Slip Op.06-133 UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : SKF USA INC, SKF FRANCE S.A., : and SARMA, : : Plaintiff s, :

: Before: WALLACH, J udge v. : Court No.: 03-00490 : UNI TED STATE S, : : PUBLIC V ERSION Defend ant, :

: and : : TIMKEN U.S. CORPORATI ON, : : Defendant-Inte

rvenor. : ____________________________________: [United States Department of Commerce’s Final Results of Redetermination is Affirmed in Part and Stricken in Part.] Dated: September 1 , 2006 St ept oe & Jo hns on, LLP , ( Herbert C. Shelley , Alice A. Kipel , and Susan R. Gihring ) for Plaintiff s. Peter D. Keisler , Assistan t Attorne y G eneral ; David M. Cohen , Direct or; Jeanne E. Davidson , Deputy Director; Stephen C. Tosini , Trial Attorney, U.S. De partment of Justice, Civil Division, Commercial Litigation Bra nch; and Rachae l E. Wenthol d , Attorney-Advisor, O ffice of Chief Counsel for Imp ort Admini stration, U.S. Depa rtment of Commerce , of Counse l, for De fendant

.

OPINION Wallach, Judge: I Introduction This matter comes before the court following the c ourt’s order of August 24, 2005,2

remanding this matter to the United States Department of Commerce ( “the Department” or “Commerce”) to recalculate its antidumping duty margin for SKF USA I

nc., SKF France S.A., and Sarma (collectively

“SKF”) in its administrative determination in Ball Be arings and Parts Thereo f from F rance, Germany , Ita ly, Japan and S ingapo re: Fina l Results of

Antidumpin

g Duty Administra

tive Revie

ws, Recis sion of Ad

ministrati ve Revie w in Part, a

nd Deter mination N ot to Revoke Order in Part , 68 Fed. Reg. 35,623 (June 16, 2003) (“ Final Re sults ”). With re gard to its recalculation of SKF’s margin, Commerce ’s Remand Redetermination is found to be supported by s ubstantia l evidenc e and in a

ccorda nce with l aw beca

use Commer

ce prope rly supporte d its finding after conducting a r e-verification of SKF’s facilities in Franc e. As a result, the portion of Commerce’s Remand Redetermination recalculating SKF’s margin is affirmed. Bec ause the remainder of the Remand Redetermination attempts to improperly reargue issues already

decided by this court, misstates the court’s prior opinion, misconstrues its holding, a nd mischaracterizes the evidence before the court, it is hereby stricken. This court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2003).
II Background Plaintiff s are pr oducers and export

ers of ba ll bearin gs subje ct to the a

ntidumping

duty order on ball bearings and parts there of from France published on May 15, 1989. Antidumping Duty Orders: Ball Be arings , Cy lindrica l Roller B earing s, Spheric al Plain B earing s, and Par ts Thereof from France , 54 Fed. Reg. 20,902 (May 15, 1989). On February

7, 2003, Commerce published its preliminary results of administrative re view for the May

1, 2001, to April 30, 2002, period of review (“POR”). Ball Bearings and Parts Ther eof from France, Germa

ny, I taly, and3

Singapore: Preliminary

Results of Antidumping Duty Administrative Reviews, Partial Rescission of Administrative Reviews, and Notice of I ntent to Revoke Order in Part , 68 Fed. Reg. 6404 (February 7, 2003). In the Final Re sults , Commerce held that because SKF and Sarma we re unprepared at verification to segrega

te sales by marke

t or by class or kind of subjec t merchandise Commerce was therefore unable to verify the accuracy

of the reported information. Defendant’s Opposition at 6. As a result, Commerce found that SKF did not act to the best of its ability and assigned a margin of 10.08 percent based on par tial adverse facts available (“AF A”) in the Final Re sults

