Skf USA Inc. v. United States

Slip Op. 07-116

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________

:

SKF USA INC., :

:

Plaintiff, :

:

v. :

:

UNITED STATES OF AMERICA, :

UNITED STATES CUSTOMS AND BORDER :

PROTECTION, ROBERT C. BONNER :

(COMMISSIONER, UNITED STATES CUSTOMS : Court No. 05-00542

AND BORDER PROTECTION), UNITED STATES :

INTERNATIONAL TRADE COMMISSION, and :

STEPHEN KOPLAN (CHAIRMAN, UNITED :

STATES INTERNATIONAL TRADE COMMISSION), :

:

Defendants, :

:

and :

:

TIMKEN US CORPORATION, :

:

Defendant-Intervenor. :

________________________________________:

Steptoe & Johnson LLP (Herbert C. Shelley, Alice A. Kipel,

Susan R. Gihring and William G. Isasi) for SKF USA Inc., Plaintiff.

Peter D. Keisler, Assistant Attorney General, Jeanne E.

Davidson, Director, Patricia M. McCarthy, Assistant Director,

Commercial Litigation Branch, Civil Division, United States

Department of Justice (David S. Silverbrand); of counsel: Charles

Steuart, United States Bureau of Customs and Border Protection, for

the United States, Defendant.

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant

General Counsel, Office of the General Counsel, Unites States

International Trade Commission (David A.J. Goldfine) for the United

States International Trade Commission and Stephen Koplan, Chairman,

Defendant.

Court No. 05-00542 Page 2

Stewart and Stewart (Terence P. Stewart, Amy S. Dwyer and J.

Daniel Stirk), for Timken US Corporation, Defendant-Intervenor.

Dated: July 26, 2007

OPINION

I. Jurisdiction

The Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1581(i) (2000).

II. Standard of Review

As set out in the Administrative Procedure Act (“APA”)1 this

Court “will set aside Customs’ denial of offset distribution only

if it is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Dixon Ticonderoga Co. v.

United States, 486 F.3d 1353, 1354 (Fed. Cir. 2006)(quoting Candle

Corp. of America v. U.S. Int’l Trade Comm’n, 374 F.3d 1087, 1091

(Fed. Cir. 2004)(citing 5 U.S.C. § 706 (2000))).

III. Background

On September 12, 2006, this Court issued an order directing

the United States International Trade Commission (“ITC” or

1

The provisions of subchapter II and chapter seven of

title five of the United States Code were originally enacted on

June 11, 1946, and are popularly known as the Administrative

Procedure Act. It has been amended since. See 5 U.S.C. §§ 551-

559, 701-706.

Court No. 05-00542 Page 3

“Commission”) and the Bureau of Customs and Border Protection

(“Customs”)2, to “re-examine their decision to deny SKF [Continued

Dumping and Subsidy Offset Act of 2000] disbursements for the 2005

fiscal year in accordance with” this Court’s decision in SKF USA

Inc. v. United States (“SKF USA”), ___ CIT ___, 451 F. Supp. 2d

1355 (2006). On December 8, 2006, Customs filed its remand

determination. See Reconsideration of the Fiscal Year 2005 CDSOA

Certification of SKF USA, Inc. (“Customs’ Reconsideration”),

December 8, 2006.3 On December 11, 2006, the ITC filed its remand

determination. See Letter from Patrick V. Gallagher, Jr., ITC, to

the Honorable Tina Potuto Kimble, Clerk of the Court (Dec. 11,

2006) (“ITC Remand Determination”). On January 10, 2007, SKF USA

Inc. (“SKF” or “Plaintiff”) and Defendant-Intervenor, Timken U.S.

Corp. (“Timken”) filed their comments upon the remand results. See

Pl.’s Comments on Remand Determinations Issued By Def. United

States Customs and Border Protection and Defendant United States

2

The Bureau of Customs and Border Protection was renamed

United States Customs and Border Protection, effective March 31,

2007. See Name Change From the Bureau of Immigration and Customs

Enforcement to U.S. Immigration and Customs Enforcement, and the

Bureau of Customs and Border Protection to U.S. Customs and Border

Protection, 72 Fed. Reg. 20,131 (April 23, 2007).

