Slip Op. 08 – 134
UNITED STATES COURT OF INTERNATIONAL TRADE
PEER BEARING COMPANY –
CHANGSHAN,
Before: Richard W. Goldberg,
Plaintiff, Senior Judge
v. Court No. 07-00373
UNITED STATES,
Defendant,
and
THE TIMKEN COMPANY,
Defendant-
Intervenor.
OPINION
[Commerce’s final antidumping duty administrative review
determination is sustained.]
Dated: December 8, 2008
Arent Fox PLLC (John J. Gurley, Nancy A. Noonan, and Diana
Dimitriuc Quaia) for Plaintiff Peer Bearing Company - Changshan.
Gregory G. Katsas, Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Jane C. Dempsey); Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce (Ahran Kang),
Of Counsel, for Defendant United States.
Stewart and Stewart (Terence P. Stewart, William A. Fennell, and
Wesley K. Caine) for Defendant-Intervenor The Timken Company.
Court No. 07 – 00373 Page 2
GOLDBERG, Senior Judge: In this action, plaintiff Peer Bearing
Company – Changshan (“CPZ”), a Chinese producer of tapered
roller bearings, challenges the decision of the International
Trade Administration of the United States Department of Commerce
(“Commerce”) in Tapered Roller Bearings and Parts Thereof,
Finished or Unfinished, from the People's Republic of China:
Final Results of 2005-2006 Administrative Review and Partial
Rescission of Review, 72 Fed. Reg. 56,724 (Dep’t Commerce Oct.
4, 2007) (“Final Results”). In its Final Results, Commerce
found that because CPZ did not respond to its questionnaire, CPZ
merited an antidumping rate pursuant to adverse inferences
available under section 776 of the Tariff Act of 1930; 19 U.S.C.
§ 1677e(b) (2000). Accordingly, Commerce assigned CPZ the PRC-
wide entity rate of 60.95%.1 CPZ does not contest the adverse
facts available (“AFA”) finding, but it argues that this finding
should not automatically merit a presumption of state control
and the application of the PRC-wide entity rate. CPZ maintains
that because it had previously qualified for a separate rate,
that separate rate should continue to apply. In the
alternative, CPZ disputes the rate chosen as the PRC-wide entity
1
The PRC-wide entity, including CPZ among other companies,
either failed to respond to Commerce’s questionnaires, withheld
or failed to provide information in a timely manner or in the
form requested by Commerce, or otherwise impeded the proceeding.
The PRC-wide entity rate was thus calculated using total adverse
facts available pursuant to section 776 of the Tariff Act of
1930; 19 U.S.C. § 1677e(b) (2000).
Court No. 07 – 00373 Page 3
rate. For the reasons that follow, the Court affirms Commerce’s
findings.
I. JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c)
(2000).
A court shall hold unlawful Commerce’s final determination
in an antidumping administrative review if it is “unsupported by
substantial evidence on the record, or otherwise not in
accordance with the law.” Tariff Act of 1930, § 516a, 19 U.S.C.
§ 1516a(b)(1)(B)(i) (2000). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Nippon Steel Corp. v. United States,
337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting Consol. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he possibility of
drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported
by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S.
607, 620 (1966) (citing NLRB v. Nevada Consol. Copper Corp., 316
U.S. 105, 106 (1942)). The Court need only find evidence “which
could reasonably lead” to the conclusion drawn by Commerce, thus
making it a “rational decision.” Matsushita Elec. Indus. Co. v.
United States, 750 F.2d 927, 933 (Fed. Cir. 1984).
In determining the lawfulness of an agency’s statutory
construction, the Court examines “whether Congress’s purpose and
Court No. 07 – 00373 Page 4
intent on the question at issue is judicially ascertainable.”
Timex V.I., Inc. v. United States, 157 F.3d 879, 881 (Fed. Cir.
1998) (construing Chevron, U.S.A., Inc. v. Nat. Resources Def.
Council, Inc., 467 U.S. 837, 843 n.9 (1984)). If Congress’s
intent is unclear, the Court must defer to the agency’s
construction if it is reasonable. Chevron, 467 U.S. at 843-44.
