996 F.2d 1185 (Fed. Cir. 1993), 93-1049, Allied-Signal Aerospace Co. v. United States

Docket Nº:93-1049.
Citation:996 F.2d 1185
Party Name:ALLIED-SIGNAL AEROSPACE COMPANY, Garrett Engine Division and Garrett Auxiliary Power Division, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, and The Torrington Company and Federal-Mogul Corporation, Defendant-Appellee.
Case Date:June 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1185

996 F.2d 1185 (Fed. Cir. 1993)

ALLIED-SIGNAL AEROSPACE COMPANY, Garrett Engine Division and

Garrett Auxiliary Power Division, Plaintiffs-Appellants,

v.

The UNITED STATES, Defendant-Appellee,

and

The Torrington Company and Federal-Mogul Corporation,

Defendant-Appellee.

No. 93-1049.

United States Court of Appeals, Federal Circuit

June 22, 1993

Page 1186

Louis S. Mastriani, Adduci, Mastriani, Meeks & Schill, Washington, DC, argued for plaintiffs-appellants. With him on the brief was Gregory C. Anthes.

James R. Cannon, Jr., Stewart & Stewart, Washington, DC, and Michael S. Kane, U.S. Dept. of Justice, argued for the defendant-appellee. Also on the brief were Eugene L. Stewart, Terence P. Stewart, Wesley K. Caine and Robert A. Weaver, of Stewart & Stewart, Washington, DC.

Before MICHEL, Circuit Judge, BENNETT, Senior Circuit Judge, and LOURIE, Circuit Judge.

LOURIE, Circuit Judge.

Allied-Signal Aerospace Company appeals from the judgment of the United States Court of International Trade denying Allied-Signal's motion for judgment on the agency record and affirming the final determination of the United States Department of Commerce, International Trade Administration (ITA) after an administrative review of antidumping duty orders covering antifriction bearings from France. Allied-Signal Aerospace Co. v. United States, 802 F.Supp. 463 (Ct.Int'l Trade 1992). In reviewing the dumping margins for bearings imported by Allied-Signal, the ITA used the highest dumping rates assigned to any company in the original antidumping investigation as the "best information otherwise available" under 19 U.S.C. § 1677e(c) (1988). We reverse and remand.

BACKGROUND

In response to a petition filed in 1988 on behalf of the domestic antifriction bearing industry, the ITA initiated an investigation to determine whether to impose antidumping duties on antifriction bearings and parts thereof from France. Upon the conclusion of its investigation, the ITA determined that such bearings were being, or were likely to be, sold in the United States at less than fair value (LTFV). 54 Fed.Reg. 19092 (Dep't Comm.1989). Pursuant to that LTFV determination, the ITA issued the following "weighted average" dumping margins covering antifriction bearings from France:

Ball Bearings Margin Percentage INA 66.18 SKF 66.42 SNR 56.50 All others 65.13 Cylindrical Roller Bearings Margin Percentage INA 11.03 SNR 18.37 All others 17.31

Page 1187

Id. at 19096. On May 15, 1989, the ITA published final orders imposing antidumping duties on antifriction bearings imported from France consistent with its LTFV determination. Id. at 20902.

On the first anniversary of the publication of the antidumping duty orders, the ITA notified interested parties of an opportunity to request administrative review of the orders pursuant to 19 U.S.C. § 1675 (1988). 55 Fed.Reg. 19093 (May 8, 1990). Allied-Signal, a United States purchaser and importer of antifriction bearings, submitted a request for administrative review of ball bearings and cylindrical roller bearings produced by SNFA S.A., a French manufacturer of customized aerospace bearings. On June 11, 1990, the ITA initiated the review for the period from November 9, 1988 through April 30, 1990. 55 Fed.Reg. 23,575.

The ITA subsequently issued a questionnaire to SNFA requesting factual information pertinent to the review, pursuant to 19 C.F.R. § 353.22(c)(2) (1992). The ITA questionnaire requested general corporate information (Section A), data on U.S. sales (Section B), data on home market sales (Section C), and cost of production information and constructed value data (Section D) for the review period. SNFA, however, provided information responding only to Section A of the questionnaire due to what it alleged were procedural and financial obstacles prohibiting it from providing the remaining requested data. Because SNFA was deemed to have provided an "inadequate response" to the questionnaire, the ITA resorted to the "best information available" (BIA), which it concluded was represented by "the highest margin calculated in the final determination of sales at less than fair value (LTFV) or this review." 56 Fed.Reg. 11179.