3

Though the ITC issued its remand in the form of a letter

to the Honorable Tina Potuto Kimble, Clerk of the Court, CIT, on

December 11, 2006, the ITC did previously advise Customs of the

results. See Custom’s Remand Determination at 1 (“The ITC has

informed [Customs] that SKF has been added to its list of potential

affected producers for Bearings from Japan . . . for fiscal year

2005.”).

Court No. 05-00542 Page 4

International Trade Commission (“SKF Comm.”) at 10; Defendant-

Intervenor’s Comments on the Remand Results (“Timken Comm.”) at 4.

In its remand, the ITC determined that SKF “did participate in

the original investigation by questionnaire response and the

company is eligible, using the definitions announced in [SKF USA],

to be placed on the list prepared by the [ITC] under the Byrd

Amendment for the order covering ball bearings from Japan.” ITC

Remand Determination at 2. As such, the ITC “revised the Byrd

Amendment list for the antidumping duty order on ball bearings from

Japan to include” SKF. Id. at 2.

In its remand, Customs stated:

In its July 13, 2005, certification, SKF sought a

disbursement in the amount of its total qualifying

expenditures, $115,033,000.00. Including SKF’s

certification, the total qualifying expenditures

submitted by affected domestic producers for Commerce

Case No. A-588-8044 would have been $3,873,340,322.67.

A total of $47,810,802.17 was available for distribution

to affected domestic producers in this Commerce Case. In

accordance with 19 U.S.C. § 1675c(d)(3) and 19 C.F.R. §

159.64(c)(2), affected domestic producers would only be

entitled to receive a pro rata share of the available

4

Commerce determined that there were sales at less-than-

fair value resulting in an antidumping duty order. See Antidumping

Duty Orders for Ball Bearings, Cylindrical Roller Bearings, and

Spherical Plain Bearings, and Parts Thereof From Japan, Inv. No. A-

588-804, 54 Fed. Reg. 20,904 (Dep’t Commerce May 15, 1989).

Following the enactment of the Continued Dumping and Subsidy Offset

Act of 2000 (“CDSOA”), the ITC provided Customs with a list of

entities (i.e. manufacturer, producer, farmer, rancher, or worker

representative) eligible as “affected domestic producers,” on which

SKF was not originally included. See SKF USA, ___ CIT at __, 451

F. Supp. 2d at 1358.

Court No. 05-00542 Page 5

funds because the total qualifying expenditures certified

exceeds the amount available for distribution. SKF’s

certified qualifying expenditures represent 2.9699% of

the total qualifying expenditures for this Commerce Case

No. A-588-804.

If, after all opportunities for rehearing and/or appeal

have been exhausted, [SKF USA] is the final court

decision upon this action, SKF would receive a

distribution for up to $1,419,933.01 in CDSOA funds for

fiscal year 2005, to the extent these funds are either

recoverable from the affected domestic producers who

initially received them or are available . . ..

Custom’s Remand Determination at 1-2.

On January 10, 2007, SKF filed comments to both the ITC Remand

Determination and Customs’ Reconsideration with this Court. See

SKF Comm. at 10. Comments were also submitted by Timken on the

same day. See Timken Comm. at 4. Rebuttal comments were submitted

by the ITC, Customs and Timken on January 30, 2007. See Def. U.S.

International Trade Commission’s Response to Pl.’s Comments on the

Commission’s Remand Determination (“ITC’s Reb.”) at 1-9; Response

to Comments Upon Remand Results (“Customs’ Reb.”) at 16; Rebuttal

Comments of Timken US Corporation to SKF USA’s Comments on the

Remand Results (“Timken’s Reb.”) at 15.

IV. Discussion

A. Contentions of the Parties

1. SKF’s Contentions

SKF agreed with the final results of both Customs’

Reconsideration and the ITC Remand Determination (collectively, the

Court No. 05-00542 Page 6

“Remand Determinations”) to the extent that both Customs and the

ITC (collectively, the “Defendants”) now find that SKF is eligible

to be placed on the list of “affected domestic producers” and is as

such eligible to receive distributions under 19 U.S.C. § 1675c.

