requirements. See 5 U.S.C. § 553(b).
5
This Court has pointed out the very same mistake to Commerce
on previous occasions. See Transcom, Inc. v. United States, 24 CIT
___, ___, 121 F. Supp. 2d 690, 707 (2000); Transcom, Inc. v. United
States, 22 CIT ___, ___, 5 F. Supp. 2d 984, 990 (1998) rev’d on
other grounds, Transcom, Inc. v. United States, 182 F.3d 876 (Fed.
Cir. 1999). Obviously, to no avail.
Court No. 98-09-02799 Page 23
The Liquidation Instructions at issue read as follows:
If [Customs is] still suspending liquidation on [those]
entries of AFBs from Germany during the period 11/9/88
through 4/30/90 after applying all of the above
liquidation instructions [including that of September 9,
1997, Customs] should now liquidate such entries at the
deposit rate required at the time of entry of the
merchandise.
Pl.’s Br., Ex. 7.
Had Commerce intended for the language of the Liquidation
Instructions to set out Commerce’s new policy, Commerce’s action
would clearly qualify as a rule and be subject to the notice and
comment procedure detailed in 5 U.S.C. § 553. The Court, however,
agrees with Commerce that the extreme specificity of the language
employed, particularly: (a) the designation of AFBs among all other
types of merchandise; (b) the designation of German origin of the
merchandise; (c) the designation of the exact time of importation
of the merchandise; and (d) the statement narrowing the
applicability of the Liquidation Instructions to the merchandise
which liquidation was still suspended after application of all
prior instructions, evinced Commerce’s desire to “issue[] importer-
specific liquidation instructions for [specific] merchandise,” see
Def.’s Mem. at 41, rather than to set out a general rule providing
that, “under the antidumping law, when an importer purchases a
particular manufacturer’s merchandise from a reseller that does not
have its own cash deposit rate[,] . . . antidumping duties will be
Court No. 98-09-02799 Page 24
assessed on the importer’s entries at [the] cash deposit rate
instead of at the rate determined for the manufacturer . . . .”
Pl.’s Reply at 33-34.
Therefore, the notice and comment requirements contained in 5
U.S.C. § 553 are inapplicable to the issuance of the Liquidation
Instructions.
3. Statement of Basis and Arbitrary and Capricious Act
Both parties treat the questions of: (a) whether Commerce
properly explained the basis for the Liquidation Instructions; and
(b) whether Commerce’s action was arbitrary and capricious, as two
independent issues. See Pl.’s Reply at 24-25, 30–33, Def.’s Mem.
at 27-35, 38-40. The determination of one, however, is inseparable
from the other.
The court will uphold Commerce’s actions unless Commerce’s
conclusion is unreasonable or irrational. See Boltex Mfg., 2000
Ct. Intl. Trade LEXIS 119.
The reasoning process required for a rational course of
conduct requires more than an articulation of the factors
considered by [an] agency. When [undertaking certain
conduct], the agency must explain how those considered
factors justify the [conduct taken]. The gap between the
facts and the conclusion must be filled.
Madison Metro. Sch. Dist. v. School Dist. Boundary Appeal Bd., 1998
Court No. 98-09-02799 Page 25
Wisc. App. LEXIS 1200 (Wis. Ct. App. 1998) (quoting Kammes v.
Mining Inv. & Local Impact Fund Bd., 340 N.W. 2d 206, 213 (Wis. Ct.
App. 1983).
Therefore, Commerce’s action was arbitrary and capricious if
Commerce failed to explain the basis for the Liquidation
Instructions at issue.
a. Insufficiency of Explanations
Provided by Commerce
Commerce maintains that it properly provided the reasoning for
the Liquidation Instructions. See Def.’s Mem. 38-40.
Specifically, Commerce points to three documents made public during
the review.
The first document Commerce cites to is the Notice, 55 Fed.
Reg. 19,093, which language states that Commerce would “instruct
[Customs] to assess antidumping . . . duties . . . at a rate equal
to the cash deposit” if no request for a review is received. As
discussed supra, this statement cannot lend support to Commerce’s
position because: (a) requests for review were received; and (b)
this general default language cannot qualify as an explanatory
statement disclosing Commerce’s intent to specifically assess the
merchandise by FAG Kugelfischer and Consolidated Bearings’ entries
of merchandise by FAG Kugelfischer at different rates.
