BMW of North America LLC v. United States, No. 18-1109 (Fed. Cir. 2019)
Annotate this CaseIn 2011, the Commerce Department posted notice permitting interested parties to request administrative review of duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom. BMW requested administrative review of the duties on its imports from the U.K. The duty orders on ball bearings and parts thereof from Japan and the United Kingdom, first imposed in 1989, were undergoing sunset review by Commerce and the International Trade Commission (ITC), which initially decided against revocation. The ITC later determined that revocation would not likely lead to the continuation or recurrence of material injury to a U.S. industry; the Court of International Trade affirmed. Commerce published a notice that it was revoking those duty orders and discontinuing unfinished administrative reviews. In 2013, the Federal Circuit reversed. The Trade Court reinstated the ITC’s affirmative material injury determination. Commerce e-mailed counsel for all parties that had previously requested administrative review, stating only that it was“sending out a quantity-and-value-questionnaire. Commerce published notice that it was resuming the administrative reviews and noting the deadline for withdrawing requests for review. Counsel for BMW did not complete the questionnaire, withdraw from review, or otherwise respond. Finding that BMW “failed to cooperate,” Commerce employed an adverse inference in selecting a 126.44% rate (19 U.S.C. 1677e(b)) against BMW. The Federal Circuit vacated. Commerce did not set forth its reasoning in sufficient detail to allow review of whether the rate was unduly punitive.
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