12 F.Supp.2d 445 (CIT. 1998), 97-01-00023, Peer Bearing Co. v. United States

Docket Nº:Court No. 97-01-00023.
Citation:12 F.Supp.2d 445
Party Name:PEER BEARING COMPANY, Plaintiff and Defendant-Intervenor, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor and Plaintiff, L & S Bearing Company, Luoyang Bearing Factory, Shanghai General Bearing Company, Ltd., Defendant-Intervenors. Slip Op. 98-70.
Case Date:May 27, 1998
Court:Court of International Trade
 
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Page 445

12 F.Supp.2d 445 (CIT. 1998)

PEER BEARING COMPANY, Plaintiff and Defendant-Intervenor,

v.

UNITED STATES, Defendant,

The Timken Company, Defendant-Intervenor and Plaintiff,

L & S Bearing Company, Luoyang Bearing Factory, Shanghai General Bearing Company, Ltd., Defendant-Intervenors.

Slip Op. 98-70.

Court No. 97-01-00023.

United States Court of International Trade.

May 27, 1998

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Arent Fox Kintner Plotkin & Kahn (John M. Gurley andPeter L. Sultan), for Peer Bearing Company.

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Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr. and Charles A. St. Charles), for Timken Company.

Frank W. Hunger, Asst. Atty. General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Velta A. Melnbrencis, Asst. Director); of counsel: Rina Goldenberg, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant.

Cohen Darnell & Cohen (Mark A. Cohen), for L & S Bearing Company.

Graham & James LLP (Lawrence R. Walders and Andrea Fekkes Dynes), for Luoyang Bearing Factory.

Reed Smith Shaw & McClay (James K. Kearney and Priya Alagiri), for Shanghai General Bearing Company, Ltd.

[ 22 C.I.T. 473] OPINION

TSOUCALAS, Senior Judge.

Plaintiffs Peer Bearing Company ("Peer") and the Timken Company ("Timken") have filed separate motions for judgment on the agency record pursuant to Rule 56.2 of this Court contesting various aspects of the final results of administrative reviews issued by Commerce regarding tapered roller bearings ("TRBs") imported from the People's Republic of China ("PRC").

Background

This case deals with shipments of TRBs and parts thereof, finished and unfinished, from the People's Republic of China (PRC). On August 25, 1995, the Department of Commerce, International Trade Administration ("Commerce"), published the preliminary results of its administrative reviews of the antidumping duty order on TRBs from the PRC. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Reviews (" Preliminary Results "), 60 Fed.Reg. 44,302.

The administrative determination under review is Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of Antidumping Duty Administrative Reviews (" Final Results "), 61 Fed.Reg. 65,527 (Dec. 13, 1996). The determination covers three periods of review ("PORs"): June 1, 1990 through May 31, 1991 (the fourth POR); June 1, 1991 through May 31, 1992 (the fifth POR); and June 1, 1992 through May 31, 1993 (the sixth POR). 1 The Court granted L & S Bearing Company's Motion to Intervene on March 17, 1997, after which L & S Bearing Company has not filed any additional papers. Oral argument was held at the Court on February 20, 1998.

Discussion

This Court has jurisdiction in this case pursuant to 19 U.S.C. § 1516a(a)(2) and 28 U.S.C. § 1581(c) (1994).

The Court must uphold Commerce's final determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1994). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 [22 C.I.T. 474] CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir. 1990).

A. Peer Bearing's Issues

1. Selection of Partial BIA

Peer challenges only one issue pertaining to the Final Results. Specifically, Peer contests Commerce's choice of the best information available ("BIA") in its calculation of

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foreign market value ("FMV") for certain transactions in the fifth and sixth reviews.

Peer's related Hong Kong affiliate, Chin Jun Industrial Ltd., 2 purchased TRBs from seven PRC suppliers and sold them to Peer, which then resold them to companies in the United States. Commerce requested that the seven PRC suppliers provide factors of production ("FOP") information for Commerce to use in calculating FMV. Five of the seven PRC suppliers did not provide the requested information. Final Results, 61 Fed.Reg. at 65,538, 65,542-43. Consequently, Commerce used BIA to determine the dumping margin for those U.S. sales of TRBs by the five non-responding PRC suppliers for the fifth and sixth review periods. Id. Commerce selected as BIA the 8.83% dumping margin that Commerce had assigned to Peer during the fourth POR. 3 Peer does not dispute that Commerce was required by statute to use BIA in making its determination. Rather, Peer challenges Commerce's selection of what constitutes partial BIA for the fifth and sixth reviews, arguing that the 8.83% rate Commerce used is punitive and improper. In addition, Peer asserts that, in light of its cooperation with Commerce and its inability to obtain the information Commerce requested from the non-responsive PRC suppliers, Commerce should have used a "neutral" methodology to determine the BIA rate, such as a weighted average of previous antidumping margins found for Peer, or actual dumping margins Commerce determined using the FOP information Peer was able to provide. Peer's Mem. Supp. Mot. J. Agency R. at 4-10.

