Consolidated Bearings Co. v. U.S.
| Decision Date | 05 June 2001 |
| Docket Number | No. 98-09-02799.,SLIP OP. 01-66.,98-09-02799. |
| Citation | 166 F.Supp.2d 580 |
| Parties | CONSOLIDATED BEARINGS COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Winthrop, Stimson, Putnam & Roberts, Washington, DC (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.
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), 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.
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. 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., 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 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.
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 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 WL 483231, 1998 Ct. Intl. Trade LEXIS 111 (CIT Aug. 11, 1998). Accordingly, the issue of antidumping law presented in this case is appropriate for review under subsection 1581(i).
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.
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) (). Therefore, Commerce's 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and it is incumbent upon the Court to independently assess the boundaries set by the language of section 2636(i).
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...
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