Court No. 98-09-02799 Page 26
The second document that Commerce relies upon is Preliminary
Results of Antidumping Duty Administrative Reviews and Partial
Termination of Administrative Reviews of Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof from the
Federal Republic of Germany (“Preliminary Results”), 56 Fed. Reg.
11,200 (Mar. 15, 1991). In this document Commerce stated the
following:
Torrington, the petitioner, has alleged that bearings
produced in Germany by SKF Sverige AB have been exported
to the United States through SKF's Austrian affiliates,
SKF Steyr GmbH and Steyr Walzlager GmbH, and that these
sales have not been reported to [Commerce] by SKF. SKF
claims that there have been no U.S. sales of merchandise
subject to these orders that were made by its Austrian
affiliates during the period of review. Because the
evidence submitted by Torrington in support of its
allegations is inadequate, we have no reason to believe
that SKF submitted an incomplete response.
Id. at 11,202.
Commerce chooses to read this language as: (a) an axiomatic
statement that an importer must submit evidence to Commerce to
support the importer’s allegations that merchandise sold to third
countries was sold with the knowledge that merchandise was destined
for the United States; and, moreover, (b) a statement disclosing
Commerce’s intent to specifically6 assess the merchandise by FAG
6
It shall be particularly stressed that this part of
discussion addresses solely Commerce’s desire to assess specific
rates for FAG Kugelfischer and Consolidated Bearings. Had Commerce
intended to create a general regime, Commerce’s action would be
Court No. 98-09-02799 Page 27
Kugelfischer and Consolidated Bearings’ entries of merchandise by
FAG Kugelfischer at different rates. See Def.’s Mem. at 38.
Trying to explain the logical gap between such Commerce’s intent
and the actual language used in the Preliminary Results, Commerce
points out that the Court should “uphold a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.”
Id. at 39 (quoting Humane Soc. of United States v. Clinton, 23 CIT
___, ___, 44 F. Supp. 2d 260, 271 (1999) (quoting, in turn, Motor
Vehicle Mfr. Ass’n of United States, Inc. v. State Farm Mut. Auto.
Ins., Co., 463 U.S. 29, 43 (1983)).
While the Court agrees with the premise that each agency
statement cannot be expected to present an example of clarity, the
Court shares Consolidated Bearings’ anxiety over the path that
Commerce took to connect these two utterly unrelated propositions.
Compare Madison Metro. Sch. Dist., 1998 Wisc. App. LEXIS 1200.
Finally, Commerce relies on the language contained in the
Final Results, 56 Fed. Reg. 31,692. See Def.’s Mem. at 38-40. The
language Commerce cites addresses the following: (a) the assessment
of merchandise imported from Japan by Peer International, a
reseller unrelated to Consolidated Bearings; and (b) Commerce’s
invalid for failure to observe the notice and comment requirements
considered supra.
Court No. 98-09-02799 Page 28
methodology of calculating: (1) purchase price sales; (2)
exporter’s sales price sales; (3) sales for companies utilizing the
price list option of reporting information; and (4) entries that
passed through a foreign trade zone before entry into the United
States. Id. Commerce concludes that these statements should have
been read and understood as a statement disclosing Commerce’s
intent to specifically assess the merchandise by FAG Kugelfischer
and Consolidated Bearings’ entries of merchandise by FAG
Kugelfischer at different rates.
Commerce’s logic escapes this Court. A discussion of
merchandise imported by an unrelated reseller from an unrelated
country could hardly be interpreted as providing any clear default
criterion, much less a criterion specifying the circumstances under
which Commerce would assess at different rates the merchandise by
FAG Kugelfischer and Consolidated Bearings’ entries of merchandise
by FAG Kugelfischer. Similarly, a spelled out set of particular
calculations cannot be read as providing for another mode of
calculation in an unrelated scenario without delineating such other
calculation and scenario with reasonable clarity. Except in the
rarest circumstances, a failure to directly address an issue cannot
qualify or be interpreted as a statement. See generally, Mayers v.
INS, 175 F.3d 1289 (11th Cir. 1999); Henderson v. INS, 157 F.3d 106
Court No. 98-09-02799 Page 29
(2nd Cir. 1998); Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y.