Commerce responds that the 8.83% BIA rate was not punitive. Commerce asserts that the rate, which was the highest rate applicable to Peer in a previous review, was the most probative evidence of the current dumping margin. If it were not the most probative information, Commerce argues, Peer would have submitted information showing the margin to be less. Commerce's Partial Opp'n to Mots. J. Agency R. at 3.

Timken agrees with Commerce that the 8.83% BIA rate was not punitive and interprets Commerce's choice of BIA as the application of a "second-tier BIA rate" under Commerce's two-tier BIA methodology. Timken argues that this second-tier BIA rate is appropriate, even when factoring in Peer's cooperation. Timken's Opp'n to Mot. J. Agency R. at 2-5.

[22 C.I.T. 475] The statute expressly requires Commerce to use BIA when faced with a party that is unwilling or unable to participate in the administrative review proceedings. 19 U.S.C. § 1677e(c) (1988). However, because Congress did not define what constitutes BIA, Commerce's construction of the statute must be accorded considerable deference. See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Commerce's selection of BIA is based on its interpretation of the governing statutory authority and regulatory provisions. The Court, therefore, must consider the scope of the statutory authority conferred upon Commerce regarding the use of BIA, Commerce's implementation of that authority through its regulations and Commerce's execution of its regulations through its articulated BIA policy. Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1189 (Fed.Cir. 1993).

BIA "is not necessarily the most accurate information; rather, it is information that has become usable due to a respondent's failure to provide accurate information." Usinor Sacilor v. United States, 18 CIT 1155, 1161, 872 F.Supp. 1000, 1006 (1994); Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 13, 28, 704 F.Supp. 1114, 1126 (1989), aff'd, 901 F.2d 1089 (Fed.Cir. 1990), cert. denied, Floramerica, S.A. v. United States, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990).

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The application of BIA may be "total" or "partial." Commerce applies total BIA when a party has failed to submit information in a timely manner, or when part of the submitted data is sufficiently flawed, rendering the entire response unreliable and unusable. See Ad Hoc Comm. of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 18 CIT 906, 915 n. 21, 865 F.Supp. 857, 865 n. 21 (1994), aff'd, 68 F.3d 487, 1995 WL 596834 (Fed.Cir. 1995); National Steel Corp. v. United States, 18 CIT 1126, 1131, 870 F.Supp. 1130, 1135 (1994). When Commerce resorts to total BIA, Commerce implements a "two-tier BIA methodology," which factors in a party's cooperation in the BIA determination. 4 Commerce uses partial BIA when only part of the submitted information is deficient, but is still reliable in most other respects. See Ad Hoc Comm., 18 CIT at 915 n. 21, 865 F.Supp. at 865 n. 21. The adversity of the information used as partial BIA depends on the level of sufficiency of the information provided. National Steel, 18 CIT at 1131, 870 F.Supp. at 1135.

Although Commerce expressly recognized Peer's cooperation in the Final Results, Commerce does not usually consider a party's level of cooperation when applying partial BIA. See, e.g., AK Steel Corp. v. [22 C.I.T. 476] United States, 21 CIT 1265, ----, 988 F.Supp. 594, 607 n. 10 (1997) (according to Commerce's usual practice, a party's cooperation is not a factor Commerce considers in applying partial BIA); see also National Steel, 18 CIT at 1131, 870 F.Supp. at 1135 (Commerce does not consider the respondent's level of cooperation when applying partial BIA and may apply the highest non-abberant margin despite respondent's cooperation). Therefore, the quality and completeness of the data, and not Peer's cooperation, are the determining factors in establishing the appropriateness of the partial BIA rate. National Steel, 18 CIT at 1132, 870 F.Supp. at 1136.

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