FAG Kugelfischer Georg Schafer KGaA v. US, Slip Op. 96-108. Court No. 93-08-00493.
| Decision Date | 10 July 1996 |
| Docket Number | Slip Op. 96-108. Court No. 93-08-00493. |
| Citation | 20 CIT 824,932 F. Supp. 315 |
| Parties | FAG KUGELFISCHER GEORG SCHAFER KGaA, FAG Italia S.p.A., FAG (U.K.) Limited, Barden Corporation (U.K.) Limited, FAG Bearings Corporation and The Barden Corporation, Plaintiffs, v. UNITED STATES, Defendant, Federal-Mogul Corporation; The Torrington Company, Defendants-Intervenors. |
| Court | U.S. Court of International Trade |
Grunfeld, Desiderio, Lebowitz & Silverman (Max F. Schutzman, Andrew B. Schroth and Mark E. Pardo), New York City, for plaintiffs.
Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Jeffrey M. Telep); of counsel: Thomas H. Fine, Michelle Behaylo, David Ross and Stacy J. Ettinger, for defendant.
Frederick L. Ikenson, P.C. (Frederick L. Ikenson, Larry Hampel and Joseph A. Perna, V), Washington, DC, for defendant-intervenor Federal-Corporation.
Stewart and Stewart (Terence P. Stewart, Wesley K. Caine, Geert De Prest and Myron A. Brilliant), Washington, DC, for defendant-intervenor The Torrington Company.
Plaintiffs, FAG Kugelfischer Georg Schafer KGaA, FAG Italia S.p.A., FAG (U.K.) Limited, Barden Corporation (U.K.) Limited, FAG Bearings Corporation and The Barden Corporation (collectively "FAG"), commenced this action challenging certain aspects of the Department of Commerce, International Trade Administration's ("Commerce" or "ITA") final results of administrative review entitled Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Duty Order ("Final Results"), 58 Fed.Reg. 39,729 (1993), as amended, Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; Amendment to Final Results of Antidumping Duty Administrative Reviews, 58 Fed.Reg. 42,288 (1993), Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France and the United Kingdom; Amendment to Final Results of Antidumping Duty Administrative Reviews, 58 Fed.Reg. 51,055 (1993), and Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Amendment to Final Results of Antidumping Duty Administrative Reviews, 59 Fed.Reg. 9,469 (1994).
On May 15, 1989, Commerce issued antidumping orders covering antifriction bearings ("AFBs") (other than tapered roller bearings) from Germany. 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 (1989).
On April 27, 1993, Commerce published the preliminary results of its administrative review of antidumping duty orders on AFBs (other than tapered roller bearings) and parts thereof from Japan, France, Germany, Italy, Romania, Singapore, Sweden, Thailand and the United Kingdom. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Preliminary Results of Antidumping Duty, Administrative Reviews and Partial Termination of Administrative Reviews, 58 Fed.Reg. 25,616 (1993).
On July 26, 1993, Commerce published the Final Results at issue. See Final Results, 58 Fed.Reg. at 39,729. FAG now moves pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record alleging the following actions by Commerce were unsupported by substantial evidence on the agency record and not in accordance with law: (1) basing assessment rate on calculated entered values rather than on actual entered values; (2) including sales of certain needle roller bearings in the final margin calculation for cylindrical roller bearing sales; (3) adding an eight percent profit amount as best information available ("BIA") to the actual cost of related party inputs; (4) calculating a merged dumping margin for FAG (U.K.) Limited and Barden Corporation (U.K.) Limited; (5) deducting U.S. direct selling expenses from exporter's sales price ("ESP") rather than adding them to foreign market value ("FMV"); and (6) committing a clerical error.
The Court's jurisdiction in this action is derived from 19 U.S.C. § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).
The Court must uphold Commerce's final determination 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) (1994). Substantial evidence is Universal Camera Corp. v. NLRB 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).
