Opinion
Court No. 93-08-00470.
October 8, 1993.
Covington Burling, Harvey M. Applebaum, David R. Grace, and Mark F. Kightlinger, Washington, DC, for plaintiffs.
Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Marc E. Montalbine; of counsel: Stephen J. Claeys, Attorney-Advisor, Office of the Chief Counsel for Import Adm'n, U.S. Dept. of Commerce, Washington, DC, for defendant.
Frederick L. Ikenson, P.C., Frederick L. Ikenson, Larry Hampel and Joseph A. Perna, V, Washington, DC, for defendant-intervenor Federal-Mogul Corp.
Stewart and Stewart, Terence P. Stewart, Wesley K. Caine, Geert De Prest, Myron A. Brilliant and Margaret E.O. Edozien. Washington, DC, for defendant-intervenor The Torrington Company.
OPINION
Plaintiffs move pursuant to Rule 56.2 of the Rules of this Court for partial judgment on the agency record as to Count I of its complaint contesting the Department of Commerce, International Trade Administration's ("Commerce") treatment of direct selling expenses. Specifically, plaintiffs claim that such expenses should be added to foreign market value rather than deducted from United States price in Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Duty Order ("Final Results"), 58 Fed.Reg. 38,729 (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).
Background
On July 6, 1992, Commerce initiated an administrative review of antidumping duty orders covering antifriction bearings (other than tapered roller bearings) for the period May 1, 1991 through April 30, 1992. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof; Initiation of Antidumping Administrative Reviews and Request for Revocation of Order (in Part), 57 Fed.Reg. 29,700 (1992). RHP participated in this review. Id.
On April 27, 1993, Commerce published its preliminary determination in the administrative review. 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 its Final Results in this proceeding in which Commerce decided to deduct direct selling expenses from United States price rather than adding such expenses to foreign market value. Final Results, 58 Fed.Reg. at 39,778. RHP claims that this was not in accordance with law. On August 19, 1993, the Court issued a scheduling order expediting the filing of briefs on Count I of plaintiffs' complaint so that this issue would be decided and the parties would have the opportunity to appeal prior to it becoming moot by a superseding administrative review.
Discussion
Plaintiffs claim that the direct selling expenses at issue should be added to foreign market value rather than deducted from United States price.
According to 19 U.S.C. § 1677a(e) (1988), "the exporter's sale price shall be adjusted by being reduced by the amount, if any, of . . . expenses generally incurred by or for the account of the exporter in the United States in selling identical or substantially identical merchandise."
The Court of Appeals, however, has interpreted section 1677a(e) to refer to indirect rather than direct selling expenses. Consumer Prods. Div., SCM Corp. v. Silver Reed America, 753 F.2d 1033, 1036-38 (Fed. Cir. 1985).
This issue has unnecessarily consumed the Court's time in recent decisions and the Court has consistently held that "direct selling expenses are properly characterized as differences in circumstances of sale giving rise to an adjustment of FMV." NSK Ltd. v. United States, 17 CIT ___, ___, 819 F. Supp. 1096, 1099 (1993); NTN Bearing Corp. of America v. United States, 17 CIT ___, ___, 1993 WL 118051, Slip Op. 93-51 at 4 (April 13, 1993); NTN Bearing Corp. of America v. United States, 17 CIT ___, ___, 1993 WL 129799, Slip Op. 93-56 at 4 (April 21, 1993); NSK Ltd. v. United States, 17 CIT ___, ___, 1993 WL 193225, Slip Op. 93-92 at 3 (June 3, 1993); NTN Bearing Corp. of America v. United States, 14 CIT 623, 637, 747 F. Supp. 726, 738-39 (1990); Timken Co. v. United States, 11 CIT 786, 800, 673 F. Supp. 495, 509 (1987).
Although the law is clear on this issue, "Commerce repeatedly ignores the law and disobeys the decisions of this Court." NSK Ltd., 17 CIT at ___, 1993 WL 193225, Slip Op. 93-50 at 6-7. Furthermore, the Court recently cautioned Commerce that "they are to adhere to the law and to the decisions of the Court on this issue. If not, this Court will be compelled to order sanctions against the government and hold Commerce in contempt of court for repeatedly ignoring the well-established law." Id. at ___, 1993 WL 193225, Slip Op. 93-50 at 7.
Absent any contrary authority, this Court adheres to the abundance of case law on this issue and, therefore, this case is remanded to Commerce to add direct selling expenses to foreign market value rather than deducting such from United States price.
Conclusion
In accordance with the foregoing opinion, plaintiffs' motion for partial judgment on the agency record is hereby granted and this case is remanded to Commerce to add direct selling expenses to foreign market value rather than deducting such expenses from United States price. Furthermore, pursuant to Rule 54(b) of the Rules of this Court, the Court orders that final judgment be entered on this issue so that parties may file an immediate appeal.
PARTIAL JUDGMENT
This case having been duly submitted for decision following plaintiffs' motion for partial judgment on the agency record, and the Court, after due deliberation, having rendered a decision herein; now then, in accordance with said decision,
IT IS HEREBY ORDERED that plaintiffs' motion is granted and this case is remanded to Commerce to add direct selling expenses to foreign market value rather than deducting such expenses from United States price; and it is further
ORDERED that pursuant to Rule 54(b) of the Rules of this Court, final judgment be entered on this issue so that the parties may file an immediate appeal.