UCF America Inc. v. US

• Citation: 870 F. Supp. 1120
• Decision Date: 05 December 1994
• Docket Number: Court No. 92-01-00049.
• 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

870 F. Supp. 1120

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

Court No. 92-01-00049.

United States Court of International Trade.

December 5, 1994.

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

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Patricia L. Petty, of counsel: Edward Reisman and Mary P. Michel, Attorney-Advisors, Office of the Chief Counsel for Import Adm'n, U.S. Dept. of Commerce, Washington, DC, 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 Co.

OPINION

TSOUCALAS, Judge:

Plaintiffs, UCF America Inc. and Universal Automotive Co., Ltd., challenge the affirmative determination of 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 (1991). This action comes before the Court on plaintiffs' motion for judgment on the administrative record pursuant to Rule 56.1 of the Rules of this Court.

Background

On August 25, 1986, The Timken Company ("Timken"), a U.S. domestic producer of tapered roller bearings and parts ("TRBs"), petitioned Commerce for an investigation alleging that TRBs from the People's Republic of China (the "PRC") were being, or were likely to be, sold in the United States at less than fair value ("LTFV"). In response, Commerce initiated an antidumping investigation of China National Machinery & Equipment Import and Export Corporation ("CMEC"), an exporter of TRBs from the PRC, and of 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 (1986). CMEC and Premier accounted 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 Investigation Preliminary Results"), 52 Fed.Reg. 3,833 (1987).

On May 27, 1987, Commerce issued its final affirmative determination of sales at LTFV and confirmed its preliminary finding that the PRC is a state-controlled-economy country. Commerce found no dumping margin for CMEC, but established a margin for Premier and set an "all others" rate of 0.97% 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 Investigation Final Results"), 52 Fed.Reg. 19,748 (1987). On June 15, 1987, Commerce published an antidumping duty order covering the unfairly traded merchandise. Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China (the "Order"), 52 Fed.Reg. 22,667 (1987) ("the Order").¹

On October 18, 1988, the United States Court of International Trade remanded certain aspects of the LTFV Investigation Final Results to Commerce for redetermination. Timken Co. v. United States, 12 CIT 955, 699 F.Supp. 300 (1988). Commerce's remand determination amended the LTFV Investigation Final Results, establishing a margin for CMEC.

Subsequently, the CAFC upheld CMEC's margin and on February 26, 1990, Commerce published an amended antidumping duty order covering Premier, CMEC, and establishing an "all others" rate of 2.96%. 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 June 29, 1990, Timken requested that Commerce conduct an annual administrative review of the antidumping duty order on TRBs from the PRC with respect to CMEC, Premier, Shanghai General Bearing Co., Ltd. ("Shanghai General"), Shanghai Roller Bearing Factory ("Shanghai Roller"), Harbin, Luoyang, Yantai, Xiang Yang, Guiyang, Northwest, Hai Lin, Haihong, and Yishan. P.R. Document No. 3 at 29-30.²

On July 26, 1990, Commerce initiated this third administrative review, naming only Premier and CMEC. Initiation of Antidumping Duty Administrative Reviews ("Notice of Initiation"), 55 Fed.Reg. 30,490 (1990).

On October 4, 1991, Commerce preliminarily established company-specific dumping margins for Premier, CMEC, Guizhou Machinery Import and Export Corporation ("Guizhou"), Henan Machinery and Equipment Import and Export Corporation ("Henan"), Jilin Machinery Import and Export Corporation ("Jilin"), Liaoning Machinery and Equipment Import and Export Corporation ("Liaoning"), Luoyang and Shanghai General, and set an "all others" rate. Preliminary Results of Antidumping Duty Administrative Review: Tapered Roller Bearings and Parts Thereof From the People's Republic of China ("Preliminary Results"), 56 Fed.Reg. 50,309 (1991).

This review covered the period June 1, 1989 through May 31, 1990 for Premier and Shanghai General and from May 12, 1989 to May 31, 1990 for all other companies. Commerce issued its final determination on December 31, 1991, establishing company-specific margins for all of the above named companies and assigning an "all others" rate of 8.83% ad valorem, a rate equal to the margin found for Jilin. Final Results, 56 Fed.Reg. 67,590.

Against this background, plaintiffs now move pursuant to Rule 56.1 of the Rules of this Court for judgment on the administrative record alleging that Commerce: (1) unlawfully reviewed companies not properly within the scope of this review; (2) incorrectly applied and calculated the "all others" rate; (3) made an arithmetic error in calculating freight costs for Jilin; and (4) erred in using a CIF/FOB (Cost, Insurance and Freight/Free on Board) ratio to increase Indian raw material (steel) costs. Plaintiffs allege that, with respect to the above-enumerated errors, Commerce's Final Results are unsupported by substantial evidence on the record and are not otherwise in accordance with law. Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Judgment on the Agency Record ("Plaintiffs' Brief") at 3-50.

Discussion

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2) (1988) and 28 U.S.C. § 1581(c) (1988).

This Court must uphold Commerce's final determination unless it 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 "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).

1. The Scope of Reviewable Companies

In the Preliminary Results, Commerce stated:

During the original investigation of TRBs from the PRC, CMEC was the umbrella organization through which all companies in the PRC exported TRBs to the United States. As such, in reviewing CMEC, we included all PRC companies that exported TRBs to the United States. Given that the Department's current practice is to consider all Chinese companies as one unless evidence to the contrary can be provided, by initiating this review for CMEC and Premier, the Department meant to include all exports of TRBs from the PRC.

In addition to CMEC and Premier, this review includes Guizhou Machinery Import and Export Corporation (Guizhou), Henan Machinery and Equipment Import and Export Corporation (Henan), Jilin Machinery Import and Export Corporation (Jilin), Liaoning Machinery and Equipment Import and Export Corporation (Liaoning), Luoyang Bearing Factory (Luoyang), and Shanghai General Bearing Co., Ltd. (Shanghai General).

Preliminary Results, 56 Fed.Reg. 50,309.

Plaintiffs assert that Commerce has unlawfully reviewed companies which were not properly within the scope of this administrative review. Specifically, plaintiffs contend that Commerce should have restricted this review to only Premier and CMEC, as only these two companies were named in Commerce's Notice of Initiation. Plaintiffs' Brief at 12-13. In support of this assertion, plaintiffs argue that 19 U.S.C. § 1675(a) (1988) and 19 C.F.R. § 353.22(a) (1991) authorize administrative reviews only of specified individual producers or resellers covered by an antidumping duty order. Id. at 11-12.

Alternatively, plaintiffs assert that this review should have encompassed only CMEC, Premier, Shanghai General, Shanghai Roller, Harbin, Luoyang, Yantai, Xiang Yang, Guiyang, Northwest, Hai Lin, Haihong and Yishan, as Timken named only these companies in its request for an administrative review. Id. at 7-11. Plaintiffs argue that 19 U.S.C. § 1675(a) requires that a request for review specify the companies sought to be reviewed. For support, plaintiffs rely on Floral Trade Council v. United States, 888 F.2d 1366, 1368-69 (Fed.Cir.1989). Id. at 17-18.

Commerce refutes plaintiffs' assertions, pointing out that its review of the contested companies was consistent with its policy of regarding all exporters of a non-market economy ("NME") country...