UCF America Inc. v. US, Slip Op. 96-42. Court No. 92-01-00049.

• Decision Date: 27 February 1996
• Docket Number: Slip Op. 96-42. Court No. 92-01-00049.
• Citation: 919 F. Supp. 435
• Parties: UCF AMERICA INC. and Universal Automotive Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

919 F. Supp. 435

UCF AMERICA INC. and Universal Automotive Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor.

Slip Op. 96-42. Court No. 92-01-00049.

United States Court of International Trade.

February 27, 1996.

Venable, Baetjer, Howard & Civiletti, John M. Gurley and Lindsay B. Meyer, for plaintiffs.

Frank W. Hunger, Washington, DC, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Patricia L. Petty, Washington, DC; of counsel: Edward Reisman, Mary P. Michel and Lucius B. Lau, Washington, DC, Attorney-Advisors, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, Charles A. St. Charles and James R. Cannon, Jr., Washington, DC, for defendant-intervenor, The Timken Company.

OPINION

TSOUCALAS, Judge:

Plaintiffs, UCF America Inc. and Universal Automotive Co., Ltd. ("UCF"), contest aspects of the affirmative determination by the United States Department of Commerce, International Trade Administration ("Commerce"), in Final Results of Antidumping Duty Administrative Review: Tapered Roller Bearings and Parts Thereof From the People's Republic of China ("Final Results"), 56 Fed.Reg. 67,590 (Dec. 31, 1991).

Background

On August 25, 1986, The Timken Company ("Timken"), a U.S. domestic manufacturer of tapered roller bearings and parts ("TRBs"), petitioned Commerce to investigate whether imports of TRBs from the People's Republic of China ("PRC") were being sold in the United States at less than fair value ("LTFV"). Consequently, Commerce initiated an antidumping investigation of China National Machinery & Equipment Import and Export Corporation ("CMEC"), an exporter of PRC-origin TRBs, and Premier Bearing & Equipment, Ltd. ("Premier"), a Hong Kong-based trading company that exports PRC-produced TRBs to the United States. Tapered Roller Bearings, Rollers and Parts Thereof, Finished or Unfinished, From the People's Republic of China; Initiation of Antidumping Duty Investigation, 51 Fed.Reg. 33,283 (Sept. 19, 1986). CMEC and Premier were believed to account for all sales of TRBs from the PRC. 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 ("LTFV Preliminary Results"), 52 Fed.Reg. 3,833, 3,834 (Feb. 6, 1987). Commerce determined that the PRC is a state-controlled-economy country. LTFV Preliminary Results, 52 Fed. Reg. at 3,834. Commerce established a margin only for Premier and an "all others" rate for all other TRB exporters not specifically reviewed. Tapered Roller Bearings From the People's Republic of China; Final Determination of Sales at Less Than Fair Value ("LTFV Final Results"), 52 Fed.Reg. 19,748 (May 27, 1987).

The resulting antidumping duty order covered Premier at 0.97% and all other unreviewed companies, excluding CMEC, at 0.97%. Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China, 52 Fed.Reg. 22,667 (June 15, 1987). The LTFV Final Results were successfully challenged and this Court remanded the case to Commerce for redetermination. Timken Co. v. United States, 12 CIT 955, 699 F.Supp. 300 (1988).

Upon redetermination, Commerce established a margin of 4.69% for CMEC, confirmed Premier's rate of 0.97% and set a new "all others" rate of 2.96%. The Court affirmed Commerce's redetermination in Timken Co. v. United States, 13 CIT 238, 714 F.Supp. 535 (1989), aff'd, 894 F.2d 385 (Fed. Cir.1990). The Court of Appeals for the Federal Circuit (CAFC) upheld CMEC's margin and on February 26, 1990, Commerce published an amended dumping order. 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, 55 Fed. Reg. 6,669 (1990).

