Transcom, Inc. v. U.S.

• Decision Date: 07 April 1998
• Docket Number: Slip Op. 98-42.,Court No. 97-01-00037.
• Parties: TRANSCOM, INC., Plaintiff, L & S Bearing Company, Plaintiff-Intervenor, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

5 F.Supp.2d 984

TRANSCOM, INC., Plaintiff, L & S Bearing Company, Plaintiff-Intervenor, v. UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.

Slip Op. 98-42.

Court No. 97-01-00037.

United States Court of International Trade.

April 7, 1998.

Neville Peterson & Williams, New York City (George W. Thompson and John M. Peterson), Washington, DC, for Transcom, Inc.

Frank W. Hunger, Asst. Atty. General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Dept. of Justice (Lucius B. Lau); of counsel: Linda S. Chang, Office of Chief Counsel for Import Administration, U.S. Dept. of Commerce, Washington, DC, for Defendant.

Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr. Washington, DC, and Charles A. St. Charles) for Defendant-Intervenor Timken Co.

OPINION

TSOUCALAS, Senior Judge.

Plaintiff moves pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record challenging the final determination of the Department of Commerce, International Trade Administration ("Commerce"), entitled 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).

Background

1. Early Investigations and Reviews

In 1986, Commerce conducted an investigation of tapered roller bearings ("TRBs") from the People's Republic of China ("PRC"). At that time, the only exporter of the subject merchandise known to the United States was a single national-level export corporation, China National Machinery and Equipment Import and Export Corporation ("CMEC"). Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China; Preliminary Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 3833 (Feb. 6, 1987). All U.S. imports were sourced, either directly or indirectly, through Premier Bearing and Equipment, Limited ("Premier"), a Hong Kong trading company. Therefore, while only CMEC and Premier were named in Commerce's preliminary determination, the investigation covered all PRC TRB sales to the United States. Id. at 3833-34.

In the final determination of the less-than-fair-value ("LTFV") investigation, Commerce found margins only for Premier, not for CMEC. Tapered Roller Bearings From the People's Republic of China; Final Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 19,748 (May 27, 1987). The antidumping duty order therefore originally established rates only for Premier and "all others," the latter of which was a rate Commerce evidently calculated for potential resellers other than Premier that might obtain TRBs through CMEC. Antidumping Duty Order, Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China, 52 Fed.Reg. 22,637 (June 13, 1987). By Chinese law, CMEC was the sole Chinese exporter of TRBs. Tapered Roller Bearings From the People's Republic of China; Rescission of Initiation of Administrative Review, 54 Fed.Reg. 41,480, 41,480 (Oct. 10, 1989). Consequently, the order originally covered TRBs sold by independent resellers, including Premier, that obtained TRBs from CMEC. As a result, the first (1987-88) and second (1988-89) reviews of the order dealt solely with Premier.

Following Timken's successful challenge to certain aspects of Commerce's final LTFV determination, Commerce found a dumping margin for CMEC and revised its order accordingly. Tapered Roller Bearings From the People's Republic of China; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order in Accordance With Decision Upon Remand ("Amended LTFV Determination"), 55 Fed.Reg. 6669, 6669 (Feb. 26, 1990). Beginning with the third review, therefore, PRC-based entities were reviewed as exporters to the United States.

As CMEC was believed to control all PRC exports, Commerce individually named CMEC and Premier in the notice of initiation for the third review. Initiation of Antidumping Duty Administrative Reviews, 55 Fed.Reg. 30,490 (July 26, 1990). However several companies other than CMEC requested separate treatment during the review, and so, Commerce proceeded to review all PRC-based parties that provided questionnaire responses. In the final results of the third review, Commerce determined that CMEC, while continuing to function as a multi-branch company, no longer held a monopoly on the exportation of PRC TRBs. Hence, Commerce calculated separate rates for the eight participating companies: CMEC, Premier and six firms that provided questionnaire responses. Final Results of Antidumping Duty Administrative Review: Tapered Roller Bearings and Parts Thereof From the People's Republic of China, 56 Fed.Reg. 67,590, 67,597 (Dec. 31, 1991). Commerce also assigned an all others rate to apply to PRC firms other than those that had participated in the third review, as well as to any market-economy resellers not involved in the review.¹