In the Final Results, Commerce explained its methodology for calculating assessment rates as follows:
For ESP sales (sampled and non-sampled), we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct Customs to assess the resulting percentage margin against the entered Customs values on each of that importer's entries under the relevant order during the review period. While the Department is aware that the entered value of sales during the period of review (POR) is not necessarily equal to the entered value of entries during the POR, use of entered value of sales as the basis of the assessment rate permits the Department to collect a reasonable approximation of the antidumping duties that would have been determined if the Department had reviewed those sales of merchandise actually entered during the POR.
Final Results, 58 Fed.Reg. at 39,732.
FAG objects to Commerce's methodology for calculating assessment rates arguing that Commerce should have divided the total dumping margins by the actual entered value of bearings imported during the period of review. According to FAG, Commerce's use of total entered value is inconsistent with the requirements of 19 U.S.C. § 1673e(a)(1) (1988) and may result in either the under-collection or overcollection of antidumping duties. Pls.' Mem.Supp.Mot.J.Agency R. at 11-19.
FAG raised this identical issue in a previous case before this Court regarding the second administrative review. This Court upheld Commerce's methodology as being consistent with law. FAG Kugelfischer Georg Schafer KGaA v. United States, 19 CIT ___, Slip Op. 95-158, 1995 WL 549119 (Sept. 14, 1995), aff'd, 86 F.3d 1179, 1996 WL 267277 (Fed.Cir.1996). The Court adheres to its prior decision and, therefore, finds Commerce's methodology to be supported by substantial evidence on the agency record and in accordance with law.
On December 23, 1991, Commerce made a determination in response to a scope ruling request submitted by FAG concerning certain needle bearings, holding that for purposes of the AFBs antidumping order, needle roller bearings with a length-to-diameter ratio of 4 to 1 or less were considered cylindrical roller bearings. See Final Determination on the Request by FAG for Exclusion of Certain Engine Crank Shaft and Engine Main Shaft Pilot Bearings from the Scope of Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany ("Final Scope Determination"), Gen. Issues P.R. Document No. 35, Exhibit 2. On September 2, 1992, Commerce sent a letter to FAG and other interested parties clarifying the scope ruling stating that the ratio of 4 to 1 is a dispositive ratio and the standard to be applied in all circumstances for distinguishing between needle roller bearings and cylindrical roller bearings. Gen.Issues P.R. Document No. 11, Fiche 3, Frame 10. As a result of the above decision, Commerce included within the scope of the determination at issue cylindrical roller bearings with a length-to-diameter ratio of 4 to 1 or less. Final Results, 58 Fed.Reg. at 39,785.
FAG disputes Commerce's decision to include these bearings within the scope of the order arguing that Commerce inappropriately applied a scope ruling retroactively. FAG insists that Commerce's retroactive application of the scope ruling violates principles of due process and equity because FAG could not have known at the time of the third period of review that the bearings at issue would be subject to the collection of antidumping duties. As such, FAG claims that Commerce deprived respondents of the opportunity to remedy market behavior in order to ease the impact of dumping duties. Pls.' Mem.Supp.Mot.J.Agency R. at 22-25.
FAG further claims that Commerce's decision to include the bearings within the scope of the review contravenes the statutory requirements for conducting an administrative review. Id. at 26 (referring to 19 U.S.C. § 1675(a)(2) (1988)). FAG argues that Commerce violated the statute by incorporating into the review proceedings entries which were already liquidated as non-scope merchandise. Pls.' Mem.Supp.Mot.J.Agency R. at 25-27.
In the alternative, FAG urges the Court to limit the application of the scope determination to sales involving the merchandise made after December 23, 1991. Id. at 28. FAG maintains that the Court should at least order Commerce to exclude the sales at issue from the calculation of FAG's ESP assessment rate because at the time of entry the bearings at issue were categorized by the United States Customs Service ("Customs") as non-scope merchandise. FAG concludes that "principles of...
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