BMW of North America LLC v. United States

208 F. Supp. 3d 1388, 39 I.T.R.D. (BNA) 1009, 2017 Ct. Intl. Trade LEXIS 25, 2017 WL 991717
United States Court of International Trade·Decided March 2, 2017·No. Slip Op. 17-22; Court No. 15-00052·Published·Cited by 4 cases

Opinion

OPINION AND ORDER

Choe-Groves, Judge:

This matter is before the court on a Rule 56.2 motion for judgment on the agency record filed by Plaintiff BMW of North America (“Plaintiff’ or “BMW”). See PL’s Rule 56.2 Mot. J. Upon Agency R., Sept. 18, 2015, ECF No. 29 (“Pl.’s Mem. Supp.”). Plaintiff brings this action pursuant to 28 U.S.C. § 1581(c) (2012)1 for judicial review of decisions made by the U.S. Department of Commerce (“Commerce” or “Department”) during the administrative review of the antidumping order on ball bearings and parts thereof from the United Kingdom. See Compl. Feb. 27, 2016, ECF No. 7; See Ball Bearings and Parts Thereof From Japan and the United Kingdom, 80 Fed. Reg. 4,248 (Dep’t Commerce Jan. 27, 2015) (final results for administrative review 2010-2011), as amended, 80 Fed. Reg. 9,694 (Dep’t Commerce February 24, 2015) (amended final results for administrative review 2010-2011) (collectively, “Final Results”)2 and accompanying Issues & Decision Memorandum for the Antidumping Duty Administrative Review of Ball Bearings and Parts Thereof from the United Kingdom; 2010-2011, A-412-801, (Jan. 22, 2015), available at http://enforeement. trade.gov/frp/summary/multiple/2015-01481-l.pdf (last visited Feb. 22, 2017) (“I&D Memo”). For the reasons set forth below, the court upholds Commerce’s determination to resume the administrative review and apply an adverse inference in selecting from facts otherwise available against Plaintiff, but remands for redeter-mination Commerce’s decision to assign Plaintiff a 254.25 percent dumping margin.

BACKGROUND

Commerce issued an antidumping order on ball bearings and parts thereof from the United Kingdom on May 15, 1989. See Ball Bearings, and Cylindrical Roller Bearings and Parts Thereof From the United Kingdom, 54 Fed. Reg. 20,910 (Dep’t Commerce May 15, 1989) (anti-dumping duty orders and amendments to the final determinations of sales at less than fair value) (“Order”). Commerce and the U.S. International Trade Commission (“ITC”) instituted the second sunset review of the Order in 2005. See Initiation of Five-year (“Sunset”) Reviews, 70 Fed. Reg. 31,423, 31,423 (Dep’t Commerce June [1391]*13911, 2005); Certain Bearings From China, France, Germany, Italy, Japan, Singapore, and the United Kingdom, 70 Fed. Reg. 31,531, 31,532 (ITC Jun. 1, 2005) (institution of five-year reviews). The ITC determined that revocation of the Order would lead to continuation or recurrence of material injury to the domestic industry and various parties challenged the decision at the U.S. Court of International Trade (“CIT”). See Certain Bearings From China, France, Germany, Italy, Japan, Singapore, and the United Kingdom, 71 Fed. Reg. 51,850 (ITC Aug. 31, 2006) (final results determination in five-year reviews); NSK Corp. v. United States, 35 CIT —, 774 F.Supp.2d 1296 (2011).

While the ITC’s injury determination was on appeal, Commerce published a notice of opportunity to request administrative review of the Order for entries of the subject merchandise from May 1, 2010-April 30, 2011. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 76 Fed. Reg. 24,460 (Dep’t Commerce May 2, 2011) (opportunity to request administrative review). Plaintiff filed a request for an administrative review of the Order on May 31, 2011. See BMW’s Request for Administrative Review of the Antidumping Duty Order on Ball Bearings and Parts Thereof From The United Kingdom, PD 3, Doc. No. 4977 (May 31, 2011). Commerce published its notice of initiation of the administrative review on June 28, 2011. See Initiation of Antidumping and Countervailing Duty Administrative Reviewsand Request for Revocation in Part, 76 Fed. Reg. 37,781 (Dep’t Commerce Jun. 28, 2011) (“Notice of Initiation”).

Pursuant to the CIT’s decision in NSK Corp. v. United States, 35 C.I.T. -, 774 F.Supp.2d 1296 (2011), Commerce published a notice on July 15, 2011 announcing that: 1) the Order was revoked; 2) all ongoing administrative reviews were “discontinued,” 3) the collection of cash deposits was “discontinued,” and 4) liquidation was suspended for unliquidated entries of ball bearings entered or withdrawn from a warehouse between July 11, 2005 through April 30, 2011, until a final and conclusive court decision. See Ball Bearings and Parts Thereof From Japan and the United Kingdom, 76 Fed. Reg. 41,761 (Dep’t Commerce Jul. 15, 2011) (revocation of an-tidumping duty orders) (“Revocation Notice”). The Court of Appeals for the Federal Circuit reversed the CIT decision in NSK Corp. and ordered the CIT to reinstate the ITC’s affirmative injury determination. See NSK Corp. v. U.S. Intern. Trade Com’n, 716 F.3d 1352 (Fed. Cir. 2013). The CIT then reinstated the ITC’s affirmative injury determination in a final judgment. See NSK Corp. v. U.S. Intern. Trade Com’n, Slip Op. 13-143, 2013 WL 6068455 (November 18, 2013).

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BMW of North America LLC v. United States, 208 F. Supp. 3d 1388, 39 I.T.R.D. (BNA) 1009, 2017 Ct. Intl. Trade LEXIS 25, 2017 WL 991717 (cit 2017).

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