. Plaintiffs’ Motion for Judgment Upon the Agency Record (“Plaintiffs’ Motion”) at 4. The par ties file d briefs

on this matt

er in whic h Plaintiff

s claimed they had offe red to provide all necessary

documentation at verification and were fully prepared to do so, and the Defendant directly

disputed that allegation say ing that at verification Plaintiffs’ representatives had said t hey were unable to ob tain or pr ovide the necessa ry document

ation. The

parties t o this proceeding were notified via a n in-court status conference held on September 10, 2004, that the court intended to hold a hearing on this matter. The court he ld its hearing on November 19, 2004, to determine the accuracy of the directly c onflicting factual statements made by the parties in their initial briefs. The court issued its order on August 24, 2005, instructing Commerceto reevaluat e and re -examine i

ts decision by

providing

evidenti ary

support f or utilizing

partial a dverse facts available, unrelated to SKF’s alleg ed failure to offer evidence a t verification, or in the alternative to re-calculate SKF’s mar gin using SKF’s own information. Commerce filed its Final Results of Redetermination on December 20, 2005, and reca lculated SKF’s margin as 6.19 percent for the period of review of May 1, 2001 to April 30, 2002. U.S. Dep’t of Commerc e,4

Final Results of Redetermination at 1 (December 20, 2005) (“Remand Redetermination”). Plaintiffs filed their Response on January 23, 2006, and D efendant filed its Reply on June 12, 2006. Oral argument was held on Aug ust 24, 2006.
III Arguments Commerce states that it has reconsidered its partial adverse facts available determination for SKF by r

eopening the record and allowing SKF to supply supporting documentation to recalculate the antidumping duty margin. Id. Commerce further states that it complied with the court’s order albeit under protest. Id. Plaintiffs agree that Commerce properly recalculated SKF’s marg in without the use of partial adverse facts available and c oncur with the result of the Remand Redetermination, but not with much of its content. Plaintiffs’ Comments on the Final Results of Redetermination (“Plaintiffs’ Comments”) at 1. IV Applicable Legal Standard The Court of International Tra de, when reviewing a challeng e to the Department’s final results of administrative review, will uphold Commerce ’s deter

minations u

nless it is “unsuppo rted by

substantia

l evidenc e on the r

ecord, o r otherw ise not in a

ccorda nce with law. . . .” 19 U.S.C. § 1516a(b)(1)(B)(i) (2003) . Substantial evidence is “more than a mere scintilla . It me ans such r

elevant evidenc e as a re asonable mind migh

t accep t as adeq

uate to support a conclusion.” Universa l Camera Corp. v. N

LRB , 340 U.S. 474, 477, 71 S. Ct. 456, 459, 95 L. Ed. 456, 4 62 (19 51) (q uoti ng Consol. Edi son Co. v. N LRB , 305 U.S. 1 97, 229, 59 S. Ct. 206, 217, 83 L.Ed. 126 (1938)). Substantial evidence ha s been defined by the courts as5

“something less than the weight of the evidenc e, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative a gency ’s finding from being supported by substantial evidenc e.” Consolo v. Fed. Mar. Comm’n , 383 U.S. 6 07, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966). The court, howe ver, “may not substitute its judgment for that of the [agency

] when the choice is ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter be en before it de novo.’” American Spring Wire Corp. v. United States , 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984) (quot ing Universal Camera , 340 U.S. at 488). V Discussion A Comm erce P roperly R

ecalcula ted SKF ’s Antidum

ping Duty Ma rgin in its R emand Redetermination Commerce reopened the administrative record a nd conducted a second verification of SKF and Sarma on September 28-29, 2005. Remand Redetermination at 4. Upon completion of the verification, Commerce recalculated SKF ’s margin using the company ’s own data and without the application of partial facts available. Id. According to Commerce the verifica tion of Sarma’s data required numerous steps and sever al personnel in order to demonstrate how Plaintiff compiled and reported its sales data. Id. at 11. Commerce

states in i

ts Remand R

edeter mination th at it disag

rees wit h the cour t’s Aug ust 24, 2005, Opinion. Id. at 4. It challenge s the court’s conclusions regarding Commerce’s conduct during its administrative review and objects to the extra-recor d affidavits submitted by SKF for the court’s review. Id. at 5. Defendant also states in its Remand Redetermination that it disagrees6

with what it calls “the court’s ‘verification test’” during the evidentiary he aring held on November 19, 2004. Id. at 12-13. SKF agrees that Commerce prope rly verified Sar

ma’s sales and properly

recalculated SKF’s margin. Plaintiffs’ Comments at 2-3. SKF, however, disag rees with the Defendant’s characterization of the proceeding s before the Court of Inter national Trade. Id. at 5-6.
B Commerce

