Paul Muller Industrie Gmbh & Co. v. U.S.

• Decision Date: 26 May 2006
• Docket Number: Slip Op. 06-80.,Court No. 04-00522.
• Citation: 435 F.Supp.2d 1241
• Parties: PAUL MÜLLER INDUSTRIE GMBH & CO., et al., Plaintiffs, v. UNITED STATES, Defendant, and Timken U.S. Corporation, Defendant-Intervenor.
• Court: U.S. Court of International Trade

435 F.Supp.2d 1241

PAUL MÜLLER INDUSTRIE GMBH & CO., et al., Plaintiffs, v. UNITED STATES, Defendant, and Timken U.S. Corporation, Defendant-Intervenor.

Slip Op. 06-80.

Court No. 04-00522.

United States Court of International Trade.

May 26, 2006.

Grunfeld, Desiderio, Lebowitz, Silverman, & Klestadt LLP, New York City (Bruce M. Mitchell, Adam M. Dambrov, Mark E. Prado, and William F. Marshall) for Plaintiff Paul Muller Industrie GmbH & Co.

Grunfeld, Desiderio, Lebowitz, Silverman, & Klestadt LLP, New York City(Max F. Schutzman, Adam M. Dambrov, and William F. Marshall) for Plaintiffs FAG Kugelfischer AG, FAG Italia S.p.A., Barden Corporation (U.K.) Limited, FAG Bearings Corporation and The Barden Corporation.

Steptoe & Johnson LLP, Washington, DC (Herbert C. Shelley, Alice A. Kipel, and Susan R. Gihring) for Plaintiffs SKF USA Inc., SKF France S.A., Sarma, SKF GmbH, and SKF Industrie S.p.A.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Patricia M. McCarthy, Assistant Director; Claudia Burke, Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; and Elizabeth Doyle, Attorney-Advisor, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant United States.

Stewart and Stewart, (Terence P. Stewart, William A. Fennell, Lane S. Hurewitz, and Geert De Prest) for Defendant-Intervenor Timken U.S. Corporation.

OPINION

WALLACH, Judge.

I Introduction

Plaintiffs Paul Mueller Industrie, GmbH & Co. ("Paul Mueller"); FAG Kugelfischer AG, FAG Italia S.p.A., Barden Corporation (U.K.) Limited, FAG Bearings Corporation, and the Barden Corporation ("collectively FAG"); SKF USA Inc., SKF France S.A., Sarma, SKF GmbH, and SKF Industrie S.P.A. (collectively "SKF") and Timken U.S. Corporation ("Timken") challenge the United States Department of Commerce's ("Commerce" or "the Department") findings in Antifriction Bearings and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Rescission of Administrative Reviews in Part, and Determination To Revoke Order in Part, 69 Fed.Reg. 55,574 (September 15, 2004) ("Final Results") with regard to zeroing in the calculation of Plaintiffs' antidumping duty margins. The Final Results were amended in Ball Bearings and Parts Thereof From Germany; Amended Final Results of Antidumping Duty Administrative Review, 69 Fed.Reg. 63,507 (November 2, 2004). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2004).

II Background

On September 15, 2004, Commerce published in the Federal Register the Final Results of its review of the antidumping duty orders on antifriction bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom covering the period of review ("POR") of May 1, 2002, through April 30, 2003. Final Results at 55,574. The scope of this order covers antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof.¹ Id. at 55,575. In the Final Results, Commerce found a 5.25% weighted-average dumping margin for SKF France and Sarma, 2.49% for SKF GmbH, 1.38% for SKF Industrie S.p.A., 0.36% for Paul Mueller, 5.59% for FAG, and 4.79% for FAG Italia, S.p.A. See id. at 55,580.

On April 5, 2005, the court consolidated all the cases challenging the Final Results of the thirteenth administrative review.² Oral argument was held on April 26, 2006.

III Standard of Review

This court will sustain Commerce's determinations, findings, or conclusions 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) (2004); Magnesium Corp. of Am. v. United States, 166 F.3d 1364, 1368 (Fed.Cir.1999); see also Micron Technology, Inc., v. United States, 117 F.3d 1386, 1393 (Fed.Cir.1997). Substantial evidence is deemed to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Although the courts have considered substantial evidence to be something less than the weight of the evidence, the possibility of drawing two inconsistent conclusions from the presented evidence does not necessarily prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citing Labor Board v. Nevada Consol. Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 86 L.Ed. 1305 (1942); Keele Hair & Scalp Specialists, Inc., et al. v. FTC, 275 F.2d 18, 21 (5th Cir.1960)).

