General Electric Co. v. United States

17 Ct. Int'l Trade 268
CourtUnited States Court of International Trade
DecidedApril 21, 1993
DocketCourt No. 91-08-00588
StatusPublished

This text of 17 Ct. Int'l Trade 268 (General Electric Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Electric Co. v. United States, 17 Ct. Int'l Trade 268 (cit 1993).

Opinion

Opinion

Tsoucalas, Judge:

The administrative determination under review in this proceeding is the Department of Commerce, International Trade Administration’s (“ITA”) Results Pursuant to Court Remand of An-tifriction Bearings from Japan, General Electric Company v. United States, Remand, Court No. 91-08-00588 September 29, 1992 (“Remand Results”). Plaintiff, General Electric Company (“GE”), moves pursuant to Rules 1 and 7 of the Rules of this Court for a second remand in this [269]*269case alleging that the ITA incorrectly continued to use sales from outside the period of review in calculating antidumping duties to be assessed against GE’s imports of antifriction bearings (“AFBs”). Plaintiff’s Memorandum in Opposition to Remand Results (“Plaintiffs Memorandum”).

Defendant states that “ [a]fter further review of the information submitted by plaintiff, Commerce agrees that the eight sales identified by plaintiff occurred before the period of review, and that the case should be remanded to Commerce for exclusion of the eight sales from the calculation of plaintiffs antidumping duties and recalculation of the an-tidumping duties.” Defendant’s Response to Plaintiff’s Motion for a Second Remand (“Defendant’s Response”) at 1-2.

Defendant-intervenor The Torrington Company (“Torrington”) opposes plaintiffs motion for a second remand and has filed a motion of its own requesting this Court to affirm the remand results filed on January 5, 1993 by the ITA with this Court. Response of The Torrington Company to GE Memorandum in Opposition to Remand Results (“Tor-rington’s Opposition”) at 2-10; Motion of The Torrington Company for Entry of Judgment Affirming Remand Results. GE opposes Tor-rington’s motion to affirm the remand results. Plaintiff’s Opposition to Motion of Torrington Company for Judgment Affirming Remand Results.

Defendant-intervenor Federal-Mogul Corporation has not responded to these motions.

A complete description of the issues and background of this case is presented at General Elec. Co. v. United States, 16 CIT 864, 802 F. Supp. 474 (1992), familiarity with which is presumed. The central issue now before this Court is whether upon remand GE presented substantial evidence to the ITA which shows that certain AFB sales occurred outside the period of review and therefore should not have been used in assessing dumping duties on GE’s entries of AFBs from Japan made during the period of review.

In order to calculate the actual amount of antidumping duties to be assessed on imports of AFBs, the ITA requests each respondent to report the date of sale for each sale of AFBs within the period of review. In this administrative review, the period of review was from November 9, 1988 to April 30, 1990. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of An-tidumping Duty Administrative Reviews, 56 Fed. Reg. 31,754 (1991).

In the questionnaire sent by the ITA to each respondent the ITA defined the date of sale as

typically the purchase order date, the contract date, or, where written confirmation is given, the order confirmation date (i.e., the point in the transaction where the basic terms of the contract, particularly price and quantity, are agreed to by the parties involved). In the case of a long-term contract or a “requirements” contract, the date of sale is the date of the contract. If terms of sale are subject to [270]*270change, and do in fact change, up to, or even subsequent to, the date of shipment, then the date of the agreement to the new terms of sale or the date of shipment may be the appropriate date of sale.

Administrative Record Japan Public Doc. (“AR Japan Pub. Doc.”) 39 (emphasis added).

The ITA has consistently considered the date of sale to be the date upon which all material terms of the contract for sale are set, especially price and quantity. Even in situations where a material term is indefinite, the ITA will consider the date of sale to be the date of the contract if the contract provides a mechanism outside of the parties control which sets the indefinite term. This definition of date of sale has been upheld by the United States Court of Customs and Patent Appeals, predecessor to the Court of Appeals for the Federal Circuit, as well as this court. See Voss Int’l Corp. v. United States, 67 CCPA 96, 104-05, C.A.D. 1253, 628 F.2d 1328, 1334-35 (1980); Toho Titanium Co. v. United States, 14 CIT 500, 501-03, 743 F. Supp. 888, 890-91 (1990); Mitsubishi Elec. Corp. v. United States, 12 CIT 1025, 1055, 700 F. Supp. 538, 561-62 (1988), aff’d on other grounds, 898 F.2d 1577 (Fed. Cir. 1990).

The sales which GE alleges were made outside of the period of review were made pursuant to two long-term contracts. GE had entered into these contracts with NTN Corporation (“NTN”) prior to the period of review. In its questionnaire response in this review NTN reported dates of sale for these sales within the period of review. GE presented evidence to the ITA upon remand that showed that the dates of sale reported by NTN were in fact only the dates of amendments to the long-term contracts which did not change the material terms of the contracts. Therefore, GE alleges that the correct dates of sale for these imports are the dates on which GE and NTN entered into the long-term contracts. Plaintiffs Memorandum at 8-18.

GE argues that in the remand results the ITA changed its definition of date of sale to one requiring a showing that the terms of the long-term contracts were “irrevocably set” prior to the period of review in order for the sales not to be considered. Id. at 18-25 (quoting Remand Results at 5).

Torrington argues that GE failed to submit information which shows that the terms of sale for these long-term contracts were not subject to change during the period of review. Therefore, Torrington argues that the dates of the amendments to the long-term contracts reported by NTN as the dates of sale are the correct dates of sale. Torrington’s Opposition at 2-6. Torrington also argues that the ITA verified NTN’s sales data and that GE’s information has not been verified. Therefore, the ITA should at a minimum be required to verify GE’s submission and reconcile the conflict between the sales dates supplied by GE and NTN. Id. at 6-8. Finally, Torrington argues that 19 U.S.C. § 1675(a)(2) (1988) requires the ITA to calculate margins for all entries of AFBs which occurred during the period of review. Torrington points out that the entries at issue occurred during the period of review, therefore, the ITA [271]*271is required to calculate some margin for them even if the ITA finds that the dates of sale were outside of the period of review. Id. at 9-10.

In response to Torrington, GE argues that the information it submitted is not inconsistent with the verified NTN data because the ITA’s verification team never reviewed the underlying purchase orders and had no reason to question the dates of sale reported by NTN.

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