May Not Relitigate This Matter Defendant believes that it can rearg ue issues before the Court of I nternational Trade based upon dicta in Viraj Group, Ltd., v. United States , 343 F. 3d 1371, 1376 (Fed. Cir. 2003). There, the Federal Circuit, addre ssed the issue of whether the government wa s a non-prevailing party and c ould assert a case or controversy

. Id. In doing s o, th e court noted that “ [e]v en tho ugh technically the pr

evailing party

. . . the government prevailed only because it acquiesced and abandon ed its orig

inal positi on, which

it had zea

lously advoca ted, and a dopted under prot

est a contrary position forced upon it by the cour t. Thus, in substance, the government is truly the non-prevailing party

in this case.” Id. The gov ernment

indicate d at oral

argume nt that it ta

kes the F ederal

Circuit’s refer ence to “zealous advocacy

” as not only a pre dicate to preserving its rights of appea l, but as a virtual license to reargue and re

ject issues already

decided by this cour

t. Although the Defendant, like many litigants, may

wish to re-argue and re- litigate issues already decided, it may not do so, without the prior permission of the court, at the trial court level. This court simply does not read Viraj in the fashion asserted by the Government, nor does it understand the law to require rearg ument for purposes of preserving an a ppellate right. Rather,1 In SKF , 391 F. Supp. 2d at 1329, the court stated: The core conflict between the par ties is whether representatives of SKF did or did not offer to provide supporting documentation. In its Remand Redetermination the Depar tment of Commerce repeatedly characterized what the court did at the he aring w

hich prod uced tha t opinion a s a “ver

ification test” wh

ich it arg ues, produce d informa

tion which

was insuf

ficient f or Depa rtment ve rifiers to have c onducted

a full audit. Remand Redetermination at 12-13. In oral arg

ument regarding this Remand Redetermination the c ourt questioned Governm ent couns el how the Department could

take tha t position w

hen at the oral ar gument, prior to the SKF opinion referenced above, the court stated: 7 a party may

preserve an issue by

stating an objection or offering a doc ument on the record. See,
e.g. , Union Carbide Chem. & Plastics Tech. Corp. v. Shell Oil Co. , 425 F. 3d 1366, 1374 (Fed. Cir. 2005)

(“couns el . . . inf

ormed the district c ourt that he ‘would like to just

read the se [issues] into the record for purposes of preserving issues for appeal.’ After the district court allowed [counsel] to make his record, he objected to the jury instructions by requesting insertion of [specific] language. . . . Beca use [the party] sufficiently raised specific objections before jury deliber ations, [it] di d not waiv e its objec tions to the

sufficie ncy of evide nce on a ppeal.” ). Thus, if Defendant wishes to challenge this court’s f inal decisions, the appropriate step is to file an appeal at the Court of Appeals for the Fede ral Circuit. It need not demonstrate a ny particular form of advocacy , it may not rearg ue its position before this court without first filing an appropriate motion for rehearing pur suant to USCIT R. 59, and it must not, in any c ase, act in a contumacious fashion. As stated by the cour

t, in its earlier opinion, the primary issue be fore it was “whether representatives of SKF did or did not offer to provide supporting documentation to Department officials from which they could verify the

accuracy of Sarma’s reported sales.” 1 SKF USA Inc. et. . . Mr. Tosini, let me state my conce rn to you as I

did in September and October. My c oncern i s that some

body is ly ing to me . Not whether the quantity of evidence is sufficient to meet the approval of the Department of Commerce , but rather–because that is discretionary on the part of the Department of Commerce, and I review it as to whethe r there is law or evidence to support it. I don’t reweigh it. That is not what we are doing here. * * * [I]t is about that specific factual question, did they make the offer to provide the information and was it turned down or not