See Pl.’s Comm. at 2. SKF, however, objects to the ITC having

“only revised the CDSOA ‘affected domestic producer’ list to

include [SKF] for the antidumping duty order on ball bearings from

Japan.” Id. at 3.

SKF stresses that “the investigation in which the [ITC] noted

that [SKF] participated was not limited to Japan, but covered ball

bearings from nine countries.” Id. at 3. SKF further contends

that this Court’s decision in SKF “with regard to the ITC was

limited only as to fiscal year 2005. It was not limited as to

country.” Id. at 4. Furthermore, SKF contends that a

determination that SKF is eligible for disbursements under all

outstanding ball bearing orders would be consistent with SKF’s last

request for relief, which requested that this Court:

issue an order severing from the antidumping law, those

provisions of 19 U.S.C. 1675c . . . that limit

eligibility for disbursements to only those domestic

producers that support antidumping petitions and

declaring those provisions unconstitutional, null and

void, and issue an order declaring that [SKF] is entitled

to be considered for distribution of a proportionate

share of CDSOA disbursements for fiscal year 2005.

Id. at 5 (citing to Am. Complaint at 17, ¶ 4).

Court No. 05-00542 Page 7

SKF further argues that as Customs relied solely on SKF’s July

13, 2005 certification, Customs thereby failed to consider the

amended certification for Japan, as well as other certifications.

See id. at 6. SKF specifically raises Customs’ refusal to consider

an amended certification for disbursements under the antidumping

order against ball bearings from Japan, as well as certifications

for seven other countries, which SKF filed with Customs on

September 28, 2006. Id. at 6. SKF contends that this “refusal to

use the amended certification to calculate [SKF’s] proportional

share of disbursements is unsupportable.” Id. at 6.

2. ITC’s Contentions

The ITC contends that when “SKF filed its appeal in October

2005, [SKF] made clear that it was challenging only the two

agency’s actions relating to its requests for Byrd Amendment

distributions for the Japanese order.” ITC Reb. at 2; (citing to

Complaint, ¶¶ 7, 15). The ITC stresses that SKF’s claim “reflects

a not particularly subtle attempt to broaden the scope of [SKF’s]

appeal and the nature of the Court’s decision on this matter.” Id.

at 4.

The ITC stresses that the scope of the Court’s review in the

case at bar “‘is confined to the record developed before the

agency[.]’” Id. at 5 (citing to Ammex, Inc. v. United States, __

Court No. 05-00542 Page 8

CIT __, 341 F. Supp.2d 1308, 1311 (2004)). Thus, the ITC argues,

“the decisions subject to this appeal are only the [ITC’s] and

Customs’ denial of [SKF’s] requests to be declared eligible for

Byrd distributions relating to the Japanese ball bearings order for

fiscal year 2005.” Id. at 5. The ITC further stresses that “at no

point in [the] administrative process did [SKF] even suggest that

the [ITC] or Customs had been mistaken in interpreting their

requests as relating only to the Japanese ball bearings order.”

Id. at 6. Additionally, the ITC argues that SKF had previously

made it clear that it was its intent to challenge the actions of

Customs and the ITC in denying its request under the Japanese ball

bearing order, and that SKF only challenged the actions of the

Defendants in connection with the disbursement of funds collected

under an antidumping order on ball bearings from Japan. See id. at

6 (citing to Complaint at ¶ 7). The ITC concludes by contending

that this Court’s opinion in SKF USA did not indicate that the ITC

or Customs “should go beyond the scope of their underlying

determinations and this appeal by making a new set of decisions as

to whether [SKF] was entitled to receive Byrd distributions under

any order than the order covering Japan.” Id. at 7.

3. Timken’s Contentions

Timken initially disagreed with the decision in SKF USA, in

which this Court declared that the Continued Dumping and Subsidy

Court No. 05-00542 Page 9

Offset Act of 2000 (“CDSOA”) violates the Equal Protection Clause.

