FINAL RESULTS OF REDETERMINATION PURSUANT TO COURT REMAND - FAG Italia S.p.A. and FAG Bearings Corporation; SKF USA Inc. and SKF Industrie S.p.A. v. United States and the Torrington Company

FAG Italia S.p.A. and FAG Bearings Corporation; SKF USA Inc. and SKF Industrie S.p.A.
v. United States and the Torrington Company

Slip Op. 00-82(CIT July 13, 2000)

FINAL RESULTS OF REDETERMINATION PURSUANT TO COURT REMAND

SUMMARY

The Department of Commerce has prepared these final results of redetermination pursuant to the remand order of the U.S. Court of International Trade in FAG Italia S.p.A. and FAG Bearings Corporation; SKF USA Inc. and SKF Industrie S.p.A. v. United States and The Torrington Company, Slip Op. 00-82 (CIT July 13, 2000). In accordance with the U.S. Court of International Trade's instructions, to calculate normal value for FAG Italia, we have matched United States sales to home-market sales of "similar" merchandise before resorting to constructed value. Furthermore, we have annulled all findings and conclusions made pursuant to our duty-absorption inquiry conducted for the subject review with respect to SKF USA Inc. and FAG Bearings Corporation.

On September 1, 2000, we released to interested parties for comment the draft results of redetermination pursuant to court remand. On September 8, 2000, we received comments from The Torrington Company which we have addressed in the "Discussion" section that follows. We did not receive comments from any other party.

BACKGROUND AND RESULTS

On July 13, 2000, the U.S. Court of International Trade (the CIT) issued its ruling in FAG Italia S.p.A. and FAG Bearings Corporation; SKF USA Inc. and SKF Industrie S.p.A. v. United States and the Torrington Company, Slip Op. 00-82 (CIT July 13, 2000) (FAG, SKF), remanding to the Department of Commerce (the Department) the final results in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews, 62 FR 54043 (October 17, 1997), as amended by Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France, Germany, Italy, Japan, Romania, Singapore[,] Sweden and the United Kingdom; Amended Final Results of Antidumping Duty Administrative Reviews, 62 FR 61963 (November 20, 1997) (collectively AFBs 7). This remand directly affects FAG Italia S.p.A, and FAG Bearings Corporation (collectively "FAG"), and SKF USA Inc. and SKF Industrie S.p.A. (collectively "SKF") with respect to the antidumping duty order on ball bearings and parts thereof from Italy.

The first issue remanded concerns the Department's reliance on constructed value instead of "similar" home-market sales when it determined that identical matches were outside the ordinary course of trade. Citing the decision in CEMEX, S.A. v. United States, 133 F.3d 897, 904 (Fed. Cir. 1998), the CIT found here that the Department is required to base normal value on non-identical but similar merchandise rather than constructed value when sales of identical merchandise have been found to be outside the ordinary course of trade.

The second issue remanded in FAG, SKF concerns whether section 751(a)(4) of the Tariff Act of 1930, as amended, authorizes the Department to conduct a duty-absorption inquiry for the antidumping duty order in question since the order predates the effective date of the Uruguay Round Agreements Act. Citing its decision in SKF USA Inc. v. United States, Slip Op. 00-28 (CIT March 22, 2000), the CIT found that the Department lacked statutory authority to conduct a duty-absorption inquiry in AFBs 7 and remanded the review to the Department to annul all findings and conclusions made pursuant to its duty-absorption inquiry.

DISCUSSION

Comment: The Torrington Company (Torrington) contends that the Department has inherent authority to conduct inquiries into the absorption of antidumping duties in any review apart from the specific requirement imposed by section 751(a)(4) of the Act. It contends further that the CIT exceeded its power on judicial review by directing the Department to annul all findings and conclusions made pursuant to its duty-absorption inquiry without permitting the agency to reach a determination consistent with the CIT's order. In support of these arguments, Torrington cites to the rehearing motion it filed in the related court proceeding, Ct. No. 99-08-00473, dated March 30, 2000, and the April 14, 2000, rehearing motion filed by the United States in the same proceeding. It provides copies of these motions as attachments to its September 8, 2000, comments on the Department's draft remand results. While acknowledging that the CIT denied both motions in an Order entered May 8, 2000, Torrington urges the Department to disagree with the decision of the CIT in Slip. Op. 00-82 and on the aforementioned rehearing motions and state that the CIT exceeded its power on judicial review.

Department's Position: As noted by Torrington, on April 14, 2000, the Department presented a motion to the CIT to modify its ruling in the related proceeding on the ground that the CIT had erred as a matter of law. See Defendant's Motion for Rehearing and Modification of the CIT's Decision, Slip Op. 00-28, and accompanying Order of March 22, 2000, filed in Court No. 99-08-00473 (CIT April 14, 2000). That motion in the related proceeding set forth the Department's position on the matter. As such, there is no need to repeat it here.

FINAL RESULTS OF REDETERMINATION

With respect to the first issue remanded in FAG, SKF, the Department hereby complies with the remand order as directed by the CIT and for the calculation of normal value for FAG attempted to first match United States sales to similar home-market sales before resorting to constructed value. See the September 11, 2000, Analysis Memorandum for the Final Results of Redetermination for FAG for a detailed description of the changes we made to carry out the model-matching methodology directed by the CIT. Furthermore, with respect to the second issue remanded in FAG, SKF, the Department hereby complies with the remand order as directed by the CIT and annuls all findings and conclusions made pursuant to its duty-absorption inquiry conducted for AFBs 7 with respect to FAG and SKF.

These changes had no effect on FAG's and SKF's weighted-average margins or duty-assessment rates. Upon a final and conclusive court decision, we will publish amended final results of review to that effect.

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Troy H. Cribb
Acting Assistant Secretary
for Import Administration

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