. . . . Transcr ipt of Nove

mber 19, 2 004, Evide

ntiary Hearing (“Hr’g Tr.”) a t 228:5-24

(emphas is added). Counsel for the United States informed the court that it was the Department’s position that it could read the “core conflict” sentenc e in this court’s opinion quoted above as meaning the court be lieved it w as testing the adeq uacy of records offe

red at ve rificat ion as oppo sed as to whether someone was ly

ing about the offer of any records at all. Counsel also informed the court, th at while t

he above quoted co lloquy

might mak

e it clea r that wa s not the c ourt’s int ent, the Department felt it could look only to this court’s opinion to deter mine its meaning, and not the discu ssion at or

al arg ument or the pleadi

ngs or e vidence before this cour t. The court presumes that a competent and ethical ag ency off icial, adequately

advised of the record before this court read this cour t’s opinion in full, including its conclusion that “. . . there is w ell nigh

irrefr agable evidenc e that Comm erce’ s repre sentation s rega rding th e events which occurred at verification wer e . . . not factually a

ccurate . . . .” Nothing in that opinion or the record behind it identified the conflict between the pa rties as having been whichinformation was offered as opposed to whether information was offered. Id. at 133 3 (cit ing Galen Med. Assocs., Inc. v. United States , 369 F.3d 1324, 1337 (Fed. Cir. 2004)). According ly, the Governm ent’s co

unsel hav ing off ered no b etter expl anation, and base d on the sta tements ma

de in the Remand Redetermination this court has determined that the Department of Commerc e’s “interpretation” constitutes a mischaracterization of this court’s opinion. 8 al. v. United States , Slip Op. 05-104 at 6, 391 F. Supp. 2d 1327, 1330 (CIT 2005). Commerce’s attempts t o chara cterize t he cours e of eve

nts during

the cour t’s evide ntiary hearingas a miniverification is factually

incorrect. See Remand Redetermination at 12-15. What the court determined at the hearing was that SKF a nd Sarma were able to provide the information requested by

Commerce officials and would have done so at the time of the orig inal verification.9

SKF , 391 F. Su

pp. 2d at 1 331. That

determination re

mains unchange d. What is pa rticular ly relevant to that conclusion is that “offers were made and persons, at Sarma, were able and available to send information to the verification site.” Plaintiffs’ Comments at 5. The court’s Opinion of August 24, 2005, discusses the sequence of events that took place during Commerce’s initial verification, the briefings, the evidentiar y hearing , as well as the court’s conclusion. SKF , 391 F. Su pp. 2d at 1 330-33. Co mmerce may not, by inaccur ately recharacterizing the inquiry , findings, and holding of this court, be permitted to relitigate pr ior

matters t o the detr iment of Pla

intiffs, or of the ju

dicial pr ocess. The Department also challenges the c ourt’s conclusion that it should have “provided SKF with an opportunity to remedy its verification failure,” pursuant to Section 782(d) of the Tariff Act of 1930, section 782(i) of the Act, and 19 C.F.R. § 351.307. Remand Redetermination at 16. As stated by the cour

t in SKF , 391 F. Su

pp. 2d at 1 336, Comme

rce’s a nnounce ment of its decision to use partial adverse facts available in the Final Re sults with out p rovid ing a cooperative respondent such as SKF the opportunity to respond is contrary

to 19 U.S.C. § 1677m(d). Pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(b)(1)(B)(i), this court ha s the authority to remand matters to Commerce if it is “unsupported by substantial evidenc e on the record, or otherwise not in accordanc e with law” and instructed Commerce to re-examine the record of this case accordingly. Id. C Even If Commerce Could Reargue the Issues P reviously Before This Court, It May Not Do So By Mischaracterizing, Misstating, and Misconstruing the Court’s Opinion Defend ant state s in its Rema

nd Redete

rmination that “[a]t the center of this litigation are the questions of whether SKF/Sarma offered infor mation to the Department’s verifiers and, if so,10

whether the infor mation wou

ld have su

pported Sa

rma’s de signati on of sale s to repor t and sale s it did not report to the Department in its questionnaire response.” Remand Redeter mination at 6. The Department also claims that “[d]uring her depositions and during the Court hea ring, [SKF Employ ee A] test ified tha t, during the Feb ruary

