Federal-Mogul Corp. v. US, Court No. 91-07-00530.

• Decision Date: 25 May 1993
• Docket Number: Court No. 91-07-00530.
• Parties: FEDERAL-MOGUL CORPORATION, Plaintiff and Plaintiff-Intervenor, The Torrington Company, Plaintiff and Plaintiff-Intervenor, v. UNITED STATES, Defendant, NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.; Peer Bearing Company; NSK Ltd. and NSK Corporation; Caterpillar Inc.; Minebea Co., Ltd. and NMB Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

822 F. Supp. 782

FEDERAL-MOGUL CORPORATION, Plaintiff and Plaintiff-Intervenor The Torrington Company, Plaintiff and Plaintiff-Intervenor, v. UNITED STATES, Defendant NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.; Peer Bearing Company; NSK Ltd. and NSK Corporation; Caterpillar Inc.; Minebea Co., Ltd. and NMB Corporation, Defendant-Intervenors.

Court No. 91-07-00530.

United States Court of International Trade.

May 25, 1993.

Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley, Joseph A. Perna, V and Larry Hampel, Washington, DC, for plaintiff and plaintiff-intervenor Federal-Mogul Corp.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Wesley K. Caine, Christopher J. Callahan, John M. Breen, Geert De Prest, Margaret E.O. Edozien, Lane S. Hurewitz, Patrick J. McDonough, Robert A. Weaver and Amy S. Dwyer, Washington, DC, for plaintiff and plaintiff-intervenor the Torrington Co.

Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis and Jane E. Meehan; John D. McInerney, Acting Deputy Chief Counsel for Import Admin., Dean A. Pinkert, Stephen J. Claeys and Craig R. Giesze, Atty.-Advisors, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.

Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Neil R. Ellis, Susan E. Silver, T. George Davis and Niall P. Meagher, Washington, D.C. for defendant-intervenors Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.

Barnes, Richardson & Colburn, Robert E. Burke, Donald J. Unger, Kazumune V. Kano and Diane A. MacDonald, Chicago, IL, for defendant-intervenors NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp. and NTN Corp.

Coudert Brothers, Robert A. Lipstein, Matthew P. Jaffe and Nathan V. Holt, Washington, DC, for defendant-intervenors NSK Ltd. and NSK Corp.

Venable, Baetjer, Howard & Civiletti, John M. Gurley, John C. Dibble and Lindsay B. Meyer, Washington, DC, for defendant-intervenor Peer Bearing Co.

Powell, Goldstein, Frazer & Murphy, Richard M. Belanger, Neil R. Ellis and D. Christine Wood, Washington, DC, for defendant-intervenor Caterpillar Inc.

Tanaka Ritger & Middleton, H. William Tanaka, Michele N. Tanaka and Michael J. Brown, Washington, DC, for defendant-intervenors Minebea Co., Ltd. and NMB Corp.

OPINION

TSOUCALAS, Judge:

Plaintiff, Federal-Mogul Corporation ("Federal-Mogul"), commenced this action to challenge certain aspects of the Department of Commerce, International Trade Administration's ("ITA") final results in the first administrative review of imports of antifriction bearings ("AFBs") from Japan. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 56 Fed.Reg. 31,754 (1991). Substantive issues raised by the parties in the underlying administrative proceeding were addressed by the ITA in the issues appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review ("Issues Appendix"), 56 Fed.Reg. 31,692 (1991).

Federal-Mogul has now filed its second motion for partial judgment on the agency record alleging that the ITA's use of the "all others" rate calculated during this administrative review for companies subject to the "all others" cash deposit rate from the lessthan-fair-value ("LTFV") investigation which were not examined during this review was not in accordance with law. Federal-Mogul Corporation's Second Motion for Partial Judgment on the Agency Record.

Background

On June 11, 1990, the ITA initiated an administrative review of imports of ball bearings, cylindrical roller bearings, spherical plain bearings and parts thereof from Japan. 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 Initiation of Antidumping Administrative Reviews, 55 Fed.Reg. 23,575 (1990).

On March 15, 1991, the ITA published its preliminary determination in the administrative review. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts thereof from Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Antidumping Duty Administrative Reviews, 56 Fed.Reg. 11,186 (1991).

