
    850 F.Supp. 7
    Torrington Co., plaintiff, and Federal-Mogul Corp., plaintiff-intervenor v. United States, defendant, and SKF USA Inc., SKF Industrie, S.p.A., and Fag Cuscinetti S.p.A., defendant-intervenors
    Court No. 91-08-00568
    (Dated March 4, 1994)
    
      Stewart and Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Geert De Prest, Margaret E. O. Edozien, William A. Fennell, Wesley K. Caine, Myron A. Brilliant, Robert A. Weaver, Patrick J. McDonough and Amy S. Dwyer) for plaintiff.
    
      Frederick L. Ikenson, EC. (Frederick L. Ikenson, J. Eric Nissley, Joseph A. Perna, V and Larry Hampel) for plaintiff-intervenor Federal-Mogul Corporation.
    
      
      Frank W Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Velta A. Melnbrencis and Jane E. Meehan); of counsel: John D. Mclnerney, Acting Deputy Chief Counsel for Import Administration, Dean A. Pinkert, Stephen J. Claeys, D. Michael Kaye and Douglas S. Cohen, Attorney-Advisors, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
    
      Howrey & Simon (Herbert C. Shelley, Scott A. Scheele,AliceA. Kipel, Thomas J. Trendl and Juliana M. Cofrancesco) for defendant-intervenors SKFUSAInc. andSKF Industrie, S.p.A.
    
      Grunfeld, Desiderio, Lebowitz & Silverman (Max F. Schutzman, David L. Simon, Andrew B. Schroth, Matthew L. Pascocello and Jeffrey S. Grimson) for defendant-interve-nor FAG Cuscinetti SpA.
   Opinion

Tsoucalas, Judge:

Plaintiff, The Torrington Company (“Torring-ton”), moves pursuant to Rules 1 and 7 of the Rules of this Court for modification of this Court’s decision in Torrington Co. v. United States, 17 CIT 672, 832 F. Supp. 365 (1993), asking this Court to remand this case to the Department of Commerce, International Trade Administration (“ITA”), to recalculate all antidumping duty margins without allowing a deduction for pre-sale inland freight in the calculation of foreign market value (“FMV”) pursuant to the United States Court of Appeals for the Federal Circuit’s decision in Ad Hoc Comm. of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, No. 93-1239 (Fed. Cir. Jan. 5, 1994). Motion of The Torrington Company to Modify Judgment and Issue a Second Remand Order (“Torrington’s Motion”).

In addition, the ITA has filed its Final Results of Redetermination Pursuant to Court Remand, The Torrington Company v. United States Slip Op. 93-234 (December 10, 1993) (“Remand Results”), regarding the ITA’s treatment of value added taxes (“VAT”) and FAG Cuscinetti SpA’s U.S. market discounts.

Background

In Torrington, 17 CIT at 680, 832 F. Supp. at 374, this Court stated that:

The reasoning of this Court in upholding the ITA’s treatment of pre-sale inventory carrying costs in this case is equally applicable to the ITA’s treatment of pre-sale movement expenses. The ITA’s decision to compare U.S. price to home market price at a contemporaneous point in the chain of commerce is reasonable. Torrington Co., 17 CIT at 215, 818 F. Supp. at 1576. In this case, the ITA has chosen an ex-factory price as the contemporaneous point in the chain of commerce. In order to make this comparison certain expenses need to be removed from both U.S. and home market prices. This Court finds nothing unreasonable in the ITA’s removal of pre-sale movement expenses from both U.S. and home market prices as measured from the same point in the chain of commerce, in this case ex-factory. Id. at 33-34; Ad Hoc Comm., 16 CIT at 118-19, 787 F. Supp. at 211-13. This method of treating pre-sale home market movement expenses has also been specifically upheld by this court in a well reasoned opinion in Nihon Cement Co. v. United States, 17 CIT 400, 415-17, Slip Op. 93-80 at 30-34, 1993 WL 185208 (May 25, 1993).
Therefore, this Court affirms the ITA’s deduction of FAG’s pre-sale movement expenses from FMV