2003 ver ification, she re called b eing as ked to demonstrate the split between sales” but that the Commerce verifier s did not recall this offer. Remand Redetermination at 6-7. Defendant, however , continues to argue that “neither of the offers which [SKFEmploy

ee A] test ified she made at v erifica

tion would have bee

n suffic ient to verify the a

ccuracy of the quantity and value figures Sarma submitted to the Department.” Id. at 7. What the co urt sa id at t he hear ing was the fo llow ing: Court: [I]f any

of those are available and she can g et those materials and have them faxed to this Court, then I will accept that if they were capable of doing that, then if the y can do it now without notice and without preparation, they certainly c ould have done it then, and it would weigh heavily in this Court’s determination. Hr’g T r. at 11:8 -14. The

court expr

essly stated du ring the course o f the hea

ring tha t: Court: Taken together, what I have right now is the testimony of [SKF Employee A] that she made the offe r and [SKFEmploy

ee B] de monstrati ng that she has the

ability to obtain information by calling her office. Hr’g Tr. at 173:19-23. Thereaf ter, the court determined based upon the in-court hea ring that “the court was able to test the recollections of Commerce off icials as well as SKF officials . . . Commerce officials did not clearly recollect whether they

had specifically

requested source document ation. . . . SKF offi cials on the other h and testif ied that they

communic ated the ir willingness and ability to provide suc h source documentation.” SKF , 391 F Supp. 2d at 1332. The court did not at any

juncture, opine or rule on whether SKF/Sarma’s prof fered11

documentation would have supported the information originally reported by

SKF; it found that SKF/Sarma was able to phy sically provide the supporting documentation for the Department’s review upon request. Id. Once ag ain, the c ourt state d on the re cord of t he hear ing that : Court: No, no, no . Once a gain, Mr . Tosini, le

t me state my c oncern t

o yo u as I did in September and October. My concern is that somebody is lying to me. Not whether the quantity of

evidence is sufficient to meet the approval of the Department of Commerce, but rather–beca use that is discretionary on the part of the Department of Commerce, and I review it as to whether there is law or evidence to support it. I don’t rewe igh it. That is not what we are doing here

. * * * [I]t is about that specific factual question, did they make the offer to provide the information and was it turned down or not . . . . Hr’g Tr. at 228:5-24. Finally, the court summarized what transpired at the hearing on the record and clarified for the parties its basic conce rn: Court: [I]n the morning I asked [SKF Employee B ], because my conc ern, and I don’t know if y ou were told this, bu

t what my concer n is is that I

have squarely contrad ictory testimony

betwee n the ver ifiers a nd the var

ious Sarma repres entative s, be they

outside or

inside, a s to the ab ility

of Sarma to obtain informat ion and shi

p it up to SKF

so I sa id to [SKF Em

ployee B]. . . “[i]t was a couple of ye ars ag o, but cou

ld you call y

our offi ce rig

ht now and

have the m – talk to s ome bod y an d ha ve the m fa x in fo rma tio n to the Un ite d Stat es ?” * * * It se ems to me if

she could

do it today

, she cou ld have done it a lot e asier a couple of year s ago, and it bothers me intensely , because what y ou and your collea

gue are testifying is “The se individuals said we can’t do it.” Not that “We won’t” or not that anything; spec ifically, “We ca n’t do it,” and she is in here and is incapable of doing it, and ye

t she vigorously in her

deposition and in her affidavit statement said, “O h, I c ould do it,”

so I a sked her

to do it and , by

golly , she did it

. Hr’g Tr. at 254:17 - 256:6. Based upon this testimony and the court’s observations of the witnesse s’ demea

nor, it co ncluded t

hat “SKF ’s versions of this p articula r series of event s is12

strongly supporte d by the ability of SKF officials to provide the information from the subject period of review to the court on the day of the hearing.” SKF , 391 F. Supp. 2d at 1332-33. In no instance did the court attempt to reweigh or verif y the acc uracy of the substantive data included in the provided documents and expressly state d that it “held a hearing on those conflicting presentations, not to reweigh the evidence pr esented, but to examine the very existence of the facts as stated by

the parties.” Id. at 1329. Defendant’s attempt to mischaracterize, misstate, and misconstrue the court’s processes, Opinion, and Order is improper in these , and in the following
respec ts: (1) The court found in its August 24, 2005, opinion that Commerce’s decision was unsupported by substantial evidenc e. SKF et al. v. United States , Slip Op. 05-104, 391 F. Supp. 2d 1327 (CI

