CAFC Resurrects Antidumping Orders on Ball Bearings from U.K. and Japan
The antidumping duty orders on ball bearings from Japan and the United Kingdom are set to be reinstated, after the Court of Appeals for the Federal Circuit decided May 16 to reverse several lower court rulings. The Court of International Trade remands had resulted in the International Trade Commission changing its affirmative injury determinations from its sunset reviews to negative ones. That led to revocation of the ball bearings orders for Japan and the U.K. in July 2011. But the appeals court said that, contrary to the lower court’s findings, the ITC injury findings were supported by record evidence, and should have stood.
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“Our belief is that once the litigation is concluded, the orders will be reinstated, and that administrative reviews that were terminated because of the lower court’s decision will be recommenced,” said Terence Stewart of Stewart and Stewart, counsel for Timken in the case. Timken was one of the domestic companies that had originally requested the investigations in the late 1980s. “Timing of events depends on whether further appeal actions are taken by the foreign producers,” he said.
Sunset reviews are conducted every five years to determine whether an antidumping or countervailing duty order should be revoked. Either a Commerce Department finding of no dumping or subsidization, or an ITC finding of no injury to domestic industry, results in revocation. Although the ITC had originally found in 2006 that injury would occur to U.S. industry if the AD duty orders on ball bearings from Japan and the U.K. were revoked, CIT found fault with aspects of those determinations and remanded several times. In March 2011, after the fourth remand, the ITC came back to the court with negative injury determinations for both Japan and the U.K., saying it was “compelled by the Court’s instructions to determine that these subject imports are not likely to have a significant impact upon revocation.” CIT affirmed, and Commerce Department revocation followed in July 2011 (see 11071517).
CAFC reversed several of those remands in its May 16 decision, finding that the ITC’s affirmative injury determinations were supported by enough evidence. According to CAFC, the lower court did not adequately defer to the ITC’s expertise in antidumping injury determinations. Although some evidence detracted from the commission’s conclusions, those facts do not detract from its findings so much that they should be reversed, CAFC said. Where the ITC’s conclusions are supported by evidence, the courts owe them deference as the findings of a Presidentially-appointed, Congressionally-confirmed, expert factfinder, it said.
The decision won’t result in reinstatement of the AD duty orders on ball bearings from France, Germany, and Italy, said Herbert Shelley of Steptoe & Johnson, counsel for SKF in the case. SKF, along with several other companies, had filed a cross-appeal, arguing that CIT should have applied its remand to the AD duty orders on ball bearings orders from France, Germany, and Italy, too. In light of its reversal of the CIT remands at issue, CAFC said those cross-appeals were moot, so the AD duty orders for France, Germany, and Italy will not be reinstated as a result of the decision.
Reinstatement of the Japan and U.K. orders will have to wait at least 60 days, Shelley said. That’s the time period during which parties may file requests for CAFC rehearing or appeals to the Supreme Court. “I don’t think Commerce can do anything until the appeal time runs, which is 60 days,” Shelley said. “They might do something preliminarily, but they can’t do anything in effect until the appeal period time runs.”