Commerce’s determination may be deemed unlawful “where Commerce
has failed to carry out its duties properly, relied on
inadequate facts or reasoning, or failed to provide an adequate
basis for its conclusions.” Rhone Poulenc, Inc. v. United
States, 20 CIT 573, 575, 927 F. Supp. 451, 454 (1996).
II. DISCUSSION
A. Commerce Properly Assigned CPZ the PRC-Wide Entity Rate
Regarding the assignment of the PRC-wide entity rate, CPZ
raises three arguments. First, it disputes the application of
the PRC-wide entity rate and claims that a separate rate should
apply because CPZ received a separate rate in prior reviews.
Second, it argues that the calculation of the PRC-wide entity
rate is in conflict with the statutory requirement of
determining dumping margins by calculating the normal value and
U.S. price of each entry. Third, CPZ argues that Commerce’s
presumption of state control in non-market economy countries is
not entitled to Chevron deference because it is not based on a
Court No. 07 – 00373 Page 5
formal statute or regulation. The Court addresses each argument
in turn.
i. CPZ Did Not Rebut the Presumption of State Control
A company operating in an NME such as China is presumed to
be under government control. Shandong Huanri (Group) Gen. Co. v.
United States, 31 CIT __, __, 493 F. Supp. 2d 1353, 1357 (2007).
Under this presumption, it is Commerce’s policy to assign NME
exporters of the same merchandise the countrywide antidumping
duty rate. Transcom, Inc. v. United States, 294 F.3d 1371, 1373
(Fed. Cir. 2002); Shandong Huanri, 31 CIT at __, 493 F. Supp. 2d
at 1357; Manganese Metal from the People’s Republic of China, 63
Fed. Reg. 12,440, 12,441 (Dep’t Commerce Mar. 13, 1998) (final
determination). However, if a company establishes its
independence from the government, it will be assigned a separate
rate calculated through the same process utilized in market
economies. Transcom, 294 F.3d at 1373. To rebut the presumption
of government control, an exporter must “‘affirmatively
demonstrate’ its entitlement to a separate, company-specific
margin by showing ‘an absence of central government control,
both in law and in fact [de jure and de facto], with respect to
exports.’” Sigma Corp. v. United States, 117 F.3d 1401, 1405
(Fed. Cir. 1997) (quoting Tianjin Mach. Import & Export Corp. v.
United States, 16 CIT 931, 935, 806 F. Supp. 1008, 1013-14
(1992)); see also Final Determination of Sales at Less Than Fair
Court No. 07 – 00373 Page 6
Value: Sparklers from the People’s Republic of China, 56 Fed.
Reg. 20,588, 20,589 (Dep’t Commerce May 6, 1991). “Absence of
de jure government control can be demonstrated by reference to
legislation and other governmental measures that decentralize
control. Absence of de facto government control can be
established by evidence that each exporter sets its prices
independently of the government and of other exporters, and that
each exporter keeps the proceeds of its sales.” Sigma, 117 F.3d
at 1405 (citing Tianjin, 16 CIT at 935, 806 F. Supp. at 1013-
14).
Here, CPZ maintains that it merits a separate rate, not
because it rebutted the presumption of state control for this
review period, but because it had been previously assigned a
separate rate in its New Shipper Review and in the 2001-2002
administrative review.2 CPZ does not dispute that AFA applied
because CPZ did not respond to Commerce’s questionnaire.
Nevertheless, CPZ claims that AFA should not equate to a
presumption of state control and the assignment of the PRC-wide
2
CPZ qualified for a separate rate of 12.25% for the period of
June 1, 2000 through January 31, 2001. Tapered Roller Bearings
and Parts Thereof, Finished or Unfinished, from the People’s
Republic of China: Final Results of New Shipper Reviews, 67 Fed.
Reg. 10,665 (Dep’t Commerce Mar. 8, 2002). CPZ qualified for a
separate rate of 0% for the period of June 1, 2001 to May 31,
2002. Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished, from the People’s Republic of China: Final Results
of 2001-2002 Administrative Review and Partial Rescission of
Review, 68 Fed. Reg. 70,488 (Dep’t Commerce Dec. 18, 2003).