In Torrington Co. v. United States, 17 CIT 1329, 1336, Slip Op. 93-234 (Dec. 10, 1993) at 14-15, this Court

enter[ed] final judgment on [the VAT] issue ordering the ITA to apply Italy’s VAT rate to USP [U.S. price] calculated at the same point in the stream of commerce as where Italy’s VAT is applied for home market sales and add the resulting amount to USE This case is remanded to the ITA to apply its current administrative practice and choose appropriate BIA for the adjustment to FAG’s USP for U.S. market discounts and to treat the adjustment as a direct selling expense.

Discussion

1 .Motion to Modify Judgment:

The Federal Circuit in Ad Hoc Comm, stated:

In the circumstances of this case, we believe that had Congress intended to deduct home-market transportation costs from FMVJ it would have made that intent clear. FMV and USP are intimately related concepts, given full meaning only by their relationship to one another. The Antidumping Act revolves around the difference between the two. See 19 C.F.R. § 353.2(f)(1) (1993) (defining dumping margin with reference to USP and FMV). In slightly different forms, the USP provision, 19 U.S.C. § 1677a, and the FMV provision, 19 U.S.C. § 1677b, were passed together as part of the original Antidumping Act, 1921, ch. 14, 42 Stat. 11 (1921). From the Act’s beginning, therefore, it is likely Congress has considered one only with reference to the other and has been well aware of any differences between them. That Congress included a deduction for transportation costs from USP but not from FMV leads us to conclude that Congress did not intend pre-sale home-market transportation costs to be deducted from FMV

Ad Hoc Comm., No. 93-1239 at 7-8 (footnote omitted).

Torrington argues that the Federal Circuit’s decision in Ad Hoc Comm, “held that the Department of Commerce lacks authority under the circumstance-of-sale provision (19 U.S.C. § 1677b(a)(4)) to adjust foreign market value for pre-sale inland freight expense.” Torrington’s Motion at 1-2. Therefore, Torrington argues that this Court’s decision affirming the ITA’s grant of an adjustment to FMV for pre-sale inland freight was in error and this Court should modify its decision on this issue and remand this case back to the ITA ordering the ITA to recalculate all antidumping duty margins without allowing a deduction for pre-sale inland freight in the calculation of FMV Id. at 2.

Defendant opposes Torrington’s motion. Specifically, defendant argues that the Federal Circuit’s decision in Ad Hoc Comm, only applies to adjustments to FMV for pre-sale inland freight in situations where FMV has been calculated based upon purchase price. Defendant points out that the Federal Circuit explicitly limited its decision on this issue to the calculation of FMV based upon purchase price and not when exporter’s sales price (“ESP”) is used to calculate FMV Defendant’s Opposition to Plaintiff’s Motion to Modify Judgment and Issue a Second Remand Order (“Defendant’s Opposition”) at 2.

Defendant and defendant-intervenors SKF USA Inc. and SKF Indus-trie, S.p.A. (“SKF”) also argue that the Federal Circuit’s decision on this issue was based on the ITA’s stated rationale for its decision, i.e., the ITA’s inherent authority to fill gaps in the statutory framework to achieve the purposes of the statute, and not on the circumstance of sale provision found at 19 U.S.C. § 1677b(a)(4)(B) (1988). Defendant’s Opposition at 2; Defendant-Intervenor’s Response to Plaintiff’s Motion to Modify Judgment and Issue a Second Remand Order (“SKF’s Response”) at 2-3.

Defendant and SKF point out that Torrington challenged only the ITA’s treatment of FAG Cuscinetti SpA’s (“FAG”) pre-sale inland freight expenses. Therefore, defendant and SKF argue that Torrington cannot now request this Court to order the recalculation of all the other parties dumping margins. Defendant’s Opposition at 2; SKF’s Response at 2.

