779 F.Supp. 1375 (CIT. 1991), 87-10-01046, United Engineering & Forging v. United States

Docket Nº:Court No. 87-10-01046.
Citation:779 F.Supp. 1375
Party Name:UNITED ENGINEERING & FORGING, Plaintiff, v. The UNITED STATES of America, Defendant.
Court:Court of International Trade
 
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Page 1375

779 F.Supp. 1375 (CIT. 1991)

UNITED ENGINEERING & FORGING, Plaintiff,

v.

The UNITED STATES of America, Defendant.

Court No. 87-10-01046.

United States Court of International Trade.

Nov. 18, 1991

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[Copyrighted Material Omitted]

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Fried, Frank, Harris, Shriver & Jacobson, David E. Birenbaum and Alan Kashdan, Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Sheila N. Ziff and Jane E. Meehan, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Stephanie J. Mitchell, of counsel, and Office of the Gen. Counsel, U.S. Intern. Trade Com'n, Lyn M. Schlitt, James A. Toupin and George W. Thompson, Washington, D.C., for defendant.

Collier, Shannon & Scott, David A. Hartquist, Michael R. Kershow, Kathleen Weaver Cannon, Nicholas D. Giordano and Robin H. Gilbert, Washington, D.C., for intervenor-defendant Wyman-Gordon Co.

OPINION AND ORDER

AQUILINO, Judge:

In this action, the plaintiff challenges the Final Determination of Sales at Less Than Fair Value, Certain Forged Steel Crankshafts From the United Kingdom, 52 Fed.Reg. 32,951 (Sept. 1, 1987), reached by the International Trade Administration, U.S. Department of Commerce ("ITA"); the material-injury determination of the U.S. International Trade Commission ("ITC") sub nom. Certain Forged Steel Crankshafts From the Federal Republic of Germany and the United Kingdom, 52 Fed.Reg. 35,004 (Sept. 16, 1987); and the antidumping-duty order entered thereon 1.

The plaintiff United Engineering & Forging ("UEF") has interposed a motion for judgment upon the agency records. On its part, the intervenor-defendant served a motion for judgment on the ITA record and more recently a motion to dismiss the entire action, including its consolidated, contingent claim for relief, on the ground that subsequent administrative proceedings carried out by the ITA pursuant to 19 U.S.C. § 1675 have made matters herein moot.

Since the bringing of those motions, the intervenor-defendant has filed a voluntary stipulation of dismissal of its action No. 87-10-01051 upon a representation that

Wyman-Gordon Company, the original petitioner in the antidumping proceeding that gave rise to the above-referenced consolidated action, completed the sale of its Danville, Illinois crankshaft manufacturing facility to Krupp Gerlach Crankshaft Co., a subsidiary of Krupp Stahl AG of Germany. By virtue of this sale, Wyman-Gordon is no longer a domestic producer of forged steel crankshafts and therefore has no further interest in the antidumping proceeding or the above-referenced consolidated action.

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Receipt of the stipulation caused the court to confer with counsel as to its implications, if any, for the action at bar, referring, among other things, to Oregon Steel Mills Inc. v. United States, 862 F.2d 1541 (Fed.Cir. 1988).

No guidance has been forthcoming, whereupon the court concludes that, while dismissal of an action pursuant to CIT Rule 41(a)(1)(B) which has been consolidated with other action(s) is properly effectuated by way of prior motion to sever therefrom, at a minimum, the intervenor-defendant no longer desires resolution of its motion for judgment on the agency record. On the other hand, the motion to dismiss on the ground stated has not been automatically dispelled.

I

Indeed, the issue of whether or not this action has become moot must still be discussed and first. E.g., North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971); Nuove Industrie Elettriche di Legnano v. United States, 14 CIT 334, ----, 739 F.Supp. 1567, 1568 (1990). The intervenor-defendant summarized its motion as follows:

UEF's appeal of Commerce's antidumping determination was rendered moot by publication of the results of the first administrative review. The case is moot because UEF's arguments go to the rates established by the order, rather than the validity of the order itself or the applicability of the order to UEF. Moreover, UEF has not established that acceptance of its claims would result in revocation of the order; indeed, UEF concedes that its case might result in "substantially lower margins rather than the invalidity of the order itself." Finally, there is no authority that would require this Court to remand the case to the ITC in the event that a remand to Commerce resulted in lower margins. Thus, since there is no live case or controversy remaining as to the margins determined in the underlying investigation, UEF's action challenging such margins should be dismissed as moot. 2

