Consolidated Bearings Co. v. U.S., No. 04-1556.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtClevenger
Citation412 F.3d 1266
Docket NumberNo. 04-1556.
Decision Date21 June 2005
PartiesCONSOLIDATED BEARINGS COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
412 F.3d 1266
CONSOLIDATED BEARINGS COMPANY, Plaintiff-Appellant,
v.
UNITED STATES, Defendant-Appellee.
No. 04-1556.
United States Court of Appeals, Federal Circuit.
DECIDED: June 21, 2005.

Christopher R. Wall, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief was William DeVinney.

Cristina Ashworth, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; and David Silverbrand, Trial Attorney. Of counsel on the brief were John D. McInerney, Chief Counsel, Berniece A. Browne, Senior Counsel, and Patrick V. Gallagher, Jr., Senior Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

Before CLEVENGER, RADER, and DYK, Circuit Judges.

CLEVENGER, Circuit Judge.


Plaintiff-appellant Consolidated Bearings Company ("Consolidated") appeals the United States Court of International

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Trade's decision affirming the final results of a redetermination by the Department of Commerce ("Commerce") pursuant to a remand order from the Court of International Trade. See Consol. Bearings Co. v. United States, 346 F.Supp.2d 1343 (Ct. Int'l Trade 2004). In the final results, Commerce determined that it did not depart from a consistent past practice by instructing the United States Customs Service ("Customs") to liquidate Consolidated's unreviewed entries of antifriction bearings ("AFBs") from an unrelated reseller at the original cash deposit rate rather than the manufacturer's rate established pursuant to an administrative review. Final Results of Redetermination Pursuant to Court Remand, slip op. 04-10, at 6 (Apr. 28, 2004) ("Remand Redetermination"). Because substantial evidence supports Commerce's determination that it has in the past consistently liquidated unreviewed entries from an unrelated reseller at the cash deposit rate when the manufacturer has no knowledge that the subject merchandise is ultimately destined for the United States, we affirm the Court of International Trade's judgment.

I

In 1989, after determining that certain imported AFBs were being sold below fair value in the United States to the detriment of domestic industry, Commerce issued antidumping duty orders concerning AFBs exported from several countries, including 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 (May 15, 1989). Between 1989 and 1997, Consolidated purchased and imported from an unaffiliated foreign reseller AFBs manufactured by FAG Kugelfischer Georg Schaefer KgaA ("FAG"). Consolidated consequently paid cash deposits of estimated antidumping duties based on the rates Commerce assigned to FAG in the antidumping duty orders concerning AFBs.

After receiving requests from domestic importers for an administrative review of the antidumping duty order applicable to AFB imports from FAG and others, Commerce initiated an administrative review on June 11, 1990. See 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 (June 11, 1990). Because Consolidated did not request an administrative review for the reseller's sales to Consolidated, and neither Consolidated nor the reseller participated in the review, Commerce did not consider Consolidated's entries of AFBs in the review.

On July 11, 1991, Commerce published the final results of the administrative review and stated that "[w]ith respect to companies not participating in this review, presumably all interested parties were satisfied with the previously published cash deposit rates for assessment purposes." Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review, 56 Fed. Reg. 31,692, 31,700 (July 11, 1991). Commerce ultimately amended the results to include weighted-average antidumping duty rates for various exporters, including one for FAG. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Germany; et al.; Amended Final Results of Antidumping Duty Administrative Reviews, 62 Fed. Reg. 32,755, 32,756 (June 17, 1997). Under these final results, each

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participating importer of FAG-manufactured AFBs received a new duty rate.

On September 9, 1997, Commerce instructed Customs to liquidate AFBs pursuant to the final results of the administrative review. See Liquidation Instructions for Antifriction Bearings (Other than Tapered Roller Bearings) & Parts Thereof From Germany, Message No. 7252113 (Sept. 9, 1997) ("September 1997 instructions"). Because Consolidated did not participate in the review, the final results did not include a new antidumping duty rate for Consolidated or its reseller. On August 4, 1998, Commerce again instructed Customs that if it was "still suspending liquidation on any entries of AFBs from Germany ... after applying all of the above liquidation instructions, [it] should now liquidate such entries at the deposit rate required at the time of entry of the merchandise"—a rate higher than that set forth in the September 1997 liquidation instructions for named importers of AFBs manufactured by FAG. Liquidation Instructions for AFBs and Parts Thereof from Germany from the Period 11/9/88 Through 4/30/90, Message No. 8216117 (Aug. 4, 1998) ("August 1998 instructions"). Commerce thereafter liquidated Consolidated's imports of AFBs at the cash deposit rate.