T 2005); see 19 U.S.C. §1 516a(b) (1)(B) (i); see also Universal Camera Corp. , 340 U.S. at 477 (stating that “substantial evidence is more than a “mer e scintilla.” It means such relevant evidence as a rea sonable mind might accept as adequate to support a c onclusion.”). Commerce

in its Reman

d Redete rmination argue s that the i ssue of w hether SK

F offer ed to provide supporting documentation at verification “was a ddressed fully on the r

ecord of the administrative review . . . .” Remand Redetermination at 2. By definition, the court’s finding that “Commerce’s announcement of its decision to use partial AFA for the first time in the Final Results, and to offer no opportunity for SKF to respond, correct, or clarify while finding SKF had not coope rated to the best o f its abilit

y, i s unsuppor

ted by substantia

l evidenc e and not i

n accordance with law,” means that it did not address this issue fully on the record of the administrative review. SKF , 391 F. Su pp. 2d at 1 336. Acc ordingl y, D efenda

nt is attem

pting to2 Defendant states that it “has not had the opportunity , as an agency, to address the

procee dings that h ave tra nspi red bef ore th e Cour t.” Re mand R edeter minat ion at 4. Alt hough counsel for the Department of Justice has represented the Defendant, United States, at all stages of this litigation and counsel for the Department of Commerce ha s appeared before this court at all hear ings, Com

merce s eems to be lieve tha t it was not

afford ed the opp ortunity

to voice i ts position to the court. At oral argument, the attorney for the U.S. Department of Justice stated that he is counsel for the United States and not counsel for the Depar tment of Commerce. As such, the attorney

for the Department of Justice argued that the De partment of Commerce had not had the opportunity to present its arg ument before the court until it filed its Remand Redetermination. Upon further questioning from the court, the a ttorney for the D epartment of Justice refused to address any discussions between it and Commerce citing attorney /client privileg e. Even t

hough th is court d isagre es with Commerce’ s position, this is not th e approp riate juncture to address this particular stance of the Depa rtment of Commerce. 13 rearg ue its prior position r

ather th an to simply

preser ve the iss ue for a ppeal. 2 (2) Def endant st ates tha t it disag rees wit h the “conclusion t

hat the e xtra-rec ord aff

idavits SKF submit

ted with its

brief to t he court was the f irst time SK

F had an opportuni

ty to obtain relief c oncerni

ng its fa ilures at verific ation.” Re

mand Rede

terminat ion at 5. The court, in its opinion, made no determination as to the timeliness of SKF’s arguments or the filing of the affidavits in its original Motion for Judgment Upon the Agency Record. See SKF , 391 F. Supp. 2d at 1333-39. The court originally found and continues to find that Commerce did not provide SKF adequate notice of its decision to use partial AFA in ca lculating SKF’s margin. See id. (3) Comme

rce ar gues tha t in its view , “it had c onsidere d the matte r fully and addr essed it during the normal course of its administrative proceeding .” Remand Redetermination at 6. Defendant is re-arguing

issues previously review ed and decided. See Paragraphs 1) and 2) infra

. (4) Defendant’s statement that “neither of the offers which [SKF Employe e A] testified she made at verification would have been suff icient to verify the a

ccuracy of the quantity and value figures Sarma submitted to the Department” is an a ttempt to reargue, without permission of the court, issues which were or which should have bee n briefed previously . Remand14

Redetermination at 7. (5) Defendant further arg ues that it is clear to “the Department that, if [SKF Employ ee A] made these offers, they were not remotely

sufficient to support the line items the Department selected in Sarma’s verification worksheet. Remand Rede termination at 12. As noted above, the question before the court was not the sufficiency of the underlying

data and whether or not the data pro vided by

SKF could

be audite d to the sa

tisfacti on of Comme

rce, but rather it was to determine whether or not offers wer e made to provide documentation to Commerce officials. SKF 391 F. Supp. 2d at 1329. This court relied on evidence presented to it at or in cour t during the Nove mber 19, 2 004, hea

ring an d was sati sfied tha

t offers were ma de by SKF offi cials to provide any r

equested documentation to Department officials. See id. ; see also Hr’g Tr. at 61:13- 64:16 (Test. of [SKF Employee A]); Hr’ g Tr. 92:21-94:5 (Test. of [SKF Employ ee A]); Hr’g Tr. 156:8-11 (Test. of [SKF Employee B ]); Hr’g Tr. 173:19-22 (statement of the court). De fendant’s