On July 26, 1990, Commerce initiated the third administrative review at issue, naming only Premier and CMEC. Initiation of Antidumping Duty Administrative Reviews, 55 Fed.Reg. 30,490 (1990). The investigation expanded to eight companies and, preliminarily, the "all others" rate was set at 15.61% ad valorem, a rate equal to the margin found for one of the eight reviewed companies, Jilin Machinery Import and Export Corporation ("Jilin"). Preliminary Results of Antidumping Duty Administrative Review: Tapered Roller Bearings and Parts Thereof From the People's Republic of China, 56 Fed.Reg. 50,309, 50,311-312 (Oct. 4, 1991). The final determination established company-specific margins for each of the reviewed companies, including CMEC and Premier, and assigned an "all others" rate of 8.83%, a rate equal to Jilin's margin. Final Results, 56 Fed.Reg. at 67,597. The Court remanded the case to Commerce for redetermination in UCF America, Inc. v. United States, 18 CIT ___, 870 F.Supp. 1120, 1129 (1994), instructing Commerce to "reinstate the `all others' cash deposit rate applicable prior to these Final Results for entries of unreviewed companies which have not become subject to assessment pursuant to a subsequent administrative review."

On March 9, 1995, Commerce filed with this Court its Redetermination on Remand, Final Results of Sales at Less Than Fair Value, Tapered Roller Bearings and Parts Thereof From the People's Republic of China, 1989-1990 Administrative Review (A-570-601), UCF America, Inc. v. United States, Court No. 92-01-00049 and Slip Op. 94-184 (Dec. 5, 1994) ("Redetermination on Remand").

On redetermination, Commerce states that it has now reinstated the "all others" cash deposit rate applicable prior to these Final Results for entries of unreviewed companies which have not become subject to assessment pursuant to a subsequent administrative review. Redetermination on Remand at 1. However, Commerce calls this rate a "PRC rate." Commerce also corrected the arithmetic error related to foreign inland freight costs for Jilin.

Discussion

Commerce's final results filed pursuant to a remand will be sustained unless that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988).

1. The "All Others" Rate

Commerce concedes that the Final Results "incorrectly established an `all others' rate of 8.83 percent." Redetermination on Remand at 4. In reinstating the 2.96% "all others" rate, Commerce notes that its reasoning differs from that of Federal-Mogul Corp. v. United States, 17 CIT 442, 822 F.Supp. 782, 784-88 (1993), on which the Court relied in UCF America, 18 CIT at ___, 870 F.Supp. at 1120. Redetermination on Remand at 4. Commerce states: "Where the Department reviews entries from a non-market economy, it issues a non-market economy rate (here, the `PRC rate') in lieu of an `all others' rate. This rate is 2.96 percent." Id. at 1 (emphasis added).

Commerce elaborates:

In 1991, the Department established a new policy concerning non-market economies. Under this policy, all non-market economy exporters are presumed to be a single enterprise controlled by the central government, which receives a single rate (the "PRC rate"). See Final Determination of Sales At Less Than Fair Value: Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China (56 FR 241, Jan. 3, 1991); Final Results of Antidumping Duty Administrative Review: Iron Construction Castings from the People's Republic of China (56 FR 2742, Jan. 24, 1991). A company is entitled to a separate rate only if it establishes that it is not subject to de jure or de facto control by the central Government. See Final Determination of Sales At Less Than Fair Value: Silicon Carbide from the People's Republic of China (59 FR 22585, May 2, 1994).

Id. at 2-3.

Consistent with our presumption of government control of exporters in non-market economy cases, we issue one rate applicable to all exports from non-market countries, except for exports by companies found to be entitled to separate rates. In this case, the PRC rate may only be changed pursuant to a review of a company not receiving a separate rate. Under our policy, any company not entitled to a separate rate is considered to be part of the presumptive "single entity" representing all PRC exporters. Therefore, if a review only covers companies entitled to separate rates, the PRC rate remains the same because no part of the presumptive single entity is subject to review.

Prior to the 1989-90 review, it was not the Department's practice to treat all PRC exporters as a single enterprise controlled by the central government. Thus, the Department automatically issued separate rates for all reviewed companies and issued an "all others" rate for unreviewed companies. Then, as discussed above, in 1991 the Department established its practice of assigning a single rate for all exports from the PRC. Therefore, the final results of the 1989-90 review should have referred to a PRC rate, not an "all others" rate. Since all respondents in the 1989-90 review qualified for separate rates, no reviewed company was part of the presumptive "single entity." Thus, the PRC rate should have remained unchanged. The last rate applicable to PRC exporters was the "all others" rate from the investigation. Therefore, this rate should have been the PRC rate.

In conformity with the Court's order, we have reinstated the PRC rate for the third review at 2.96 percent. This rate will be used for both assessment and cash deposit purposes.

Id. at...