2010-17427. Ball Bearings and Parts Thereof From Germany: Notice of Court Decision Not in Harmony With Final Results of Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On July 7, 2010, the United States Court of International Trade sustained the Department of Commerce's results of redetermination on remand concerning the final results of the administrative review of the antidumping duty order on ball bearings and parts thereof from Germany. See SKF USA Inc., v. United States, Slip Op. 10-76 (CIT July 7, 2010). The Department is now issuing this notice of court decision not in harmony with the Department of Commerce's determination.

DATES:

Effective Date: July 16, 2010.

FOR FURTHER INFORMATION CONTACT:

Hermes Pinilla or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] or [phone].

SUPPLEMENTARY INFORMATION:

Background

On September 11, 2008, the Department of Commerce (the Department) published the final results of the administrative reviews of the antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom for the period May 1, 2006, through April 30, 2007. See Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews and Rescission of Reviews in Part, 73 FR 52823 (September 11, 2008). SKF USA Inc., SKF France S.A., SKF Aerospace France S.A.S., SKF GmbH,^[1] and SKF Industrie S.p.A filed a lawsuit challenging certain aspects of the final results. On December 21, 2009, the United States Court of International Trade (CIT) concluded that the Department acted within its authority and according to law in requesting cost-of-production (COP) data from SKF Germany's unaffiliated suppliers. See SKF USA Inc., v. United States, 675 F. Supp. 2d 1264 (CIT December 21, 2009) (SKF Germany). The CIT also upheld the Department's decision to reject the COP information submitted by SKF Germany's unaffiliated supplier as untimely and to resort to facts otherwise available. Specifically, the CIT stated that “the Department has broad authority to set, and extend, its deadlines for submission of requested information, but on the uncontested facts of this case it acted within its authority in deeming the COP data an untimely submission.” See SKF Germany, 675 F. Supp. 2d at 1272-74. The CIT held, however, that “{the Department} acted contrary to law in drawing an inference adverse for SKF {Germany} upon the failure of the unaffiliated supplier to make a timely submission of the requested COP data” without a finding that SKF Germany had failed to act to the best of its ability. See SKF Germany, 675 F. Supp. 2d at 1268.

In its remand order, the CIT directed the Department to “recalculate SKF {Germany's} margin after redetermining the constructed value of the subject merchandise SKF {Germany} obtained from the unaffiliated supplier” using information that is not adverse to SKF Germany. See SKF Germany, 675 F. Supp. 2d at 1278. In accordance with the CIT's remand order, the Department filed its redetermination on remand of the final results (remand results) on March 16, 2010, in which the Department recalculated the margin for SKF Germany without use of an adverse inference. On July 7, 2010, the CIT affirmed the Department's remand results. See SKF USA Inc., v. United States, Slip Op. 10-76 (CIT July 7, 2010).

Decision Not in Harmony

In SKF Germany, the CIT ruled that the Department acted contrary to law in drawing an inference adverse for SKF Germany based upon the failure of an unaffiliated supplier to make a timely submission of the requested COP data without a finding that SKF Germany had failed to act to the best of its ability.

As a result of changes to calculations in our remand results, the weighted-average margin for SKF Germany for the period May 1, 2006, through April 30, 2007, changed from 4.15 percent to 1.97 percent. Accordingly, absent an appeal or, if appealed, upon a “conclusive” court decision, we will amend our final results of this review to reflect the recalculation of the margin for SKF Germany.

Suspension of Liquidation

The United States Court of Appeals for Federal Circuit (CAFC) has held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination. See The Timken Company v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990). Publication of this notice fulfills that obligation. The CAFC also held that, in such a case, the Department must suspend liquidation until there is a “conclusive” decision in the action. Id. Therefore, the Department must suspend liquidation pending the expiration of the period to appeal the CIT's July 7, 2010, decision or, if appealed, pending a final decision of the CAFC.

Because entries of ball bearings and parts thereof from Germany produced by, exported to, or imported into the United States by SKF Germany are currently being suspended pursuant to the court's injunction order in effect, the Department does not need to order U.S. Customs and Border Protection to suspend liquidation of affected entries. The Department will not order the lifting of the suspension of liquidation on applicable entries of ball bearings and parts thereof from Germany made during the review period before a court decision in this lawsuit becomes final and conclusive.

We are issuing and publishing this notice in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended.

Dated: July 12, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  The CIT refers to the German company as “SKF GmbH” in its decision. The Department refers to the company as “SKF Germany” in its determination and in this notice.