2. The Challenged Administrative Reviews

On June 5, 1991, Commerce published a notice of opportunity to request an administrative review for the fourth period of review of the antidumping duty order at issue. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 56 Fed.Reg. 25,663. In response, Timken, Chin Jun Industrial Ltd. ("Chin Jun"), a Hong Kong reseller of PRC bearings, and Henan Machinery and Equipment Import and Export Corporation, a PRC exporter, requested an administrative review. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Preliminary Results of Antidumping Administrative Reviews ("Preliminary Results"), 60 Fed.Reg. 44,302, 42,302 (Aug. 25, 1995). Timken specifically requested the review of "all merchandise covered by the order, from whatever source," and listed the 43 companies "presently known to Timken" to be sources of PRC TRBs (36 PRC-based producers, five PRC-based exporters and two Hong Kong-based exporters). Letter from Stewart and Stewart, Attorneys for Timken, to Hon. Robert Mosbacher, Secretary of Commerce, P.R. Doc. No. 4, at 1, Pl.'s App., Ex. 1 (June 28, 1991). In response, Commerce initiated the fourth review. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 56 Fed.Reg. 33,251 (July 19, 1991); Initiation of Antidumping and Countervailing Duty Administrative Reviews, 56 Fed. Reg. 47,185 (Sept. 18, 1991) (naming two additional firms). In all, Commerce sent questionnaires to 43 companies named in the notices of initiation. Preliminary Results, 60 Fed.Reg. at 44,302.

On June 8, 1992, Commerce published a notice of opportunity to request an administrative review for the fifth period of review of the antidumping duty order at issue. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 57 Fed.Reg. 24,244. Chin Jun requested that its imports for that period be reviewed. Preliminary Results, 60 Fed. Reg. at 44,302. Timken requested that Commerce review "all known producers and exporters, plus any additional producers and exporters which become known during the course of the review," and provided a list of the same parties named in its fourth review request. Letter from Stewart and Stewart, Attorneys for Timken, to Hon. Barbara H. Franklin, Secretary of Commerce, P.R. Doc. No. 136, at 7, Pl.'s App, Ex. 6. (June 29, 1992). In response, Commerce initiated the fifth review. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 57 Fed.Reg. 32,521 (July 22, 1992).

One June 7, 1993, Commerce published a notice of opportunity to request an administrative review for the sixth period of review on the antidumping duty order at issue. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 58 Fed.Reg. 31,941. Chin Jun again requested that its imports for that period be reviewed. Preliminary Results, 60 Fed.Reg. at 44,302. Timken requested that Commerce review the same 43 companies previously named, as well as "any other exporter from Hong Kong or any other third country and any other exporters or producers, where ever [sic] located, presently or previously part of or including within their names: China National Machinery and Equipment Import and Export Corporation[,] China National Machinery Import and Export Corporation [and] Machinery Import and Export Corporation." Letter from Stewart and Stewart, Attorneys for Timken, to Hon. Ronald H. Brown, Secretary of Commerce, P.R. Doc. No. 164, Pl.'s App, Ex. 8 (June 30, 1993). In response, Commerce initiated the sixth review, individually naming the 43 companies. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 58 Fed. Reg. 39,007 (July 21, 1993).

Commerce received seven responses from the 43 companies individually named in the fourth period request for review and nine responses from the companies individually named in the fifth and sixth periods requests for review. Preliminary Results, 60 Fed. Reg. at 44,302. The schedules for reviews four through six were eventually merged and Commerce published the preliminary and final results for the three reviews simultaneously.

In the Preliminary Results, Commerce determined that margins for exporters that did not receive a separate rate in the fourth review were 15.61% and that margins for such exporters in the fifth and sixth reviews were 23.76%. 60 Fed.Reg. at 44,305. Commerce noted that the preliminary margins did not constitute a separate-rate finding for firms that had participated to some degree in the reviews but had not qualified for separate rates. Id. at 44,306. Commerce further stated that, effective upon the publication of the Final Results, the cash deposit rate would be 23.76% for all remaining PRC exporters not entitled to...