See Timken Br. at 1-2. Though “Timken disagrees with the Court’s

conclusions and reserves its right to appeal, Timken believes the

determinations of the ITC and [Customs] are consistent with the

opinion of the Court[.]” Timken Br. at 3. Timken, however,

contends that Customs has made a ministerial error by certifying

SKF’s qualifying expenditures to 2.9699%, thereby entitling SKF to

receive $1,419,933.01 of the $47,810,802.17 available for

distribution. See id. at 3. Timken argues that Customs had

previously rounded the allocation percentage to the billionth

decimal place, and not the ten thousandth, as is indicated above.

See id. (citing to FY 2005 CDSOA Annual Disbursement Report).

Timken surmises that SKF’s “correct allocation percentage should be

2.969865553% and the distribution [SKF] would potentially receive

from the total available, $47,810,802.17, would be up to

$1,419,916.54.” Id.

Additionally, Timken contends that SKF’s comments on the

remand determinations are not responsive to the remand results and

should thus be rejected. See Timken’s Reb. at 2. Timken states

that an agency’s “determination ‘will be upheld as long as the

Court can reasonably discern how the agency arrived at the

decision’ as long as it is ‘in accordance with law.’” Id. at 2;

(citing to Cathedral Candle Co. v. United States, 27 CIT __, __,

Court No. 05-00542 Page 10

285 F. Supp.2d 1371, 1375 (2003)).

Timken contends that both Customs and the ITC correctly

limited their determinations on remand to the question of SKF

eligibility for CDSOA distribution with respect to the antidumping

order on ball bearings from Japan alone, as SKF only sought

eligibility for and distribution to the antidumping duty order on

ball bearings from Japan. Id. at 2-3. Timken asserts that in the

case at bar judicial review of agency determinations must be based

on all the documents before the agency at the time of

determination. See id. at 3. Timken further asserts that the full

record of documents used by both Customs and the ITC indicates that

SKF “referred only to the Japan ball bearings order in requesting

agency action.” Id. at 4. As such, Timken assert that both the

ITC and Customs remand determinations were consistent with this

Court’s remand instructions from SKF USA, 30 CIT at __, 451 F.

Supp. 2d at 1367. See id. at 6.

Timken further argues that even if SKF’s “new certification

covering seven additional orders and qualifying expenditures of

$8,164,858,000 could have been considered on remand [Customs] would

not have been required to accept certifications filed over a year

too late on September 28, 2006, contrary to the statutory and

regulatory deadlines governing FY2005 certifications and

distributions.” Id. at 8. Timken stresses that “in order to

Court No. 05-00542 Page 11

receive CDSOA distributions for FY2005, Custom’s regulations

required eligible affected domestic producers to file

certifications . . . by August 1, 2005.” Id. at 9 (citing to 19

C.F.R. § 159.63(a); 70 Fed. Reg. 31,566 (June 1, 2005)). Timken

concludes by contending that in SKF USA this Court stated that it

entrusted Customs to determine how SKF receives its pro rata share

of the FY2005 CDSOA disbursements, and Customs’ action since the

decision have complied with this Court’s instructions. See id. at

15 (citing to SKF USA, ___ CIT at __, 451 F. Supp. 2d at 1366).

4. Customs’ Contentions

Customs begins its contentions by agreeing with Timken’s

argument that SKF’s CDSOA distribution was miscalculated through a

ministerial error. See Customs’ Reb. at 3. Customs asserts that

it initially erred in calculating the allotted SKF distribution at

2.9699%, as opposed to the proper 2.969865553% allocation. See id.

Accordingly, Customs requests that this Court “grant a remand to

Customs for the limited purpose of correcting a ministerial error

in its calculation of the CDSOA distribution SKF will be entitled

to pursuant to [SKF USA], if [SKF USA] remains the final Court

decision after all appeals have been exhausted.” See id. at 4.