statemen t to the co ntrary

directly mischara cterizes the ruling

of this co urt. (6) Def endant a lleges that what it calls th e court’ s “verif

ication te st” was no t suffici ent to satisfy Commerce ’s audit p rocedur es. Reman

d Redete rmination at 15. De fendant

states tha t it “agrees with Mr. Schauer’ s testimony that one invoice is not sufficient to demonstrate tha t the totals presented in each line item were acc urate.” Remand Redetermination at 13. Commerce
may not in its Re

mand Rede

terminat ion rear gue wit hout the c ourt’s pe

rmission is sues pre

viously decided. See Paragraph 5 infra

. (7) Def endant sa ys t hat it “fi nds that th e fact that both the document

ation subm

itted in Court and [SKF Employee A]’s claimed off ers would have been insufficient calls into question Sarma’s preparedness, ability , and willingness to provide the requisite documentation during the15

February 2003 verification.” Remand Redetermination at 14. Defenda nt may appea

l this court’s rulings, but its position that it may ignore them is directly contrary to the concepts of judicial review articulated in Marbury v. Ma dison 5 U.S. 137, 175-76, 1 cranch 137, 68-70, 2 L. Ed. 60 (1803). See also United States v. Dalcour , 203 U.S. 408, 420, 27 S. Ct. 58, 59, 51 L. Ed. 248 (1906) (holding that the Circuit Court of Appeals shall exercise appellate jurisdiction to review final decisions in the District Courts, et cetera, in all cases other than those provide d for in the preced ing section, “unl ess other wise prov ided by law.”); Ex parte Watkins , 32 U.S. 568 (1833) (“[t]he jurisdiction of the court can never depend upon its de cision upon the mer its of a ca se brought before it; but upon its right to hear and dec ide it at all . . . it is the essential criterion of appellate jurisdiction that it revises and corrects the procee dings in a cause already instituted, and does not create that cause.” (empha sis in original) (citations omitted)). In this instance this court was satis fied and

continue s to remai

n satisfie d that [SKF Employ ee A]’s of fers we re suff icient to substantiate SKF’s claim that it had the ability to provide da ta requested by

Commerce. SKF , 391 F. Supp. 2d at 1333. Since the Court of International Tr ade has original jurisdiction over matters arising out of the administrative decisions of the Department of Commerc e, its decision that SKF offered to provide documentation can be cha llenged via appeal but not via rearg ument without permission of the court. See 19 U.S.C. § 1516a. (8) Defendant states that “[n]owhere on the recor d of the review or in the documentation present ed befor e the Cour

t was ther e any indication of prep aration by SK F or Sar ma personnel to provide such information during the Februar y 2003 verifica

tion.” Remand Redetermination at 15. SKF officials testified in open court on November 19, 2004, that they were prepared for verification as well as able and willing to provide any documentation requested by Commerce16

officials and the court found that there was suffic ient indication of that intent. See SKF , 391 F. Supp. 2d at

1332-33; see also Hr’g Tr. 53:10-18; 57:11-22; 73:2-13 (Testimony of [SKF Employee A]); Hr’g

Tr. 153:23-154:16 (Test. of [SKF Employee B]); Hr’g Tr. 210:4, 213:2-5; 218:9-14 (Test. of [SKF Employee C]). The c ourt is satisfied that SKF offered to provide supporting documentation to the Commerce verifiers. I f the Department disagrees with that determination it must appeal it or seek a rehearing . It may not reargue it without the court’s permission. V Conclusion For the r easons st ated abo ve, Def

endant’ s Remand Re determination is he reby affirme d in part and stricken in part. Paragra ph 1 at page 5 through para graph 1 at page 9, and pa

ragraph 1 at page 12 through parag

raph 2 at page 17, of Defe ndant’s Remand Redetermination are hereby stricken on the grounds that those portions misconstrue, misstate and/or mischaracter ize the court’s finding s.

__/s/ Evan J. Wallach___________

Evan J . Wal lach, Judge Date: September 1, 2006 New York, New York