On July 11, 1991, the ITA published its Final Results in this proceeding. Final Results, 56 Fed.Reg. 31,754.

Discussion

The Court's jurisdiction over this matter is derived from 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

A final determination by the ITA in an administrative proceeding will be sustained unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).

"All Others" Rate

In this administrative review, for companies which were not investigated in the LTFV investigation and therefore received the LTFV "all others" cash deposit rate and were also not investigated during this administrative review, the ITA used the new "all others" rate calculated in this administrative review as the new cash deposit rate for those companies. Final Results, 56 Fed.Reg. at 31,756-57.

In the Final Results the ITA stated:

The following deposit requirements will be effective for all shipments of Japanese-origin antifriction bearings (other than tapered roller bearings) and parts thereof, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of these administrative reviews, as provided by section 751(a)(1) of the Act:

. . . . .

(4) The cash deposit rate for all other manufacturers which export the subject merchandise shall be the "All Others" rate listed in the section "Final Results of Review" above for each class or kind of merchandise 23.88% for ball bearings, 51.82% for cylindrical roller bearings and 3.08% for spherical plain bearings.

56 Fed.Reg. at 31,756-57.

Federal-Mogul argues that the ITA's use of the "all others" rate calculated during this administrative review as a new cash deposit rate for companies previously subject to the LTFV "all others" rate and not reviewed during this administrative review is not in accordance with 19 U.S.C. § 1675(a)(2) (1988) and 19 C.F.R. § 353.22(e)(1) (1991).¹Memorandum in Support of Federal-Mogul Corporation's Second Motion for Partial Judgment on the Agency Record ("Federal-Mogul's Memorandum") at 3-12.

Specifically, Federal-Mogul argues that the statute and the regulation require that when a company subject to an antidumping duty cash deposit rate is not reviewed during an administrative review, the rate at which that company has made cash deposits automatically becomes that company's assessment rate for the period covered by that administrative review and its entries made during that period of review are liquidated at that rate. See 19 U.S.C. § 1675(a)(2); 19 C.F.R. § 353.22(e).

Federal-Mogul further argues that 19 U.S.C. § 1675(a)(2) requires that a company's assessment rate calculated during an administrative review "shall be the basis ... for deposits of estimated duties" and that 19 C.F.R. § 353.22(e)(2) requires that the ITA instruct the Customs Service to collect cash deposits based on the assessment rate calculated during the administrative review for each unreviewed company. Federal-Mogul's Brief at 5-6; Federal-Mogul Corporation's Reply to the Government's Opposition to Federal-Mogul Corporation's Second Motion for Partial Judgment on the Agency Record ("Federal-Mogul's Reply") at 5-7. Therefore, Federal-Mogul argues that the LTFV "all others" cash deposit rate becomes the assessment rate calculated during an administrative review for the unreviewed companies subject to that rate, and that rate in turn remains the cash deposit rate for those companies for that administrative review. Federal-Mogul's Brief at 5-6; Federal-Mogul's Reply at 5-7.

Federal-Mogul points out that the ITA's own explanation of 19 C.F.R. § 353.22(e)(2) states:

Because the cash deposit (or bond) rate is the basis for each interested party's decision whether to exercise its right to request a review, it would make no sense to change the rate after the time for request has expired.... In any event, the failure of an interested party to file a timely request for review constitutes a determination under section 751 of the dumping margin for the entries made during the review period.

Antidumping Duties; Final Rule, 54 Fed. Reg. 12,742, 12,756 (1989) (emphasis added); Federal-Mogul's Memorandum at 6; Federal Mogul's Reply at 5-6.

In addition, Federal-Mogul argues that the ITA's use of the new "all others" rate runs counter to the reasons articulated by Congress when it amended the antidumping duty statute in 1984 to make administrative reviews conditional upon a request by an interested party. See H.R.Conf.Rep. No. 1156, 98th Cong., 2d Sess. 181 (1984), U.S.Code Cong. & Admin.News, pp. 4910, 5298. Federal-Mogul argues that changing a company's cash deposit rate without reviewing that company's actual entries will force domestic interested parties to request reviews of all parties subject to an antidumping duty order to prevent them from receiving a potentially incorrect and lower cash deposit rate. Federal-Mogul argues that this will vastly increase the number and...