Allied-Signal Aerospace Co. v. U.S., ALLIED-SIGNAL
| Decision Date | 22 June 1993 |
| Docket Number | No. 93-1049,ALLIED-SIGNAL,93-1049 |
| Citation | 996 F.2d 1185 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Federal Circuit |
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.
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.
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:
---------- 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:
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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% 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:
for SNFA's cylindrical roller bearings constituted the highest margin calculated for any producer of such bearings in the administrative review.
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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.
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...
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