Court No. 07 – 00373 Page 7
entity rate. This argument fails because “each administrative
review is a separate segment of proceedings with its own unique
facts. Indeed, if the facts remained the same from period to
period, there would be no need for administrative reviews.”
Shandong Huarong Mach. Co. v. United States, 29 CIT 484, 491
(2005). Each individual review consists of different sales,
adjustments, and underlying information. Issues and Decision
Memorandum for the Administrative Review of Fresh Garlic from
the People’s Republic of China, A-570-831 (Mar. 13, 2002),
available at http://ia.ita.doc.gov/frn/summary/prc/02-6076-
1.txt; Heavy Forged Hand Tools, Finished or Unfinished, With or
Without Handles, from the People’s Republic of China, 65 Fed.
Reg. 66,691, 66,693 (Dep’t Commerce Nov. 7, 2000) (preliminary
results).
Because CPZ did not respond to the questionnaire and failed
to provide any other information relating to this review period,
there is no alternative but to apply the presumption of state
control to CPZ and, in turn, assign the PRC-wide entity rate to
the company. Without any information to refute the presumption,
CPZ does not merit a separate rate.
ii. A Presumption of State Control is Not in Conflict with
the Statute
Secondly, CPZ argues that Commerce’s calculation of the
PRC-wide entity rate is not in accordance with law because the
Court No. 07 – 00373 Page 8
presumption of state control for NMEs conflicts with the Tariff
Act of 1930, § 751(a)(2), 19 U.S.C. § 1675(a)(2)(A). This
section of the Act requires Commerce to establish margins by
determining the normal value and U.S. price of each entry.3 In
its argument, CPZ does not explain how normal value could be
calculated under 19 U.S.C. § 1675(a)(2)(A) if no information has
been provided as to individual entries. Because neither CPZ,
nor any other PRC-wide entity company, responded to any part of
the questionnaire or provide any other documentation, there is
no available information on the record for review. It is thus
not possible for Commerce to calculate a dumping margin specific
to any of the entries during the period of review. There is
also no information with which a separate rate could conceivably
be calculated. Accordingly, there is no merit to this argument.
iii. Chevron Deference is Applicable to the Presumption of
State Control
CPZ claims that Chevron deference is not applicable to
Commerce’s presumption of state control for NMEs. It argues
that there never was a formal declaration of this policy, and
informal means of establishing such procedures do not warrant
3
19 U.S.C. § 1675(a)(2)(A) states: “In general, for the purpose
of [determining the amount of any antidumping duty], the
administering authority shall determine (i) the normal value and
export price (or constructed export price) of each entry of the
subject merchandise, and (ii) the dumping margin for each such
entry.”
Court No. 07 – 00373 Page 9
Chevron deference. However, contrary to CPZ’s argument, Chevron
deference does apply to the presumption regardless of whether
the policy has been formally published.
Chevron deference has previously applied to methodologies
developed by Commerce in antidumping duty contexts where no
formal regulation was in place. Pesquera Mares Australes Ltda.
v. United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001). In
addition, antidumping proceedings are considered to be rulings
for the purposes of Chevron deference. Id. Commerce is accorded
substantial deference as the “master of antidumping law.” Daewoo
Elecs. Co. v. Int’l Union, 6 F.3d 1511, 1516 (Fed. Cir. 1993)
(internal quotations omitted) (citing Consumer Prod. Div., SCM
Corp. v. Silver Reed Am., Inc., 753 F.2d 1033, 1039 (Fed. Cir.
1985)). Notably, Commerce has specifically declined to codify
this “separate rates test” because of the flexibility required
to evaluate the changing conditions in NME countries on a case-
by-case basis. Antidumping Duties; Countervailing Duties;
Proposed Rule, 61 Fed. Reg. 7308, 7311 (Dep’t Commerce Feb. 27,
1996). As such, Chevron deference remains appropriate.