Despite the above request for recalculation, Customs asserts

that both Customs and the ITC complied with SKF USA when they

issued their remand results. See id. Customs argues that when

Court No. 05-00542 Page 12

reviewing whether Customs’ or the ITC’s interpretation and

application of the CDSOA are in accordance with law, courts apply

the standard of review set forth in the APA. See id. at 6.

Customs further argues that in the APA context:

an action must meet two requirements to be “final”

pursuant to 5 U.S.C. § 704: (1) “ the action must mark

the ‘consummation’ of the agency’s decision making

process,” Bennet v. Spear, 520 U.S. 154, 177-78 (1997);

and (2) “the action must be one by which ‘rights or

obligations have been determined,’ or from which ‘legal

consequences will flow.’” Id. at 178. Because SKF only

challenged the ITC’s administrative determination not to

add SKF to the ADP list with respect to the ball bearings

from Japan antidumping investigation, the ITC has not

taken any administrative action with respect to other

antidumping or countervailing duty orders. Thus, there

is no other action which is subject to review because

neither of the requirements established in the case law

are met. See Lujan v. National Wildlife Federation, 497

U.S. 871, 882 (1990).

Customs’ Reb. at 7-8. Customs asserts that in the case at bar

there can be no “consummation” of the decision making process as

Customs has not yet made a decision upon whether to apply its

overpayment provision and as there is no decision for this Court to

review. See id. at 14. Customs asserts that a decision not to

take enforcement action is immune from judicial review pursuant to

5 U.S.C. § 701(a)(2). See id.

Customs further contends that it complied with this Court’s

order in SKF USA, and did not err in neglecting to consider SKF’s

September 28, 2006 submission to the ITC in determining SKF’s

entitlement to CDSOA distributions as SKF was untimely in filing

Court No. 05-00542 Page 13

the materials. See id. at 9-11. Customs asserts that “all CDSOA

certifications were due to be filed within 60 days of Customs’ July

3, 2005 publication of Distribution of Continued Dumping and

Subsidy Offset to Affected Domestic Producers, 67 Fed. Reg.

44,722.” Id. at 10-11. Customs then further asserts that if SKF

believed its certification contained incorrect figures, it had ten

days after Customs issued its July 15, 2005 notification denying

SKF certification within which to correct that certification. Id.

at 11 (citing to 19 C.F.R. § 159.63(c)). Based on all the above

arguments, Customs concludes that this Court should maintain its

ruling entrusting Customs “to determine how to ensure SKF receives

its pro rata share of the 2005 CDSOA disbursements as it deems fit,

understanding that Customs has regulatory authority at its disposal

to redistribute the disbursed funds, such as 19 C.F.R. §

159.64(b)(3).” Id. at 15 (citing to SKF USA, ___ CIT at __, 451 F.

Supp. 2d at 1366).

B. Analysis

1. Customs’ Calculation Error in Calculating the

Offset Distribution Amount Is De Minimis in Nature

and Thus Does Not Warrant a Remand.

As stated supra, Timken contends that SKF’s “correct

allocation percentage should be 2.969865553% and the distribution

[SKF] would potentially receive from the total available,

$47,810,802.17, would be up to $1,419,916.54.” Timken’s Comm. at

Court No. 05-00542 Page 14

3. The Government has confirmed that “Customs’ remand

determination contains a ministerial error in the calculation of

the CDSOA distribution SKF would be entitled to receive pursuant to

[SKF USA].” Customs’ Reb. at 3. The Government further requests

that “the Court grant a remand to Customs for the limited purpose

of correcting a ministerial error in its calculation of the CDSOA

distribution SKF will be entitled to pursuant to [SKF USA.]” Id.

at 4.

The remand, however, if granted, would lead to an adjustment

of a mere $16.47. Despite the Government’s admission of an

administrative error on the part of Customs, this Court finds that

the error was de minimis in nature and that a remand would be a

waste of time, effort, and taxpayers’ funds.

2. Customs’ and the ITC’s Remand Determinations Fully

Comply with SKF USA.

In an APA action, such as the case at bar, courts “shall

compel agency action” which is “unlawfully withheld or unreasonably

delayed.” 5 U.S.C. § 706(1)(2000). “[A]gency action includes the

whole or part of an agency rule, order, license, sanction, relief,

or the equivalent or denial thereof, or failure to act.” 5 U.S.C.