The ITA published its preliminary results from the administrative review on March 15, 1991. For the period from November 9, 1988 through April 30, 1990, the ITA issued the following preliminary dumping margins:

Ball Bearings Margin Percentage SKF-France 6.97 Fiat Aviazione 0.00 SNECMA 0.08 Aerospatiale 8.09 Turbomeca 10.43 Pratt & Whitney Canada 4.89 SNR Roulements 0.36 INA Roulements 66.42 SNFA 66.42 Dowty Rotol 66.42 Cylindrical Roller Bearings Margin Percentage SKF-France No sales Fiat Aviazione No sales SNECMA 0.29 Aerospatiale 22.73 Turbomeca 1.88 Pratt & Whitney Canada 4.89 SNR Roulements 0.31 SNFA 22.73 INA Roulements 22.73 Dowty Rotol No Sales

56 Fed.Reg. 11181 (emphases added). The preliminary dumping margin of 66.42% for SNFA's ball bearings constituted the highest margin assigned to any producer of ball bearings in the original LTFV investigation. Similarly, the preliminary margin of 22.73%

Page 1188

for SNFA's cylindrical roller bearings constituted the highest margin calculated for any producer of such bearings in the administrative review.

Allied-Signal contested the ITA's preliminary determination, alleging that the proposed rates were inordinately harsh and punitive given SNFA's willingness to cooperate. Allied-Signal also claimed that by applying rates based on the original LTFV investigation, the ITA ignored the most recent information available, namely, current verified information submitted by other comparable respondents during the review. On July 11, 1991, the ITA published its final results. For the period from November 9, 1988 through April 30, 1990, the ITA made the following final dumping margin determinations:

Ball Bearings Margin Percentage SKF-France 7.79 SNECMA 0.21 Fiat Aviazione 0.00 ADH 2.64 Turbomeca 6.85 Pratt & Whitney Canada 4.33 SNR 2.03 INA-France 66.42 SNFA 66.42 Dowty Rotol 0.00 All others 7.79 Cylindrical Roller Bearings Margin Percentage SKF-France No sales SNECMA 0.24 Fiat Aviazione No sales ADH 3.15 Turbomeca 10.63 Pratt & Whitney Canada 2.07 SNR 1.08 INA-France 18.37 SNFA 18.37 Dowty Rotol No sales All others 10.63

56 Fed.Reg. 31750 (emphases added).

In reaching its final results, the ITA again resorted to the best information available and explained its BIA policy:

For the purposes of these final results of review, we have applied two tiers of BIA:

  1. When a company refused to cooperate with the [ITA] or otherwise significantly impeded these proceedings, we have used as BIA the higher of (1) The highest of the rates found for any firm for the same class or kind of merchandise in the same country of origin in the less than fair value investigation (LTFV) or (2) the highest rate found in this review for the same class or kind of merchandise in the same country of origin.

  2. When a company substantially cooperated with our requests for information including, in some cases, verification, but failed to provide the information requested in a timely manner or in the form required, we have used as BIA the higher of: (1) The firm's LTFV rate for the subject merchandise (or the "all others" rate from the LTFV investigation, if the firm was not individually investigated), or (2) the highest calculated rate in this review for the class or kind of merchandise from the same country of origin.

Page 1189

56 Fed.Reg. 31705. The ITA stated that because "SNFA responded only to section A of our questionnaire and provided no further responses ... [we therefore] applied the first tier of BIA." Id. Thus, the dumping margin determinations of 66.42% for ball bearings and 18.37% for cylindrical roller bearings manufactured by SNFA were each the highest margins assigned to any company from the original LTFV determination for those types of bearings.

On August 29, 1991, Allied-Signal filed a complaint in the United States Court of International Trade challenging the ITA's final dumping margin determination. Allied-Signal did not dispute that the ITA was required under 19 U.S.C. § 1677e(c) to use the best information available in making its determination. However, Allied-Signal argued that in selecting the highest rates from the original LTFV investigation as the best information available, the ITA used its "two-tier" BIA methodology in a punitive manner, thereby frustrating the remedial purpose of the antidumping laws. Allied-Signal also argued that the ITA abused its discretion in failing to consider the available verified information submitted for the administrative review record by other similarly situated bearing manufacturers, which it claimed more accurately reflected market conditions during the review period.

Allied-Signal moved for judgment on the record, and that motion was denied. The court concluded that the agency was justified in applying the "first tier" of the methodology because SNFA failed to adequately respond to the questionnaire. 802 F.Supp. at 466. The court also concluded that the agency's selection of the highest prior margins was reasonably within its broad discretion in selecting the best information available. Id. Lastly, the court rejected Allied-Signal's contention that the ITA punitively applied its BIA methodology to SNFA's bearing entries because Allied-Signal did not offer evidence to show that the margins selected by the ITA were demonstrably less probative of current market conditions than the review margins. Id. at 467. Accordingly, the court affirmed the final determination in all respects and dismissed the case.

DISCUSSION

We review the decision of the Court of International Trade by applying de novo the statutory standard of review to the underlying agency determination. U.H.F.C. Co. v. United States, ...