Consolidated filed suit pursuant to 28 U.S.C. § 1581(i) in the Court of International Trade, seeking to invalidate the August 1998 instructions. See Consol. Bearings Co. v. United States, 166 F.Supp.2d 580 (Ct. Int'l Trade 2001). The case was ultimately appealed to this court, and we held that 19 U.S.C. § 1675(a)(2)(C)—which explains that a determination of antidumping duties in an administrative review shall "be the basis for the assessment of ... antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties"—does not afford an importer a statutory right to have the results of an administrative review applied to its entries if Commerce did not consider the entries in the review. Consol. Bearings Co. v. United States, 348 F.3d 997, 1005-06 (Fed.Cir.2003). We nonetheless remanded the case for a determination of whether "Commerce had a consistent past-practice with respect to imports from unrelated resellers not covered by the administrative review, whether there was any departure in this case from a consistent past practice, and whether that departure was arbitrary." Id. at 1008. The Court of International Trade in turn remanded the case to Commerce. See Consol. Bearings Co. v. United States, No. 98-09-02799, 2004 WL 203013 (Ct. Int'l Trade Jan. 30, 2004).

Upon remand, Commerce identified its past practice with respect to unaffiliated resellers as follows:

The Department's past practice has been to assess the reseller's sales separately from those of the manufacturer, provided that the manufacturer does not have knowledge that its sales to the reseller are ultimately destined for the United States. If the request for review is made for a reseller and its supplier does not know that the reseller is exporting the merchandise to the United States, then the Department will calculate a rate for the reseller based on the...

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17 practice notes
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    • United States
    • U.S. Court of International Trade
    • June 28, 2010
    ...to take into consideration all evidence that “fairly detracts” from its determination) (discussing Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005); Gerald Metals, Inc. v. United States, 132 F.3d 716, 720 (Fed.Cir.1997)); Inter-Neighborhood Hous. Corp. v. NLRB, 124 ......
  • Parkdale Intern. v. U.S., Slip Op. 06-54. Court No. 05-00316.
    • United States
    • U.S. Court of International Trade
    • April 17, 2006
    ...Consol. Bearings Co. v. United States, 348 F.3d 997, 1007 (Fed.Cir. 2003), opinion after remand 28 CIT 346 F.Supp.2d 1343 (2004), aff'd, 412 F.3d 1266 (Fed.Cir.2005). This Court has upheld Commerce's "discretion to determine when and how to implement the final results beyond their literal, ......
  • Decca Hospitality Furnishings, LLC v. U.S., Slip Op. 06-43.
    • United States
    • U.S. Court of International Trade
    • April 4, 2006
    ...the rate found in the final determination is the rate at which liability is assessed. See Consol. Bearings Co. v. United States, 412 F.3d 1266, 1270-71 (Fed.Cir. 2005); Kemira Page 1252 Oy v. United States, 61 F.3d 866, 868-69 (Fed.Cir. 1995); Cambridge Lee Indus., 916 F.2d at 1579. However......
  • Shandong Huarong Machinery Co. v. U.S., Slip Op. 06-88.
    • United States
    • U.S. Court of International Trade
    • June 9, 2006
    ...to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005) (quoting 5 U.S.C. § 706(2); Humane Soc'y of the United States v. Clinton, 236 F.3d 1320, 1324 (Fed.Cir.2001)) (interna......
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17 cases
  • S.A.R.L. v. U.S. Sec'y Of Labor, Slip Op. 10-73.
    • United States
    • U.S. Court of International Trade
    • June 28, 2010
    ...to take into consideration all evidence that “fairly detracts” from its determination) (discussing Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005); Gerald Metals, Inc. v. United States, 132 F.3d 716, 720 (Fed.Cir.1997)); Inter-Neighborhood Hous. Corp. v. NLRB, 124 ......
  • Parkdale Intern. v. U.S., Slip Op. 06-54. Court No. 05-00316.
    • United States
    • U.S. Court of International Trade
    • April 17, 2006
    ...Consol. Bearings Co. v. United States, 348 F.3d 997, 1007 (Fed.Cir. 2003), opinion after remand 28 CIT 346 F.Supp.2d 1343 (2004), aff'd, 412 F.3d 1266 (Fed.Cir.2005). This Court has upheld Commerce's "discretion to determine when and how to implement the final results beyond their literal, ......
  • Decca Hospitality Furnishings, LLC v. U.S., Slip Op. 06-43.
    • United States
    • U.S. Court of International Trade
    • April 4, 2006
    ...the rate found in the final determination is the rate at which liability is assessed. See Consol. Bearings Co. v. United States, 412 F.3d 1266, 1270-71 (Fed.Cir. 2005); Kemira Page 1252 Oy v. United States, 61 F.3d 866, 868-69 (Fed.Cir. 1995); Cambridge Lee Indus., 916 F.2d at 1579. However......
  • Shandong Huarong Machinery Co. v. U.S., Slip Op. 06-88.
    • United States
    • U.S. Court of International Trade
    • June 9, 2006
    ...to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005) (quoting 5 U.S.C. § 706(2); Humane Soc'y of the United States v. Clinton, 236 F.3d 1320, 1324 (Fed.Cir.2001)) (interna......
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