                                         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