551(13)(2000). This Court only possesses jurisdiction to entertain

challenges to administrative actions. See 28 U.S.C. 1581(i)(2000).

In SKF USA, this Court remanded the present matter “to the ITC and

Court No. 05-00542 Page 15

Customs to review their decisions denying SKF CDSOA

disbursements[.]” SKF USA, __ CIT at __, 451 F. Supp. 2d at 1367.

In SKF USA, SKF requested that this Court “issue a permanent

injunction enjoining the Government from making any present or

future disbursements pursuant to the CDSOA with respect to duties

collected from all antidumping orders covering AFBs5, or in the

alternative, just ball bearings from Japan.” SKF USA, __ CIT at

__, 451 F. Supp. 2d at 1363 (emphasis added). As such, SKF further

requested that this Court “order Customs to require repayment of

all CDSOA funds disbursed with respect to all antidumping orders

covering AFBs, or in the alternative, just ball bearings from

Japan[.]” Id. (emphasis added).

Furthermore, in a letter dated July 13, 2005, SKF’s attorneys

requested that Customs distribute CDSOA offsets for Fiscal Year

2005 for offsets “resulting from the antidumping order on ball

bearings from Japan.” Letter to the Assistant Commissioner of

Customs (July 13, 2005). SKF’s Counsel therein attached a

Continued Dumping and Subsidy Offset Certification, which clearly

listed the case name as “Ball Bearings from Japan.” Id. SKF’s

Complaint of October 3, 2005 makes specific references to

5

AFBs are defined as “antifriction bearings, other than

tapered roller bearings and parts thereof” in SKF USA, __ CIT at

__, 451 F. Supp. 2d at 1357.

Court No. 05-00542 Page 16

disbursements “pursuant to the CDSOA of assessed fiscal year 2005

funds pertaining to ball bearings from Japan.” Complaint at p. 16.

SKF additionally raises its “request for disbursement of funds and

Customs’ disbursement of funds collected under the antidumping

order on ball bearings from Japan before December 1, 2005[.]”

Complaint ¶ 15. These assertions were later put forth in SKF’s

amended complaint of January 3, 2006, where SKF states that it

challenges the actions of both the ITC and Customs, pursuant to 19

U.S.C. 1675c, “in connection with the disbursements of funds

collected under an antidumping order on ball bearings from Japan.”

Amended Complaint, ¶ 7. It is thereby clear to this Court that SKF

was initially seeking repayment of all CDSOA funds disbursed with

respect to all antidumping orders covering AFBs, or in the

alternative, just ball bearings from Japan, and only from Japan.

As a result of this Court’s decision in SKF USA, both the ITC

and Customs filed their remand determinations. See Customs’

Reconsideration; ITC Remand Determination. As SKF only challenged

the ITC’s decision not to add SKF to the list of affected domestic

producers list with respect to the ball bearings from Japan

antidumping investigation, the ITC did not take any administrative

action with respect to other antidumping or countervailing duty

orders. See ITC Remand Determination. As such, Customs’ remand

determination dealt solely with the antidumping duty order on ball

Court No. 05-00542 Page 17

bearings from Japan as well. See Customs’ Reconsideration. By

solely referencing the antidumping duty order on ball bearings from

Japan both the ITC and Customs complied with this Court’s decision

in SKF USA.

As stated supra, under 28 U.S.C. § 1581(i) this Court only

possesses jurisdiction to entertain challenges to administrative

actions. This Court remanded “this matter to the ITC and Customs

to review their decision denying SKF CDSOA disbursements in

accordance with” the SKF USA opinion. SKF USA, __ CIT at __, 451

F. Supp. 2d at 1367 (emphasis added). Both the ITC and Customs

properly kept their remands within the scope of “the antidumping

order on ball bearings from Japan.” Letter to the Assistant

Commissioner of Customs (July 13, 2005). Furthermore, this Court

has stated that it “entrusts Customs to determine how to ensure SKF

receives its pro rata share of the 2005 CDSOA disbursements as it

deems fit[.]” SKF USA, __ CIT at __, 451 F. Supp. 2d at 1366.

