[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Notices]
[Pages 41435-41436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17427]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-428-801]
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: (202) 482-
3477 or (202) 482-4477.
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{time} acted contrary to law
in drawing an inference adverse for SKF {Germany{time} upon the
failure of the unaffiliated supplier to make a timely submission of the
requested COP data''
[[Page 41436]]
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.
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\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.
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In its remand order, the CIT directed the Department to
``recalculate SKF {Germany's{time} margin after redetermining the
constructed value of the subject merchandise SKF {Germany{time}
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.
[FR Doc. 2010-17427 Filed 7-15-10; 8:45 am]
BILLING CODE 3510-DS-P