Finally, defendant argues that the ITA has not had an opportunity to consider its position on this issue in light of the Federal Circuit’s decision in Ad Hoc Comm. Defendant requests this Court to remand this issue to the ITA so it can “consider the appellate decision and its impact upon this case and whether other alternatives exist for treatment of pre-sale inland freight expenses.” Defendant’s Opposition at 2.

This Court finds that Torrington’s characterization of the Federal Circuit’s decision in Ad Hoc Comm, is incorrect on certain points. First, the Ad Hoc Comm, court specifically noted that it was not ruling on whether the ITA has authority to adjust FMV for pre-sale inland freight pursuant to the circumstance of sale provision at 19 U.S.C. § 1677b(a) (4)(B). Ad Hoc Comm., No. 93-1239 at 5 n.8. Second, the Ad Hoc Comm. court limited its decision to the calculation of FMV in purchase price situations only. Id. at 5. Therefore, this Court finds that there is no basis for remanding this case to the ITA in regard to situations where FMV was calculated based upon ESE

It is a cardinal rule of administrative law that an agency should be allowed to decide an issue for itself before a court addresses that issue. McKart v. United States, 395 U.S. 185, 194 (1969). This Court agrees with the ITA that it should be given the opportunity to address this issue first in light of the Federal Circuit’s decision in Ad Hoc Comm.

Therefore, this case is remanded to the ITA to allow the ITA to determine whether it has statutory authority to adjust FMY calculated using purchase price, for only FAG’s pre-sale inland freight in light of Ad Hoc Comm., No. 93-1239.

2. Remand Results:

The ITA’s Remand Results deserve to be quoted at length:
[W]e have applied our current administrative practice to the U.S. discounts in question. Our current administrative practice is to,
deduct [ ] all U.S. discounts, rebates, or price adjustments if actual amounts were reported op a transaction-specific basis. If these expenses were not reported on a transaction-specific basis, we used BIA for the adjustment and treated the adjustment as a direct deduction from USE
Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Duty Order: Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France et al., 58 Fed. Reg. 39,729, 39,759 (1993). The U.S. discounts in question were not reported on a transaction-specific basis, and, as such, the Department had to determine a BIA methodology for the discounts, and to treat this adjustment as a direct expense. The Department has determined that BIA is the highest discount rate reported for any U.S. sale, this rate to be applied to all U.S. sales for which a discount was granted.
The Court decision also includes a final order ordering the Department to apply Italy’s value added tax (“VAT”) rate to the United States price calculated at the same point in the stream of commerce as that at which Italy’s VAT is applied for home market sales, and to add the resulting amount to USE In order to determine the actual BIA amounts for the U.S. discounts, the Department must know what the VAT adjustments will be. However, the order concerning VAT is not yet conclusive, i.e., it is still appealable, and therefore the Department will determine the actual BIA amounts for the U.S. discounts when a conclusive determination on the VAT adjustment has been made. See, Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990). In Timken, the Court of Appeals for the Federal Circuit (CAFC) distinguished between a “final decision,” i.e., a decision which can be appealed, and a “conclusive decision,” i.e., a decision which can no longer be appealed. The Department is not required to implement a final decision until it becomes conclusive. Thus, the Department’s action here is in accordance with the CAFC’s ruling in Timken.

Remand Results at 2-3.

This Court does not agree with the ITA’s interpretation of Timken. The Federal Circuit’s decision in Timken dealt solely with the issue of when the ITA is required to publish a notice in the Federal Register of an adverse court decision pursuant to 19 U.S.C. § 1516a(e) (1988). The court found that the ITA is required to publish notice even if the decision may be, or is, appealed to the Federal Circuit. The Federal Circuit found that an appealable decision of this court “is not the final court decision in the action. In this context, the word ‘final’ is used as it is used in 28 U.S.C. § 2645(c), i.e., to mean ‘conclusive.’” Timken, 893 F.2d at 339 (emphasis in original).