To continue reading

FREE SIGN UP
102 practice notes
  • Antidumping: quality steel from— Japan,
    • United States
    • Federal Register May 06, 1999
    • 28 Abril 1999
    ...investigatory role'' assigned to the Department by defining the scope of the record. See Allied-Signal Co. Aerospace v. United States, 996 F.2d 1185, 1191 (Fed. Cir. 1993). Respondent concludes that the Department cannot allow any party, including a petitioner, to benefit from an attempt to......
  • Washington International Ins. Co. v. United States, 072909 USCIT, 08-00156
    • United States
    • Federal Cases Court of International Trade
    • 29 Julio 2009
    ...Gerber Food, supra, 29 CIT at 769 n.3, 387 F.Supp.2d at 1285 n.3). [19] See, e.g., Allied-Signal Aerospace Co. v. United States. 996 F.2d 1185, 1191 (Fed. Cir. 1993); Rhone Poulenc, 899 F.2d at 1190. [20] Cf., e.g., 19 U.S.C. § 1677b(a)(1)(B)(ii)(II) (5% considered adequate for certain comp......
  • 834 F.Supp. 413 (CIT. 1993), 91-12-00919, Hussey Copper, Ltd. v. United States
    • United States
    • Federal Cases Court of International Trade
    • 10 Septiembre 1993
    ...of BIA under the statute. See 19 U.S.C. § 1677e(c). See also, Allied-Signal Aerospace Co. v. United States, 11 Fed.Cir. (T) ----, 996 F.2d 1185 (1993) (a respondent that failed to provide Commerce with requested information due to its particular costing system and limited accounting resourc......
  • 862 F.Supp. 384 (CIT. 1994), 92-06-00422, Federal-Mogul Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • 26 Agosto 1994
    ...it as "a reasonable and permissible exercise of the ITA's statutory authority." Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1192 The ITA is in the best position to know what information it requires and what information will satisfy those requirements. Here, the IT......
  • Free signup to view additional results
87 cases
  • Washington International Ins. Co. v. United States, 072909 USCIT, 08-00156
    • United States
    • Federal Cases Court of International Trade
    • 29 Julio 2009
    ...Gerber Food, supra, 29 CIT at 769 n.3, 387 F.Supp.2d at 1285 n.3). [19] See, e.g., Allied-Signal Aerospace Co. v. United States. 996 F.2d 1185, 1191 (Fed. Cir. 1993); Rhone Poulenc, 899 F.2d at 1190. [20] Cf., e.g., 19 U.S.C. § 1677b(a)(1)(B)(ii)(II) (5% considered adequate for certain comp......
  • 834 F.Supp. 413 (CIT. 1993), 91-12-00919, Hussey Copper, Ltd. v. United States
    • United States
    • Federal Cases Court of International Trade
    • 10 Septiembre 1993
    ...of BIA under the statute. See 19 U.S.C. § 1677e(c). See also, Allied-Signal Aerospace Co. v. United States, 11 Fed.Cir. (T) ----, 996 F.2d 1185 (1993) (a respondent that failed to provide Commerce with requested information due to its particular costing system and limited accounting resourc......
  • 862 F.Supp. 384 (CIT. 1994), 92-06-00422, Federal-Mogul Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • 26 Agosto 1994
    ...it as "a reasonable and permissible exercise of the ITA's statutory authority." Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1192 The ITA is in the best position to know what information it requires and what information will satisfy those requirements. Here, the IT......
  • 870 F.Supp. 1130 (CIT. 1994), 93-09-00616, National Steel Corp. v. United States
    • United States
    • Federal Cases Court of International Trade
    • 13 Diciembre 1994
    ...two-tiered methodology for determining the rate to be applied. Allied-Signal Aerospace Co. v. United States, 11 Fed.Cir. (T) ----, ----, 996 F.2d 1185, 1190-91 (1993); Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant ......
  • Free signup to view additional results
15 provisions
  • Antidumping: quality steel from— Japan,
    • United States
    • Federal Register May 06, 1999
    • 28 Abril 1999
    ...investigatory role'' assigned to the Department by defining the scope of the record. See Allied-Signal Co. Aerospace v. United States, 996 F.2d 1185, 1191 (Fed. Cir. 1993). Respondent concludes that the Department cannot allow any party, including a petitioner, to benefit from an attempt to......
  • Antidumping: rolled carbon steel flat products from— Korea,
    • United States
    • Federal Register January 07, 1998
    • 29 Diciembre 1997
    ...Results of Antidumping Administrative Reviews, 60 FR 10900, 10908 (February 28, 1995), Allied- Signal Aerospace Co. v. United States, 996 F.2d 1185 (Fed. Cir. 1993); NTN Bearing Corp. of America v. United States, Slip Op. [[Page 793]] 129 (CIT July 13, 1993). The Department considers the er......
  • Roller chain, other than bicycle, from— Japan,
    • United States
    • Federal Register November 16, 1998
    • 4 Noviembre 1998
    ...is unwarranted. Pulton claims that the circumstances in this case are similar to those of Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1192 (Fed. Cir. 1993) (Allied-Signal), where the Court of Appeals for the Federal Circuit (CAFC) found that the Department's decision to cha......
  • Preliminary Results of, and Partial Rescission of, the Antidumping Duty Administrative Review, etc.:
    • United States
    • Federal Register March 04, 2011
    • 4 Marzo 2011
    ...request, and propose alternative methodologies for getting the necessary information. See Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185, 1192 (Federal Circuit 1993). Mukand has failed to do either. Logically, at a minimum, in order to produce bars of different sizes, Mukand pe......
  • Free signup to view additional results