Allied-Signal Aerospace Co. v. U.S., ALLIED-SIGNAL

• Citation: 28 F.3d 1188
• Decision Date: 30 June 1994
• Docket Number: No. 94-1112,ALLIED-SIGNAL,94-1112
• Parties: AEROSPACE COMPANY, Garrett Engine Division and Garrett Auxiliary Power Division, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, The Torrington Company, Defendant-Appellee, and Federal-Mogul Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1188

28 F.3d 1188

16 ITRD 1449

ALLIED-SIGNAL AEROSPACE COMPANY, Garrett Engine Division and Garrett Auxiliary Power Division, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee The Torrington Company, Defendant-Appellee and Federal-Mogul Corporation, Defendant-Appellee.

No. 94-1112.

United States Court of Appeals Federal Circuit.

June 30, 1994.

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

Velta A. Melnbrencis, Atty., U.S. Dept. of Justice, Washington, DC, argued, for defendant-appellee, The U.S. With her on the brief were Frank W. Hunger, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Stephen J. Powell, Berniece A. Browne and Thomas H. Fine, of counsel.

Frederick L. Ikenson, Atty., Frederick L. Ikenson, P.C., Washington, DC, argued, for defendant-appellee, Federal-Mogul Corp.

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 affirming the determination on remand of the Department of Commerce, International Trade Administration (ITA), concerning antidumping duty margins for antifriction bearings from France. Allied-Signal Aerospace Co. v. United States, 833 F.Supp. 935 (Ct. Int'l Trade 1993). Because the ITA's determination is consistent with our holding in Allied-Signal Aerospace Co. v. United States, 996 F.2d 1185 (Fed.Cir.1993) (Allied-Signal I ), we affirm the judgment.

BACKGROUND

In this appeal, we revisit the two-tier methodology utilized by the ITA in determining the best information available (BIA) for a party that "refuses or is unable to produce information requested in a timely manner and in the form required, or otherwise significantly impedes" an antidumping duty investigation. 19 U.S.C. Sec. 1677e(c) (1988). The undisputed facts are recounted here to the extent they are pertinent to the issues on appeal. ¹

Following an investigation into whether antifriction bearings were being, or were likely to be, sold in the United States at less than fair value (LTFV), the ITA issued final orders imposing antidumping duties on antifriction bearings from France on May 15, 1989. The ITA subsequently conducted an administrative review of those orders for the period from November 9, 1988 through April 30, 1990. One of the companies subject to the review was SNFA S.A., a French manufacturer of customized aerospace bearings. SNFA was not one of the bearing manufacturers individually investigated by the ITA in the original LTFV investigation.

In responding to the ITA's request for information relating to SNFA's sales for the period under review, SNFA claimed that it was unable to supply all the requested data due to its limited resources and small sales volume. The ITA consequently resorted to the best information available, which it derived using its two-tier BIA methodology. ² Deeming the first tier of the methodology to be applicable to SNFA, the ITA assigned duty rates of 66.42% and 18.37% to SNFA's sales of ball bearings and cylindrical roller bearings, respectively. Those rates constituted Allied-Signal, a domestic importer of antifriction bearings, challenged the final dumping margins assigned to SNFA. Although the BIA methodology employed by the ITA was ultimately upheld on appeal in Allied-Signal I, we disagreed with the ITA's decision to apply the first tier of the two-tier methodology with respect to SNFA. We concluded that application of the first tier was improper because SNFA's failure to provide a complete response to the ITA's request for information was not caused by deliberate recalcitrance, but was due to its inability to provide the data. Because the record indicated that SNFA had substantially cooperated with the ITA, we remanded the case to allow the ITA to "recalculate the dumping margins at issue under the second tier of the two-tier BIA methodology." 996 F.2d at 1193.

the highest rates assigned to any party from the original LTFV investigation.

The ITA issued its final remand results on July 27, 1993, assigning margins of 65.13% and 17.31% to SNFA's sales of ball bearings and cylindrical roller bearings, respectively. Consistent with the second tier of the BIA methodology, the ITA selected the "all others" rates from the LTFV investigation, which were higher than any rates calculated in the review period for those bearings. Allied-Signal contested the remand results, claiming that they were inconsistent with Allied-Signal I. The Court of International Trade sustained the ITA's determination and dismissed the action. Allied-Signal now appeals.

DISCUSSION

Dissatisfied with the results obtained on remand, Allied-Signal once again contests the ITA's application of the BIA methodology to SNFA. Allied-Signal contends that Allied-Signal I requires the ITA to use the highest rate calculated for any company in the administrative review as the second-tier BIA rate for a nonresponsive party, such as SNFA, who was not assigned its own rate from the original LTFV investigation. Allied-Signal alleges that on remand, the ITA violated the Allied-Signal I remand order by using the "all others" rates.

In support of that contention, Allied-Signal relies on the following passage in Allied-Signal I:

The critical difference in BIA treatment under the first and second tiers lies in the range of LTFV margins subject to consideration as the best information available. Under the first tier, the ITA may consider the margin of any company involved in the prior LTFV investigation. Under the second tier, the ITA may only consider a particular firm's own prior LTFV rate.

996 F.2d at 1191 (emphasis added). Pursuant to that "order," and focusing on the underscored language, Allied-Signal argues that only the firm's own LTFV rate may be used. It asserts that, failing that, the ITA should have assigned to SNFA the highest rates calculated in the administrative review (i.e., margins of 7.79% and 10.63% for ball bearings and cylindrical roller bearings, respectively), because SNFA was not assigned its own rates from the LTFV investigation.

The position taken by Allied-Signal in this appeal is a poorly disguised attempt to reargue what has already been decided in Allied-Signal I. By taking a sentence in the opinion completely out of the context in which it was written, Allied-Signal distorts its meaning and purpose. The paragraph in Allied-Signal I upon which Allied-Signal relies is part of a general discussion comparing the two tiers of the ITA's BIA methodology. In that discussion, we recognized that the basic distinction between the two tiers lies in subdivision (1) of each tier. In the first tier, subdivision (1) provides that...