While the Federal Circuit found that the ITA was not required to order liquidation pursuant to 19 U.S.C. § 1516a(e) when a decision of the Court of International Trade is not “conclusive,” the ITA is nevertheless required to publish notice of the adverse decision and suspend liquidation of the subject merchandise until there is a “conclusive” court decision which will govern liquidation. Timken, 893 F.2d at 339-42.

In this case, this Court entered partial final judgment on the VAT issue ordering the ITA to treat VATs in a certain way. This partial final judgment is not “conclusive” within the meaning of Timken. However, that fact does not justify the ITA’s refusal to implement this Court’s order. Recalculation of the VAT in this case will not in any way change the position of the parties and has no effect on any appeal of the partial final judgment to the Federal Circuit.

This Court finds that this situation is more analogous to whether the ITA is required to publish notice of an adverse court decision rather than if the ITA is to liquidate entries in accordance with a decision that is not “conclusive. ” The Court has merely ordered the ITA to recalculate dumping margins using a new VAT methodology. This Court has not ordered the ITA to publish those new margins or order liquidations at the new margin rate.

At the time the ITA was required to file its Remand Results in this case no party had appealed the VAT issue to the Federal Circuit. Indeed, it is clear from the Remand Results that the ITA itself is not appealing this Court’s order. This Court finds that the ITA had no grounds for not implementing this Court’s partial final judgment ordering the ITA to “apply Italy’s VAT rate to USP calculated at the same point in the stream of commerce as where Italy’s VAT is applied for home market sales and add the resulting amount to USE” Torrington, 17 CIT at 1333, Slip Op. 93-234 at 7.

As to the treatment upon remand of U.S. discounts, the ITA seems to acquiesce in the Court’s remand instructions but has not performed the required calculations due to its views on implementing the new VAT methodology. Remand Results at 2. Since this Court finds that the ITA is required to implement the new VAT methodology, ITA shall proceed with the calculation of U.S. discounts.

Conclusion

Therefore, this Court remands this case to the ITA. The ITA is ordered to implement its new VAT methodology, to recalculate the VAT in this case pursuant to the partial final judgment on this issue previously entered in this case, and to use the newly calculated VAT to determine BIA for U.S. discounts. In addition, the ITA will determine whether it has statutory authority to adjust FMY calculated using purchase price, for only FAG’s pre-sale inland freight in light of Ad Hoc Comm., No. 93-1239. Remand results are to be filed with this Court within sixty (60) days. Comments or responses by the parties are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date responses or comments are due. 
      
       Purchase price and exporter’s sales price (“ESP”) are the two types of United States price. USp purchase price and ESP are defined at 19 U.S.C. § 1677a (1988):
      (a) United States price
      [T]he term “United States price” means the purchase price, or the exporter’s sales price, of the merchandise, whichever is appropriate.
      (b) Purchase price
      “[Pjurchase price” means the price at which merchandise is purchased, or agreed to be purchased, prior to the date of importation, from a reseller or the manufacturer or producer of the merchandise for exportation to the United States.
      (c) Exporter’s sales price
      “[Exporter's sales price" means the price at which merchandise is sold or agreed to be sold in the United States, ‘ before or after the time of importation, by or for the account of the exporter * * *.
      The purchase price is normally used as USP where the transaction prior to importation is between unrelated parties, or at arm’s length. The exporter’s sales price will be used as the USP when the U.S. importer and the foreign seller are “related parties.” See 19 U.S.C. § 1677(13) (1988). The exporter’s sales price will be the price at which the merchandise is first sold to an unrelated purchaser in the United States. 19 U.S.C. § 1677a(c).
     
      
       SKF filed notice of appeal of this Court’s partial final judgment on the VAT issue. Notice of Appeal, Court No. 91-08-00568 (Feb. 8,1994).
     