Company-Changshan v. United States
| Decision Date | 21 December 2015 |
| Docket Number | Consol. Court No. 11–00022,Slip Op. 15–143 |
| Citation | 128 F.Supp.3d 1304 |
| Parties | Peer Bearing Company–Changshan, Plaintiff, v. United States, Defendant, and The Timken Company, Defendant-intervenor. |
| Court | U.S. Court of International Trade |
John M. Gurley and Diana Dimitriuc Quaia, Arent Fox LLP, of Washington, DC, for plaintiff and defendant-intervenor Peer Bearing Company–Changshan.
L. Misha Preheim, Senior Trial Counsel, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With them on the brief were Joyce R. Branda, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief was Justin Ross Becker, Office of the Chief Counsel for Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Herbert C. Shelley and Christopher G. Falcone, Steptoe & Johnson LLP, of Washington, DC, for defendant-intervenors Changshan Peer Bearing Company Ltd. and Peer Bearing Company.
William A. Fennell, Terence P. Stewart, and Stephanie M. Bell, Stewart and Stewart, of Washington, DC, for plaintiff and defendant-intervenor The Timken Company.
Stanceu
, Chief Judge:
This consolidated action arose from challenges to a final determination ("Final Results") that the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") issued to conclude the twenty-second review of an antidumping duty order on tapered roller bearings ("TRBs") and parts thereof, finished and unfinished, from the People's Republic of China ("China" or the "PRC"). Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Final Results of the 2008–2009 Antidumping Duty Admin. Review, 76 Fed.Reg. 3,086 (Int'l Trade Admin. Jan. 19, 2011)
("Final Results"). The twenty-second review pertained to entries of subject merchandise made during the period of June 1, 2008, through May 31, 2009 ("period of review" or "POR"). Final Results, 76 Fed.Reg. at 3,086.
Before the court is the second redetermination upon remand ("Second Remand Redetermination") Commerce submitted in response to the court's opinion and order in Peer Bearing Co.–Changshan v. United States, 38 CIT ––––, 986 F.Supp.2d 1389 (2014)
("Peer Bearing II"). Final Results of Redetermination Pursuant to Court Remand (Aug. 8, 2014), ECF No. 126–1 ("Second Remand Redetermination "). The court affirms the Second Remand Redetermination.
The background of this case is provided in the court's prior opinions and is supplemented herein. Peer Bearing Co.–Changshan v. United States, 36 CIT ––––, ––––, 884 F.Supp.2d 1313, 1317–18 (2012)
("Peer Bearing I") (first remand order); Peer Bearing Co.-Changshan v. United States, 35 CIT ––––, ––––, Slip Op. 11–125 at 1–2 (Oct. 13, 2011) (); Peer Bearing II, 38 CIT at ––––, 986 F.Supp.2d at 1392–93 (second remand order).
Commerce issued the antidumping duty order on "imports of tapered roller bearings from the PRC" (the "Order") in 1987. Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China, 52 Fed.Reg. 22,667, 22,667 (Int'l Trade Admin. June 15, 1987)
("Antidumping Duty Order"). The scope of the Order, as stated in the Final Results, is "shipments of tapered roller bearings and parts thereof, finished and unfinished, from the PRC; flange, take up cartridge, and hanger units incorporating tapered roller bearings; and tapered roller housings (except pillow blocks) incorporating tapered rollers, with or without spindles, whether or not for automotive use." Final Results, 76 Fed.Reg. at 3,087.
One of the plaintiffs in this action is PBCD, LLC, which in this litigation is representing the interests of two previously-existing companies, Peer Bearing Company–Changshan, a Chinese company that produced and exported subject merchandise during the first few months of the POR, and its affiliated U.S. importer, Peer Bearing Company.
On September 11, 2008, approximately two and a half months into the POR, Peer Bearing Company–Changshan, the sole respondent in the prior (twenty-first) administrative review, and its affiliate Peer Bearing Company were acquired by AB SKF, of Sweden, and subsequently ceased to exist as legal entities. Both of these previously-existing companies transferred their legal responsibilities relating to the twenty-second administrative review to PBCD, LLC. In this Opinion, the court refers to the entity litigating claims on behalf of the pre-acquisition companies as "PBCD" and to the pre-acquisition producer Peer Bearing Company–Changshan as "CPZ."
