RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation;
The Barden Corporation (U.K.) Ltd., The Barden Corporation,
FAG Bearings Corporation v. United States and the Torrington Company

Slip Op. 01-18 (CIT February 23, 2001)

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 RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation; the Barden Corporation (U.K.) Ltd., the Barden Corporation, FAG Bearings Corporation v. United States and the Torrington Company,

Slip Op. 01-18 (CIT February 23, 2001). In accordance with the U.S. Court of International Trade's instructions, we have explained below our reasons for conducting the below-cost test on Barden's home-market sales during the period May 1, 1995, through April 30, 1996. On April 17, 2001, we released the draft results of redetermination pursuant to the remand order in Slip Op. 01-18 to all parties for comment. We received no comments.

BACKGROUND

On October 17, 1997, the Department of Commerce (the Department) issued the final results of administrative review for Barden, for the period May 1, 1995, through April 30, 1996. See 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; Final Results of Antidumping Duty Administrative Reviews, 62 FR 61963 (November 20, 1997) (AFBs 7).

On September 16, 1998, the U.S. Court of International Trade (the Court) issued its opinion in FAG (U.K.) Ltd. v. United States, F. Supp. 2d 297, 300 (1998), in which the Court invalidated the cost-of-production (COP) test with respect to Barden in the 93/94 reviews because the Court found the Department lacked "reasonable grounds to believe or suspect" that Barden made below-cost sales. The Court held:

In this case, Commerce previously had not found below-costs sales by Barden, nor had there been any allegation that Barden sold its AFBs at below-cost prices. In fact, Commerce conducted the below-cost test on Barden's COP data solely because of information it obtained when it improperly collapsed the two companies. Moreover, Commerce admits that it did not have reasonable grounds to believe that below-cost sales had occurred. Final Results, 61 Fed. Reg. at 66,490. Therefore, Commerce's actions failed to meet the requirements of 19 U.S.C. 1677b(b) and were not in accordance with law.

*****

Upon review of the record, the Court concludes that Commerce did not act in accordance with law when it collapsed FAG and Barden into a single entity, conducted a below-cost sales test on all sales made by that entity and incorporated the test results in the calculation of Barden's dumping margin. Consequently, the Court remands to Commerce to recalculate Barden's dumping margin without regard to the test results.

See FAG (U.K.), 24 F. Supp. 2d at 300.

On January 12, 1999, the Department filed a motion with the Court, requesting the Court's permission to recalculate Barden's dumping margin in the 95/96 review without regard to the results of the below-cost test.

On August 3, 2000, the Court remanded this case to the Department, directing the Department to revise its calculations in two aspects: to compare U.S. sales to home-market sales of similar merchandise if the best match failed the cost test before resorting to constructed value and to recalculate Barden's dumping margin without regard to the results of the below-cost test. See RHP v. United States, 110 F. Supp. 2d 1043 (CIT 2000), Slip Op. 00-94. On October 20, 2000, the Department complied with the Court's order and disregarded the results of the below-cost test which in effect addressed the Court's order concerning model-matching as well. As a result of this remand the margin for Barden was 2.53 percent

On February 23, 2001, the Court issued its ruling in RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation; the Barden Corporation (U.K.) Ltd., the Barden Corporation, FAG Bearings Corporation v. United States and the Torrington Company, Slip Op. 01-18 (CIT February 23, 2001) (Barden), remanding AFBs 7 to the Department again.

The order of the Court in Barden instructs the Department to clarify the reasons behind its decision to conduct the below-cost test on Barden's home-market sales during the review and to take any further action that the Department deems appropriate. In compliance with that order our reasons are set out below.

DISCUSSION

We conducted a COP investigation of Barden's home-market sales during the 95/96 review because, at the time we conducted the cost test, our last determination with respect to Barden for the 93/94 administrative review indicated that Barden had made below-cost sales (1) . See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 FR 66,472 (December 17, 1996), as amended by Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from Germany, Italy, Japan, and the United Kingdom; Amended Final Results of Antidumping Duty Administrative Reviews, 62 FR 3,003 (January 21, 1997) (AFBs 5) (stating that the Department disregarded Barden's below-cost sales). See also Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 62 FR 31566, 31570 (June 10, 1997) (AFBs 7 Preliminary). The Department explained:

Because the Department disregarded sales below the cost of production (COP) in the last completed review with respect to SNR, FAG Germany, FAG Italy, INA, SKF France, SKF Germany, SKF Italy, SKF Sweden, Koyo, Nachi, NPBS, NSK, NTN Japan, NMB Singapore/Pelmec Ind., FAG U.K., Barden U.K. and NSK/RHP and the classes or kinds of merchandise under review, we had reasonable grounds to believe or suspect that sales of the foreign product under consideration for the determination of normal value in this review may have been made at prices below the COP as provided by section 773(b)(2)(A)(ii) of the Tariff Act. Therefore, pursuant to section 773(b)(1) of the Tariff Act, we initiated COP investigations of sales by SNR, FAG Germany, FAG Italy, INA, SKF France, SKF Germany, SKF Italy, SKF Sweden, Koyo, Nachi, NPBS, NSK, NTN Japan, NMB Singapore/Pelmec, FAG U.K., and NSK/RHP in the home market.

See AFBs 7 Preliminary at 31570.

We continued to find that the application of the below-cost test was warranted in the final results. We explained:

As we stated in AFBs V at 66490, we cannot disregard the fact that we found that Barden was selling its products below the COP in the HM. Therefore, we are required to disregard such sales in accordance with section 773(b) of the Tariff Act. Moreover, pursuant to our AFBs V determination of below-cost sales by Barden in the HM, in accordance with section 773(b)(2)(A)(i) of the Tariff Act, we have the authority in this review to request COP information and apply the cost test. As a result of applying the cost test, we found below-cost sales and, therefore, disregarded Barden's below-cost sales in accordance with the statute.

See AFBs 7 at 54073.

Consequently, pursuant to section 773(b)(2)(A)(ii) of the Tariff Act, we found that we had reasonable grounds to believe or suspect that Barden had made sales below cost during the 95/96 review period and therefore we initiated and conducted the COP investigation.

In its remand order, the Court instructed the Department to take any action deemed appropriate.

FINAL RESULTS OF REDETERMINATION

If the Court affirms these remand results based on the Department's reasoning, the Department will reinstate the below-cost test on Barden's home market sales and the weighted-average margin for Barden for the 95/96 period will be 3.99 percent. Our calculations reflect the instruction of the Court in Slip Op. 00-94 with respect to the model-matching methodology. This is the same rate we published in the amended final results of review (62 FR 61963 (November 20, 1997)) for this period.

These final results of redetermination are pursuant to the remand order of the CIT in RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation; The Barden Corporation (U.K.) Ltd., The Barden Corporation, FAG Bearings Corporation v. United States and the Torrington Company, Consol. Court No. 97-11-01983, Slip Op. 01-18 (CIT February 23, 2001).



____________________

Faryar Shirzad
Assistant Secretary
    for Import Administration.

May 10, 2001        
Date


footnote:

1. Barden was not a respondent in the 94/95 administrative review.