Consolidated Bearings Co. v. United States , 2004 CIT 10 ( 2004 )

Slip Op. 04-10
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
CONSOLIDATED BEARINGS COMPANY, :
:
Plaintiff, :
: Court No. 98-09-02799
v. :
:
THE UNITED STATES, :
:
Defendant. :
___________________________________:
ORDER
This matter comes before the Court pursuant to the decision of
the Court of Appeals for the Federal Circuit (“CAFC”) in
Consolidated Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir.
2003), reh’g denied, 2003 U.S. App. LEXIS 26770 (Fed. Cir. Dec. 30,
2003), and the CAFC’s mandate of January 6, 2004, reversing,
vacating and remanding the judgment of the Court in Consolidated
Bearings Co. v. United States (“Consolidated IV”), Slip Op. 02-72,
2002 Ct. Intl. Trade LEXIS 63 (July 9, 2002).
In Consolidated Bearings Co. v. United States (“Consolidated
I”), 25 CIT ___, ___, 166 F. Supp. 2d 580, 593 (2001), this Court
remanded the case to the United States Department of Commerce
(“Commerce”) to “annul the Liquidation Instructions issued by
Commerce on August 4, 1998.” On November 6, 2001, Commerce filed
the Final Results of Redetermination Pursuant to Court Remand for
Consolidated I, which were vacated by Consolidated Bearings Co. v.
United States (“Consolidated II”), 26 CIT ___, 182 F. Supp. 2d 1380(2002). This Court ordered, in Consolidated II, 26 CIT at ___, 182
F. Supp. 2d at 1384, that Commerce “liquidate all Consolidated
Bearings’ imports of FAG Kugelfischer’s merchandise imported during
the period of review in accordance with the September 9, 1997,
liquidation instructions.” On April 1, 2002, Commerce filed the
Final Results of Redetermination Pursuant to Court Remand (Remand
Results II) that were subsequently upheld by this Court in
Consolidated IV. The CAFC ultimately found that “[t]he sales
practices of the reseller that exports [the subject merchandise] to
Consolidated were simply not covered by the administrative review,”
and held that “Consolidated’s imports are not within the scope of
the final results or the 1997 instructions.” Consolidated, 348
Court No. 98-09-02799 Page 2
F.3d at 1006. The CAFC further held that the record in this case
is “insufficient to facilitate a determination of whether Commerce
acted within its discretion or arbitrarily” with respect to its
practice of applying the “cash deposit rates or the manufacturer’s
rate in the final results to imports from a reseller not covered by
the administrative review.” Id. at 1007. Pursuant to said
decision by the CAFC, this Court hereby
REMANDS this case to Commerce to examine: (1) whether Commerce
had a consistent past practice with respect to imports from
unrelated resellers not covered by the administrative review; (2)
whether there was any departure in this case from a consistent past
practice; and (3) whether any departure from an established
practice was arbitrary; and it is hereby
ORDERED that the remand results are due within ninety (90)
days of the date that this order is entered. Any responses are due
within thirty (30) days thereafter. Any rebuttal comments are due
within fifteen (15) days after the date the responses or comments
are due.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: January 30, 2004
New York, New York