Upon the acquisitions by AB SKF, the production facilities in China were organized as a new company, Changshan Peer Bearing Co. Ltd., and the affiliated U.S. importer also became a new company, again named "Peer Bearing Company." Second Remand Redetermination 1 n.1. During the administrative proceedings, Commerce found that the post-acquisition companies were not successors-in-interest to their pre-acquisition counterparts and, accordingly, treated the pre-acquisition and post-acquisition companies as distinct legal entities for purposes of the twenty-second review. Id.
On the basis of this finding, Commerce split the POR into two segments based on the September 11, 2008 date of the acquisition, after which date Commerce considered SKF to have made both the sales and the entries. Peer Bearing I, 36 CIT at ––––, 884 F.Supp.2d at 1327. Both of the new companies, i.e., the two SKF affiliates, are defendant-intervenors in this action. In this Opinion, the court refers to the post-acquisition producer and respondent Changshan Peer Bearing Co. Ltd. as "SKF."
The other plaintiff in this action is domestic TRB producer The Timken Company ("Timken"), which sued separately to contest the Final Results and also was a defendant-intervenor in the action commenced by PBCD. See Compl., Timken Co. v. United States, Court No. 11–00039 (Mar. 10, 2010), ECF No. 9. The court consolidated the two cases. Order (June 13, 2011), ECF No. 27 ().
In Peer Bearing II,
the court affirmed in part, and remanded in part, the remand redetermination Commerce issued in response to the court's order in Peer Bearing I, directing Commerce to reconsider two issues. Peer Bearing II, 38 CIT at ––––, 986 F.Supp.2d at 1414–15. The Second Remand Redetermination, submitted August 8, 2014, reduced PBCD's margin from 22.82% to 21.65% and SKF's margin from 22.12% to 19.45%. Second Remand Redetermination 17.
Only Timken and PBCD have commented on the Second Remand Redetermination. Timken objects to only one aspect of the Second Remand Redetermination. Timken Co.'s Comments on Dep't Com.'s Second Redetermination Pursuant to Ct. Remand (Sept. 10, 2014), ECF No. 130 ("Timken's Comments"). PBCD makes no objection to either of the Department's determinations on second remand. Peer Bearing Co.–Changshan's Comments on the Second Remand Redetermination (Sept. 10, 2014), ECF No. 129 ("PBCD's Comments").
Defendant filed its reply with the court on September 25, 2014. Def.'s Resp. to Def.-intervenor's Comments Regarding the Remand Redetermination, ECF No. 131.
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c)
, pursuant to which the court reviews actions commenced under section 516A of the Tariff Act of 1930 ("Tariff Act"), 19 U.S.C. § 1516a, including an action contesting the final results of an administrative review that Commerce issues under section 751 of the Tariff Act, 19 U.S.C. § 1675(a).1 The court will sustain the Department's redetermination if it complies with the court's remand order, is supported by substantial evidence on the record, and is otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(i).
In Peer Bearing II,
the court remanded for explanation the Department's choice of factor-of-production ("FOP") data to calculate the normal value of TRBs manufactured by the former producer, CPZ, but sold from SKF's acquired inventory during the POR by the newly-formed Peer Bearing Company. Peer Bearing II, 38 CIT at ––––, 986 F.Supp.2d at 1412–14. In the First Remand Redetermination, Commerce had calculated normal value for these TRBs using data pertaining to CPZ's production of subject merchandise in the brief period between the beginning of the POR and the acquisition (i.e., the data that PBCD had submitted to the record).2
Peer Bearing II, 38 CIT at ––––, 986 F.Supp.2d at 1412 ().3 In Peer Bearing II, the court found that Commerce had not explained why it chose these data over certain other data, submitted for the record by Timken, pertaining to CPZ's production of subject merchandise during the prior POR. Id. at ––––, 986 F.Supp.2d at 1413. The court directed Commerce to "reconsider its selection of the data submitted by PBCD over the data submitted by Timken and provide a rationale grounded in the requirements of the statute for the data set it chooses." Id.
In the Second Remand Redetermination, Commerce continued to value the TRBs at issue using the FOP data submitted by PBCD relating to the first three months of the POR. Second Remand Redetermination 13. Commerce provided an explanation for its decision, reasoning, inter alia, that its decision is...
To continue reading
Request your trial
- Company-Changshan v. United States
-
Coalition v. United States
...with law. See, e.g., Whirlpool Corp. v. United States, 40 CIT ___, Slip Op. 16-81 (Aug. 26, 2016); Peer Bearing Company--Changshan v. United States, 39 CIT ___, 128 F. Supp. 3d 1304 (2015). On the other hand, since the matter requires remand of the issue of changed methodology, supra, the c......