NTN Bearing Corp. of America v. United States

Opinion

Plaintiffs, NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN”), move pur*273suant to Rule 56.1 of the Rules of this Court for partial judgment on the agency record as to Count III of their complaint claiming that the Department of Commerce, International Trade Administration (“ITA” or “Commerce”), erred in deducting direct selling expenses from U.S. price rather than adding such expenses to foreign market value.

The administrative determination under review is the ITA’s final results in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of Antidumping Duty Administrative Reviews (“Final Results”), 56 Fed. Reg. 31,754 (1991). Substantive issues raised by NTN in the underlying administrative proceeding were addressed by ITA in the Issues Appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Issues Appendix”), 56 Fed. Reg. 31,692 (1991).

Background

On June 11, 1990, the ITA initiated an administrative review of ball bearings, cylindrical roller bearings, spherical plain bearings and parts thereof from Japan. 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 (1990). NTN participated in this review. Id.

On March 15,1991, the ITA 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, 56 Fed. Reg. 11,186 (1991).

On July 11,1991, the ITA published its Final Results in this proceeding. Final Results, 56 Fed. Reg. at 31,754. In its final results, Commerce deducted direct selling expenses from U.S. price in exporter’s sales price transactions. Issues Appendix at 31,722-23. NTN claims that this was not in accordance with law. Commerce claims that this issue should be dismissed as moot since it affects deposit rates established during the first administrative review, which have been superseded by the second administrative review. Defendant’s Memorandum in Opposition to Plaintiffs ’ Partial Motion for Judgment Upon the Agency Record at 2-6.

Discussion

It is well-established that an “actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.” See Roe v. Wade, 410 U.S. 113, 125 (1973); see also SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 407 (1972). The Court adheres to its decision in NSK Ltd. and NSK Corporation v. United States, 17 CIT 251, Slip Op. 93-50 (April 2, 1993), and holds that plaintiffs’ motion for partial judgment on the agency record is not moot since the issue at hand is capable of repetition and has been evading review. Furthermore, Commerce was in error in deducting direct selling ex*274penses from U.S. price. The law is clear on this issue and absent any other authority the Court will continue to hold that Commerce should have added such expenses to foreign market value. Id. at 5-7. Nevertheless, a remand to Commerce for recalculation would serve no purpose since it would affect only deposit rates and the deposit rates have been superseded by the second administrative review. Id. Commerce “is cautioned 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 6-7.