Nothing in Customs’ remand determination makes the Court regret

such a lawful entrustment. See SKF USA, __ CIT at __, 451 F. Supp.

2d at 1366 (citing to 19 C.F.R. § 159.64(b)(3)).

Court No. 05-00542 Page 18

3. Customs Did Not Err in Refusing to Consider SKF’s

filings of September 28, 2006.

As stated supra, SKF claims that Customs erred in refusing to

consider an amended filing made on September 28, 2006 for

disbursements under the antidumping order against ball bearing from

Japan, which also included certifications for seven other

countries. Pl.’s Comm. at 6.

Pursuant to statute, Customs must publish a notice of intent

to distribute (“Notice of Intent to Distribute”) at least 30 days

before making CDSOA distributions. See 19 U.S.C. §

1675c(d)(2)(2000). After publication of the Notice of Intent to

Distribute, Customs’ regulations state that claimants, such as SKF,

have 60 days in which to file certification to obtain a CDSOA

distribution. See 19 C.F.R. § 159.63(a). The timely filing of

certifications is important as the “distribution of funds from

duties assessed each fiscal year must be distributed not later than

60 days after the end of that fiscal year.” Cathedral Candle Co.

V. United States International Trade Comm’n, 400 F.3d 1352, 1358

(quoting 19 U.S.C. § 1675c(c)).

As per the above analysis, CDSOA certifications in the case at

bar were due to be filed within 60 days of Customs’ July 3, 2005

publication of Distribution of Continued Dumping and Subsidy Offset

to Affected Domestic Producers, 67 Fed. Reg. 44,722. As September

Court No. 05-00542 Page 19

28, 2006 is more than 60 days after July 3, 2005, SKF failed to

timely file its amended certification, and Customs thereby did not

err in its refusal to consider said documentation.

C. Conclusion

Upon review of the record and the arguments presented by the

parties on remand, the Remand Determinations are not arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law.

/s/ Nicholas Tsoucalas

NICHOLAS TSOUCALAS

SENIOR JUDGE

Dated: July 26, 2007

New York, New York

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________

:

SKF USA INC., :

:

Plaintiff, :

:

v. :

:

UNITED STATES OF AMERICA, :

UNITED STATES CUSTOMS AND BORDER :

PROTECTION, ROBERT C. BONNER :

(COMMISSIONER, UNITED STATES CUSTOMS : Court No. 05-00542

AND BORDER PROTECTION), UNITED STATES :

INTERNATIONAL TRADE COMMISSION, and :

STEPHEN KOPLAN (CHAIRMAN, UNITED :

STATES INTERNATIONAL TRADE COMMISSION), :

:

Defendants, :

:

and :

:

TIMKEN US CORPORATION, :

:

Defendant-Intervenor. :

________________________________________:

JUDGMENT

This Court, having received and reviewed the Bureau of Customs

and Border Protection’s (“Customs”) Reconsideration of the Fiscal

Year 2005 CDSOA Certification of SKF USA, Inc. (“Customs’

Reconsideration”) filed on December 8, 2006, the remand

determination filed by the United States International Trade

Commission (“ITC”) on December 11, 2006 (“ITC Remand

Determination”)(Customs’ Reconsideration and the ITC Remand

Determination, collectively, the “Remand Determinations”), comments

and rebuttal comments of SKF USA Inc., Timken US Corporation,

Customs and the ITC, and all other papers filed herein, holds that

both Customs and the ITC duly complied with this Court’s remand

order in SKF USA Inc. v. United States, ___ CIT ___, 451 F. Supp.

2d 1355 (2006), and it is hereby

ORDERED that the Remand Determinations are affirmed in their

entirety; and it is further

ORDERED that since all other issues have been decided, this

case is dismissed.

/s/ Nicholas Tsoucalas

NICHOLAS TSOUCALAS

SENIOR JUDGE

Dated: July 26, 2007

New York, New York