1999). Therefore, none of the three sources on which Commerce
relies specified the basis for Commerce’s decision to assess the
merchandise by FAG Kugelfischer and Consolidated Bearings’ entries
of merchandise by FAG Kugelfischer at different rates.
b. Other Deficiencies in Commerce’s Actions
The Liquidation Instructions issued by Commerce on August 4,
1998, read as follows:
If [Customs is] still suspending liquidation on [those]
entries of AFBs from Germany during the period 11/9/88
through 4/30/90 after applying all of the above
liquidation instructions [including that of September 9,
1997, Customs] should now liquidate such entries at the
deposit rate required at the time of entry of the
merchandise.
Pl.’s Br., Ex. 7.
The Court sees a few problems with Commerce’s action.
Considering that on September 9, 1997, Commerce already instructed
Customs to liquidate certain entries subject to the review at
certain rates, see Pl.’s Br., Ex. 6, it is entirely unclear to this
Court why, almost a year later, Commerce felt compelled to issue
the Liquidation Instructions at issue if, as Commerce now contends,
the conclusions contained in these Liquidation Instructions were
already self-evident from the very same record and from the
previously issued September 9, 1997, instructions.
Court No. 98-09-02799 Page 30
Furthermore, the examination of the particular language
employed in the Liquidation Instructions prompts the Court to
conclude that Commerce’s use of the subjunctive mood, specifically
Commerce’s choice to begin the directive with the word “if,”
demonstrates that Commerce indeed was doubtful whether the
conclusions contained in the Liquidation Instructions were either
reasonably discernible from the record that Commerce compiled or in
accord with its September 9, 1997, instructions.
Such action by Commerce shows that Commerce contemplated a
scenario under which certain entries of AFBs from Germany,
including the merchandise manufactured by FAG Kugelfischer, could
have been liquidated prior to or on August 3, 1998, (the day prior
to the date of issuance of the Liquidation Instructions) at one
rate (that is, the rate provided for in the September 9, 1997,
instructions) while other entries, identical to the previously-
described entries in every respect but yet unliquidated as of the
date of issuance of the Liquidation Instructions, became subject to
entirely different rate on September 4, 1998.
Subsection 1675(a)(2) of Title 19 governs the procedure for
determination of antidumping duties and provides guidelines for
Court No. 98-09-02799 Page 31
calculations, bond requirements and time frames.7 See 19 U.S.C. §
1675(a)(2) (1994). The subsection ends with the statement that
“[t]he determination [made in accordance with these guidelines]
shall be the basis for the assessment of . . . antidumping duties
on entries of merchandise covered by the determination . . . .”
See 19 U.S.C. § 1675(a)(2)(C). Nowhere does the statute provide
for Commerce’s right to reassessment or redetermination. An entity
dealing in merchandise that is covered by a properly conducted
determination and subject to the duties assessed accordingly,
should be able to rely on such assessment without apprehension that
the determining agency would change its mind nearly a year later
and reform the properly assessed rates. Indeed, such whimsical
agency conduct manifests lack of a rational connection between
Commerce’s initial fact findings and its ultimately inconsistent
course of actions. Compare In re Gartside, 203 F. 3d at 1312.
7
The Court does not reach the merits of Consolidated
Bearings’ claim that 19 U.S.C. § 1675(a)(2) requires that
antidumping duties be assessed on an importer’s entries at the
manufacturer’s rate if: (1) the importer purchased the merchandise
from a reseller that does not have its own cash deposit rate; and
(2) Commerce conducted an administrative review involving the
merchandise and assigned a dumping margin for the manufacturer but
not the reseller. See Pl.’s Reply at 20. Because it is
uncontested that acting under the mandate of 19 U.S.C. §
1675(a)(2), Commerce reached a determination, see Final Results, 56
Fed. Reg. 31,692, and Amended Final Results, 62 Fed. Reg. 32,755,
and, in accordance with such determination issued its September 9,
1997, liquidation instructions, the Court addresses solely the
issue of discrepancy in assessments under the September 9, 1997
liquidation instructions and the Liquidation Instructions at issue.
Court No. 98-09-02799 Page 32
Based on the foregoing, the Court finds the Liquidation
Instructions issued by Commerce on August 4, 1998, arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law. See 5 U.S.C. § 706(2)(A).
CONCLUSION
This case is remanded to Commerce to: (a) annul the
Liquidation Instructions issued by Commerce on August 4, 1998; and
(b) take further actions not inconsistent with this opinion.
_________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: June 5, 2001
New York, New York
Consolidated Bearings Co. v. United States
Court: United States Court of International Trade
Date filed: 2001-06-05
Citations: 166 F. Supp. 2d 580, 25 Ct. Int'l Trade 546
Copy Citations