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FINAL RESULTS OF REDETERMINATION
Consolidated Bearings Company v. United States SUMMARY The Department of Commerce has prepared these final results of redetermination pursuant to a remand order from the U.S. Court of International Trade in Consolidated Bearings Company v. United States, Court No. 99-09-02799. Upon issuance of a final and conclusive court decision, we will annul the liquidation instructions of August 4, 1998, message number 8216117, with respect to entries of antifriction bearings from Germany produced by FAG Kugelfischer and which Consolidated Company entered for consumption during the period November 9, 1988, through April 30, 1990. We will reissue instructions for those entries in accordance with the rates contained in the liquidation instructions that we issued to the U.S. Customs Service on September 9, 1997. BACKGROUND On June 5, 2001, the Court issued an order in Consolidated Bearings Company v. United States, Court No. 99-09-02799, Slip Op. 01-66 (June 5, 2001) (Consolidated I), remanding to the Department of Commerce (the Department) certain liquidation instructions that the Department had issued pursuant to the Final Results of Antidumping Duty Administrative Review of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, 56 FR 31692 (July 11, 1991) (AFBs 1), as amended by Amended Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Germany, 62 FR 32755 (June 17, 1997) (Amended AFBs 1). In Consolidated I, the Court found that the Department had improperly instructed the Customs Service to liquidate certain entries of antifriction bearings (AFBs) at the rates required at the time of entry. Specifically, the Court ruled that the Department's August 4, 1998, liquidation instructions (which applied to entries of AFBs during the period November 9, 1988, through April 30, 1990, for which earlier Manufacturer-specific instructions had not been applicable) were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law (Consolidated I, Slip Op. 01-66, at 32). The Court ordered the Department to annul the August 4,1998, liquidation instructions and take further actions not inconsistent with its opinion. On November 5, 2001, we submitted to the Court our "Final Results of Redetermination Pursuant to Court Remand" (Remand Results) in which we indicated that the Remand Results would apply to entries by Consolidated of merchandise subject to the antidumping duty orders on AFBs from Germany which covered bearings produced by FAG Kugelfischer (FAG) and which were entered during the period November 9, 1988, through April 30, 1990. We also indicated that we reviewed sales that FAG had made to the United States during that period and, based on those sales, we determined weighted-average dumping margins and then converted those dumping margins to assessment rates based on entered values or quantities. Consequently, since FAG did not report that it had sold bearings directly to Consolidated, we calculated neither dumping margins nor assessment rates for Consolidated's entries and our FAG-specific liquidation instructions, which were issued on September 9, 1997, did not cover Consolidated's purchases of FAG-made bearings. Therefore, in order to respond to the Court's order, we suggested alternative means for determining rates for the Customs Service to use in liquidating entries of FAG-produced merchandise which Consolidated entered during the period November 9, 1988, through April 30, 1990. On January 8, 2002, the Court issued an order in Consolidated Bearings Company v. United States, Court No. 99-09-02799, Slip Op. 02-03 (January 8, 2002) (Consolidated II), that vacated the Remand Results and remanded this case to the Department, instructing it to liquidate all of Consolidated's imports of FAG merchandise imported during the period of review in accordance with the September 9, 1997, liquidation instructions. DISCUSSION In Consolidated II, the Court rejected the alternative approaches and rates which the Department proposed and indicated that the Department had "misread the purpose and scope" of the Consolidated I remand. In its opinion, the Court stated that, "if Commerce issues liquidation instructions that Commerce contemplates to be applicable to a particular merchandise, Commerce cannot change its mind and enter 'corrections' a year later. ..." Slip Op. 02-03 at 4. The Court stated further that the Department is bound by the September 9, 1997, liquidation instructions and that, "(i)f Commerce is unsatisfied with a potential application of those instructions, Commerce should have issued said instructions in a clearer manner." Id. at 4-5. The Court concluded by ordering the Department's November 6, 2001, Remand Results vacated and further ordered the Department to liquidate all of Consolidated's imports of FAG merchandise imported during the period of review in accordance with the September 9, 1997, liquidation instructions. Based on the above, we feel it is necessary for us to address the Court's remarks because we now understand clearly that the Court views the August 4, 1998, instructions as a correction to the September 9, 1997, instructions. In fact, we did not issue the August 4, 1998, instructions as a correction to the September 9, 1997, instructions, as we explain further. It is our view that we did not conduct a review of all FAG-produced merchandise regardless of the exporter or reseller of this merchandise. We initiated this administrative review for FAG and our mandate was to review FAG's pricing practices with respect to its sales of subject merchandise. The mandate did not extend to other parties which may have acquired FAG-produced bearings second- or third-hand and then exported or resold these bearings to the United States. In cases in which resales are beyond the control of a reviewed party, such as FAG, it is our practice to review the pricing practices of the reseller when we are asked to do so. To do otherwise, in our opinion, would permit circumvention of the antidumping law by allowing resellers to benefit because they may be dumping to a greater extent than the party under review during the period in question. Therefore, we did not issue the liquidation instructions of August 4, 1998, to the U.S. Customs Service to correct for errors or deficiencies in the September 9, 1997, instructions. Rather, the purpose of the August 4, 1998, instructions was to cover imports not subject to the scope of the September 9, 1997, instructions. Pursuant to the Court's order, we will instruct the Customs Service to liquidate Consolidated's imports of FAG merchandise during the period of review (November 9, 1988, through April 30, 1990) using the September 9, 1997, liquidation instructions. More specifically, we will instruct Customs to use the ad valorem rates applicable to each class or kind of bearing (ball bearings, cylindrical roller bearings, and spherical plain bearings) which we calculated to be applicable to entries of merchandise imported by FAG US, FAG's U.S. subsidiary. These rates were based on FAG's reported sales through its U.S. affiliate to various U.S. customers. We have not used the per-unit (or specific) duty amounts appearing in the September 9, 1997, instructions for Consolidated for the following reasons: 1) these rates are based on FAG's specific transactions to particular importers and are not relevant to Consolidated's imports of FAG merchandise; 2) we do not have the information to combine the ad valorem and per-unit rates in the September 9, 1997, instructions into a single rate per class or kind of bearing to apply to Consolidated's entries; 3) we do not read the Court's instructions to permit any further calculations in this proceeding. FINAL RESULTS OF REDETERMINATION Upon issuance of a final and conclusive court decision, we will annul the August 4, 1998, liquidation instructions in message number 8216117 with respect to Consolidated's entries of merchandise produced by FAG and imported by Consolidated during the period November 9, 1988, through April 30, 1990. Also, pursuant to the Court's order in Consolidated II, we will instruct the U.S. Customs Service to liquidate Consolidated's imports of FAG merchandise during the period of review (November 9, 1988, to April 30, 1990) using the ad valorem rates from the September 9, 1997, liquidation instructions which we calculated based on FAG's reported sales through its U.S. affiliate to various U.S. customers. These rates are:
These final results of redetermination are pursuant to the remand order of the Court of
International Trade in Consolidated Bearings Company v. United States, Court No. 99-09-02799, Slip Op. 02-03 (January 8, 2002).
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