In fact, not only have the results of the ITA's first administrative review been published 3, as indicated in the instant motion, the results of a second such review are also now at hand sub nom. Final Results of Antidumping Duty Administrative Review: Certain Forged Steel Crankshafts From the United Kingdom, 56 Fed.Reg. 5,975 (Feb. 14, 1991), as amended, 56 Fed.Reg. 10,860 (March 14, 1991). Nonetheless, the defendant does not support dismissal, stating that,

due to the nature of United Engineering & Forging's claims, Commerce is unable to support Wyman-Gordon's claim that all issues concerning Commerce's determination were rendered moot by the issuance of the final results of the first administrative review without completely reanalyzing and recalculating the dumping margin based upon the alternative claims made by United Engineering & Forging and Wyman-Gordon Company.

The plaintiff claims that this action challenges the validity of the antidumping-duty order itself and also that, "since the margin of dumping is relevant to the injury determination, the LTFV counts continue to raise live issues, even assuming that this Court were to determine that the margin was reduced but the antidumping duty order should remain in effect." 4

The intervenor-defendant refers to this court's decision in Nuove Industrie Elettriche di Legnano v. United States, supra, to the effect that subsequent administrative reviews usually moot existing lawsuits based on prior such reviews or administrative determinations, citing cases like McKechnie Brothers (N.Z.) Ltd. v. U.S. Dep't of Commerce, 14 CIT 269, 735 F.Supp. 1066 (1990),

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Fabricas El Carmen, S.A. de C.V. v. United States, 12 CIT 129, 680 F.Supp. 1577 (1988), Alhambra Foundry v. United States, 10 CIT 330, 635 F.Supp. 1475 (1986), and Silver Reed America, Inc. v. United States, 9 CIT 221, 1985 WL 25761 (1985), and that the exception to this result is where the validity or applicability of the underlying antidumping or countervailing duty order is challenged, which was the situation, for example, in PPG Industries, Inc. v. United States, 11 CIT 303, 660 F.Supp. 965 (1987). As stated in Nuove Industrie, 14 CIT at ----, 739 F.Supp. at 1570, mootness "occurs when the relief sought, and the issues raised thereby, are tied inextricably to duties on particular entries."

This is not the case here. As indicated above, plaintiff's complaint contests the antidumping-duty order, which UEF claims is predicated upon faulty determinations by both the ITA and the ITC. That the issues raised are still live is evident to the court after careful consideration of the entire records, and this conclusion is further buttressed by comparing UEF's complaint with the one it has recently filed, challenging the results of the ITA's second administrative review, CIT No. 91-03-00219.

II

The goods covered by the contested order are forged carbon or alloy steel crankshafts with a shipping weight between 40 and 750 pounds, whether machined or unmachined, and classified during the period of investigation under items 660.6713, 660.6727, 660.6747, 660.7113, 660.7127 or 660.7147 of the Tariff Schedules of the United States. The ITC staff report describes this merchandise as follows:

Forged crankshafts between 40 and 750 pounds in weight are primarily used in engines with vehicular applications, whereas forged crankshafts outside this weight range are primarily incorporated in engines with other than vehicular applications. The crankshafts subject to investigation are used principally in diesel (and to a lesser extent, large gasoline) engines for on-highway trucks and tractors (e.g., class 6, 7, and 8 trucks). Other end uses are diesel engines for off-road equipment (construction, mining and material handling, and stationary power equipment); farm machinery and equipment; military vehicles (both track and wheel varieties, such as tanks, personnel carriers, systems carriers, and other ground vehicles); certain aircraft engines; smaller diesel marine engines; and diesel engines for automobiles.

Crankshafts are used in internal combustion engines to transform the reciprocal action of the engine's pistons (connected to the crankshaft itself with connecting rods) into rotational energy or torque. In vehicles, the crankshaft is connected to the transmission and driveshaft, which ultimately power the wheels of the vehicle. Each crankshaft is generally produced to customer specifications on a job-order basis, but crankshafts of the same design produced by different manufacturers are generally interchangeable. 5

In its final determination, the ITA concluded that the foreign-market value of such crankshafts from the United Kingdom exceeded the United States price by a weighted-average amount of 14.67 percent.

The motion of the plaintiff U.K. manufacturer contests this determination on a number of counts, including (1) the ITA's choice of a home-market comparison model crankshaft was erroneous; (2) the agency erred in using a quarterly exchange rate to convert home-market sales prices into dollars; (3) the ITA made errors in the...

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