Slip Op. 10-76
UNITED STATES COURT OF INTERNATIONAL TRADE
SKF USA INC., SKF FRANCE S.A., SKF
AEROSPACE FRANCE S.A.S., SKF
GmbH, and SKF INDUSTRIE S.p.A.,
Plaintiffs,
v.
Before: Timothy C. Stanceu, Judge
UNITED STATES,
Court No. 08-00322
Defendant,
and
THE TIMKEN COMPANY,
Defendant-Intervenor.
OPINION
[Affirming a redetermination of the final results of an antidumping administrative review in
which the United States Department of Commerce recalculated the constructed value of
merchandise obtained from an unaffiliated supplier]
Dated: July 7, 2010
Steptoe & Johnson LLP (Herbert C. Shelley, Alice A. Kipel, and Laura R. Ardito) for
plaintiffs.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (L. Misha Preheim); Joanna V. Theiss and Brian R. Soiset, Office of the
Chief Counsel for Import Administration, United States Department of Commerce, of counsel,
for defendant.
Stewart and Stewart (Geert M. De Prest, Terence P. Stewart, William A. Fennell, and
Lane S. Hurewitz) for defendant-intervenor.
Court No. 08-00322 Page 2
Stanceu, Judge: The court has reviewed the Results of Redetermination Pursuant to Court
Remand (“Remand Redetermination”) filed by the International Trade Administration, United
States Department of Commerce (“Commerce” or the “Department”) on March 16, 2010.
Plaintiffs SKF USA Inc., SKF France S.A., SKF Aerospace France S.A.S., SKF GmbH (“SKF
Germany” or “SKF GmbH”), and SKF Industrie S.p.A. (collectively, “SKF” or “plaintiffs”)
brought this action to contest a final determination that Commerce issued in the eighteenth
administrative reviews of antidumping duty orders on ball bearings and parts thereof from
France, Germany, Italy, Japan, and the United Kingdom (the “Final Results”). See Ball Bearings
& Parts Thereof From France, Germany, Italy, Japan, & the United Kingdom: Final Results of
Antidumping Duty Admin. Reviews & Rescission of Reviews in Part, 73 Fed. Reg. 52,823
(Sept. 11, 2008) (“Final Results”). The court concluded that the Department acted contrary to
law in drawing an inference adverse to SKF GmbH and ordered the Department to redetermine
the constructed value of SKF GmbH’s merchandise without using an adverse inference. SKF
USA Inc. v. United States, 33 CIT __, __, 675 F. Supp. 2d 1264, 1278 (2009).
In SKF, the court determined that the Department acted lawfully in requesting cost of
production (“COP”) data from an unaffiliated supplier of SKF GmbH. Id. at __, 675 F. Supp. 2d
at 1269-72. The court further held that the Department acted within its authority in rejecting the
untimely submission of the COP data by the unaffiliated supplier and that Commerce was
authorized to use “facts otherwise available” to determine constructed value for the subject
bearings. Id. at __, 675 F. Supp. 2d at 1272-74. However, in calculating the 4.15% antidumping
duty rate assigned to SKF GmbH in the Final Results, Commerce, invoking facts otherwise
available and an adverse inference pursuant to 19 U.S.C. § 1677e (2006), applied a rate of
Court No. 08-00322 Page 3
17.66% to the sales of subject merchandise that SKF GmbH purchased from the unaffiliated
supplier because the requested COP information pertaining to that supplier was not timely
submitted to Commerce during the review. Id. at __, 675 F. Supp. 2d at 1268. The court
concluded that the Department acted contrary to law in drawing an inference adverse to SKF
GmbH upon the failure of the unaffiliated supplier to make a timely submission of the requested
COP data because Commerce made no “finding that SKF GmbH or any other of the plaintiffs
failed to respond to the best of its ability” as required by 19 U.S.C. § 1677e(b). Id. at __, 675 F.
Supp. 2d at 1274.
The court directed the Department to “recalculate SKF GmbH’s margin after
redetermining the constructed value of the subject merchandise SKF GmbH obtained from the
unaffiliated supplier” using “available record evidence, without using an inference adverse to
SKF GmbH.” Id. at __, 675 F. Supp. 2d at 1278. The court noted that
[o]n the record as it stood at the time Commerce rejected the untimely-submitted
COP data, the record information and “facts otherwise available” included the
record data pertaining to the acquisition costs incurred by SKF GmbH, a source of
information that Commerce had determined was reasonable and appropriate for
determining constructed value in numerous previous reviews of the antidumping
duty order.
Id. at __, 675 F. Supp. 2d at 1277-78. The court stated that
Commerce also had discretion to readmit to the record, and consider using as facts
otherwise available, the previously-rejected COP data, which arrived only three
business days late, a delay that was so short that it must be presumed to be
immaterial to the timely completion of the review. Both the COP data and the
acquisition cost data had the virtue of bearing a probative relationship to the
subject merchandise Commerce was attempting to value.
Id. at __, 675 F. Supp. 2d at 1278.
Court No. 08-00322 Page 4
In the Remand Redetermination, Commerce determined that “[b]ecause SKF Germany’s
acquisition cost is the only cost information on the record, pursuant to the Court’s instructions we
have recalculated the dumping margin for SKF Germany using the acquisition costs it reported
for the period of review.” Remand Redetermination 2. As a result, the weighted-average
dumping margin for SKF GmbH for the period May 1, 2006 through April 30, 2007 decreased
from 4.15% to 1.97%. Id. at 3. Commerce did not use information adverse to SKF GmbH to
recalculate the constructed value for the subject bearings, in accordance with the court’s order.
Id. at 2-3; see SKF, 33 CIT at __, 675 F. Supp. 2d at 1278, 1286.
The court allowed plaintiffs and defendant-intervenor thirty days from the submission of
Commerce’s remand redetermination in which to file with the court comments on the Remand
Redetermination. SKF, 33 CIT at __, 675 F. Supp. 2d at 1286. Neither the plaintiffs nor
defendant-intervenor filed comments. Remand Redetermination 1. Moreover, plaintiffs and
defendant-intervenor filed letters with the court declaring they have no intention of filing such
comments. See Letter from Steptoe & Johnson LLP to U.S. Ct. of Int’l Trade (Apr. 15, 2010);
Letter from Stewart & Stewart to U.S. Ct. of Int’l Trade (Apr. 21, 2010). Under these
circumstances, the court reasonably may infer that the parties concur in the Remand
Redetermination. See Wuhan Bee Healthy Co. v. United States, 32 CIT__, __, Slip Op. 08-61,
at 12 (May 29, 2008) (“Under such circumstances, Commerce ‘may well be entitled to assume
that the silent party has decided, on reflection, that it concurs in the agency’s [remand results],’
and the court will uphold the parties’ concurrence.” (quoting AL Tech Specialty Steel Corp. v.
United States, 29 CIT 276, 285, 366 F. Supp. 2d 1236, 1245 (2005))). The court therefore will
affirm the Remand Redetermination on the assumed concurrence of the parties.
Court No. 08-00322 Page 5
In addition, the court will grant declaratory relief on plaintiffs’ claim challenging the
policy, rule, or practice of the Department to issue liquidation instructions fifteen days after the
publication of the final results of an administrative review (the “fifteen-day policy”). SKF,
33 CIT at __, 675 F. Supp. 2d at 1286. For the reasons stated in SKF, 33 CIT at __, 675 F. Supp.
2d at 1280-85, the court will enter a declaratory judgment that the Department’s fifteen-day
policy is contrary to law.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: July 7, 2010
New York, New York