The court utilizes a two-step analysis to as, instructed by the Supreme Court, to determine the level of deference applicable to Commerce's statutory interpretation. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc. et al., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001). The court examines, first, whether "Congress has directly spoken to the precise question at issue," in which case, courts "must give effect to the unambiguously expressed intent of Congress." See Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 239, 124 S.Ct. 1741, 158 L.Ed.2d 450 (2004) (quoting Chevron, 467 U.S. at 842-3, 104 S.Ct. 2778). Whenever Congress has "explicitly left a gap for the agency to fill," the agency's regulation is "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. `To sustain the [agency's] application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.'" Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) (quoting Unemployment Compensation v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946)).

IV ANALYSIS

A Commerce's Practice of Zeroing Is Supported by Substantial Evidence and Is In Accordance With Law

Each Plaintiff argues that Commerce's practice of assigning a zero margin to export price ("EP") or constructed export price ("CEP") sales made above normal value ("NV") is a violation of U.S. antidumping law and WTO dispute settlement decisions. Brief in Support of Paul Muller's Rule 56.2 Motion for Judgment Upon the Agency Record ("Paul Muller Motion") at 2; Brief in Support of FAG's Rule 56.2 Motion for Judgment Upon the Agency Record ("FAG Motion") at 2; Brief in Support of Consolidated Plaintiffs SKF's Rule 56.2 Motion for Judgment Upon the Agency Record ("SKF Motion") at 2; 19 U.S.C. § 1673. SKF further argues that zeroing is "directly contrary to the clear language and intent of the relevant statutory provisions." SKF Motion at 2. Plaintiffs further argue that Commerce's zeroing methodology is directly contrary to two WTO Appellate Body decisions which found zeroing to be a violation of the Antidumping Agreement. Id. at 26-27 (citing United States — Sunset Review of Antidumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R) (Appellate Body December 15, 2003); United States — Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R (Appellate Body August 11, 2004).

The issue of zeroing has been affirmed and settled by the Federal Circuit in Corus Staal, B.V. v. Dept. of Commerce, 395 F.3d 1343, 1348-49 (Fed.Cir. 2005). There is no reason to overturn Commerce's zeroing practice based upon a ruling by the WTO "unless and until such ruling has been adopted pursuant to the specified statutory scheme." Id. No such ruling has been adopted in this case; consequently, there is no reason to re-examine the issue of zeroing at this juncture. Commerce need only make a reasonable interpretation of the statute and the interpretation here at issue has been upheld several times based on that standard. See id. at 1347; Timken Company v. United States, 354 F.3d 1334, 1342 (Fed.Cir.2004). Furthermore, it is a well-established rule of law that a trial court may not disregard precedent established by its reviewing court. Strickland v. United States, 423 F.3d 1335, 1338 n. 3 (Fed.Cir.2005); see also PAM S.p.A. v. United States, 347 F.Supp.2d 1362, 1370 (CIT 2004). Unless the Supreme Court or the Federal Circuit expressly overrule Timken or Corus Staal, this court does not have the power to reexamine the issue of zeroing in administrative reviews. See Bankers Trust N.Y. Corp. v. United States, 225 F.3d 1368, 1372 (Fed.Cir.2000).

Plaintiffs' wish to repeatedly challenge a particular holding does not make it irrelevant or not controlling. As Defendant-Intervenor correctly points out "[n]ew argument alone, however, does not defeat binding precedent. Stare decisis is a `doctrine [that] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification."'" Response of Timken U.S. Corporation to the Rule 56.2 Motions of SKF USA Inc., et al., FAG Bearings Corporation, et al., and Paul Mueller Industrie GmbH & Co., et. al. (citing United States v. International Business Machines Corp., 517 U.S. 843, 856, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996)) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L. Ed.2d 164 (1984)). Timken also aptly points out that "absent changed circumstances or new or modified rules or legislation, a new argument alone cannot...