Consolidated Bearings Co. v. U.S., SLIP OP. 02-03.

CourtU.S. Court of International Trade
Citation182 F.Supp.2d 1380
Docket NumberSLIP OP. 02-03.,No. 98-09-02799.,98-09-02799.
PartiesCONSOLIDATED BEARINGS COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.
Decision Date08 January 2002
ORDER

TSOUCALAS, Senior Judge.

The case at bar comes before this Court as a result of the Court's decision in Consolidated Bearings Co. v. United States ("Consolidated Bearings"), 25 CIT ___, 166 F.Supp.2d 580 (2001), and concerns the events that followed the issuance of Final Results of Antidumping Duty Administrative Review of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, 56 Fed.Reg. 31,692 (July 11, 1991), as amended by Amended Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Germany, 62 Fed.Reg. 32,755 (June 17, 1997), by the United States Department of Commerce, International Trade Administration ("Commerce").

Specifically, on September 9, 1997, Commerce instructed the United States Customs Service ("Customs") to liquidate, at a certain "manufacturer's" rate, entries of the merchandise produced by FAG Kugelfischer Georg Schaefer KGaA ("FAG Kugelfischer") and imported by certain importers, the list of which did not include Consolidated Bearings Company ("Consolidated Bearings"), an entity that imported the merchandise manufactured by FAG Kugelfischer as well as other merchandise. Almost a year later, on August 4, 1998, Commerce sent liquidation instructions ("Liquidation Instructions") to Customs requiring Customs to liquidate the merchandise that was: (1) produced in Germany; (2) imported by any importer; and (3) still remained unliquidated after the application of prior liquidation instructions including that of September 9, 1997, at the deposit rate required at the time of entry of the merchandise. Under the Liquidation Instructions, Customs had to assess Consolidated Bearings' entries at the rate much higher than the "manufacturer's" rate determined by Commerce for FAG Kugelfischer.

Consequently, Consolidated Bearings moved pursuant to USCIT R. 56 .1 for judgment upon the agency record challenging the Liquidation Instructions issued by Commerce and alleging that the Liquidation Instructions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The Court granted Consolidated Bearings' motion and remanded this case to Commerce to: (a) annul the Liquidation Instructions issued by Commerce on August 4, 1998; and (b) take further actions not inconsistent with this opinion. See Consolidated Bearings, 25 CIT at ___, 166 F.Supp.2d at 593. The Court particularly explained that the remand was caused by: (1) the insufficiency of Commerce's explanation about Commerce's reasons for the issuance of the Liquidation Instructions, see id. 25 CIT at ___, 166 F.Supp.2d at 590-92; and (2) the deficiencies of the Liquidation Instructions evincing Commerce's acknowledgment that Consolidated Bearings' imports of FAG Kugelfischer's merchandise could have been liquidated previously and legitimately under the rates given in the instructions of September 9, 1997.

On November 6, 2001, Commerce filed Final Results of Redetermination Pursuant to Ct. Remand ("Remand Results") for Consolidated Bearings, 25 CIT ___, 166 F.Supp.2d 580. In the Remand Results, Commerce explains that Commerce: (1) possesses no information on whether Consolidated Bearings' purchases of FAG Kugelfischer's merchandise were direct, see Remand Results at 3; (2) "surmise[s] ... that Consolidated [Bearings] purchased the [merchandise] from an intermediate party," id. at 4; (3) "find[s] it inappropriate to instruct" Customs to liquidate Consolidated Bearings' merchandise at FAG Kugelfischer's rates, id. at 5; and (4) devises two alternative approaches (one of which provides for "three alternative rates" for different types of Consolidated Bearings' merchandise) to be used instead of the approach given in the September 9, 1997, liquidation instructions because "the Court did not specify any alternative rates [Commerce] should consider." Id. at 3, 6-8.

While the Court appreciates the care and consideration and recognizes the creativity Commerce put into creation of alternative approaches and alternative rates, it is obvious that Commerce misreads the purpose and the scope of the remand.

The gist of Consolidated Bearings, 25 CIT ___, 166 F.Supp.2d 580, is that, within parameters of each administrative determination, Commerce is bound to each election Commerce makes. Cf. SKF USA Inc. v. United States, 263 F.3d 1369, 1382 (Fed.Cir.2001). If Commerce issues liquidation instructions that Commerce contemplates to be applicable to a particular merchandise, Commerce cannot change its mind and enter "corrections" a year later or, as Consolidated Bearings correctly points out, three years later. Accord Pl.'s Comments Concerning Final Results of Redetermination Pursuant Ct. Remand at 3. If Commerce does not review a particular respondent but knowingly allows the imports of such respondent to be liquidated at a particular rate, Commerce is equally bound to such election. In this case, Commerce is bound by the September 9, 1997, liquidation instructions. If Commerce is unsatisfied with a potential application of those instructions, Commerce should have issued said instructions in a clearer manner. Indeed, it would be anomalous to suggest that Commerce could "fine tune" its...

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2 cases
  • Consolidated Bearings Co. v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 29 octobre 2003
    ...Trade invalidated the 1998 instructions as an unlawful correction or modification of the 1997 instructions. See Consolidated II, 182 F.Supp.2d at 1382-83. Commerce expressed its opinion that the trial court was in error. Nevertheless, to comply with the remand order, Commerce annulled the 1......
  • Consolidated Bearings Co. v. U.S.
    • United States
    • U.S. Court of International Trade
    • 20 août 2004
    ...Results of Redetermination Pursuant to Court Remand for Consolidated I, which were vacated by Consolidated Bearings Co. v. United States ("Consolidated II"), 26 CIT ___, 182 F.Supp.2d 1380 (2002). This Court ordered, in Consolidated II, 26 CIT at ___, 182 F.Supp.2d at 1384, that Commerce "l......

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