Accordingly, the Court finds that there is substantial
evidence to support an assignment of the PRC-wide entity rate to
CPZ and it is in accordance with the law. Thus, CPZ’s argument
for a separate rate is without merit.
Court No. 07 – 00373 Page 10
B. Commerce Sufficiently Corroborated the Rate Selected as the
PRC-Wide Entity Rate
CPZ also disputes the rate chosen as the PRC-wide entity
rate. Specifically, CPZ argues that the 60.95% PRC-wide entity
rate was not properly corroborated by Commerce and bears no
relationship to CPZ’s actual dumping margin. CPZ also states
that this rate is impermissibly punitive. According to CPZ, the
applicable rate should be 33.18%, which represents the PRC-wide
entity rate in several prior, but not all, administrative
reviews.4
4
Commerce assigned 33.18% as the PRC-wide entity rate in the
1999-2000, 2000-2001, 2001-2002 periods of review, but 60.95%
was assigned as the PRC-wide entity rate in the 2002-2003, 2003-
2004, 2004-2005 periods of review. Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished, from the People’s
Republic of China, 66 Fed. Reg. 57,420, 57,422 (Dep’t Commerce
Nov. 15, 2001) (final results of 1999-2000 administrative
review); Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from the People’s Republic of China, 67 Fed. Reg.
68,990, 68,992 (Dep’t Commerce Nov. 14, 2002) (final results of
2000-2001 administrative review); Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished, from the People’s
Republic of China, 68 Fed. Reg. 70,488, 70,489 (Dep’t Commerce
Dec. 18, 2003) (final results of 2001-2002 administrative
review); Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from the People’s Republic of China, 69 Fed. Reg.
42,041, 42,042 (Dep’t Commerce July 13, 2004) (final results of
2002-2003 administrative review; Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished, from the People’s
Republic of China, 71 Fed. Reg. 2517, 2523 (Dep’t Commerce Jan.
17, 2006) (final results of 2003-2004 administrative review);
Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from the People’s Republic of China, 71 Fed. Reg.
75,936, 75,937 (Dep’t Commerce Dec. 19, 2006) (final results of
2004-2005 administrative review).
Court No. 07 – 00373 Page 11
i. It is Not Necessary to Corroborate the PRC-Wide Entity
Rate with Respect to CPZ
CPZ claims that Commerce did not corroborate the PRC-wide
entity rate as required under the Tariff Act of 1930 § 776, 19
U.S.C. § 1677e(c). Pursuant to this section, when applying a
rate based on facts available, Commerce must corroborate the
facts applied with “information from independent sources that
are reasonably at their disposal.” This requirement ensures
that the AFA rate chosen is “a reasonably accurate estimate of
the respondent’s actual rate, albeit with some built-in increase
intended as a deterrent to non-compliance.” F.LLI De Cecco Di
Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027,
1032 (Fed. Cir. 2000). CPZ claims that because of this
requirement the rate must bear a relationship to the prior rates
assigned to CPZ, and that the 60.95% rate is excessive
considering the prior calculated rates for CPZ during the life
of this antidumping order have ranged from 0% to 12.25%. CPZ
argues that the Court should reject the 60.95% rate because it
was based on outdated sales data that was not indicative of
CPZ’s commercial practices. However, CPZ mistakenly assumes
that a correlation must be directly drawn between the chosen
PRC-wide entity rate and CPZ’s past rates.
In the context of an NME, Commerce typically assigns a
countrywide rate when a company fails to respond and thus fails
Court No. 07 – 00373 Page 12
to establish its eligibility for a separate rate. Tapered Roller
Bearings and Parts Thereof, Finished or Unfinished, from the
People's Republic of China: Preliminary Results of Antidumping
Duty Administrative Review and Notice of Intent to Rescind in
Part, 70 Fed. Reg. 39,744, 39,751 (Dep’t Commerce July 11,
2005); see, e.g., Final Determination of Sales at Less Than Fair
Value: Certain Frozen and Canned Warmwater Shrimp from the
Socialist Republic of Vietnam, 69 Fed. Reg. 71,005, 71,008
(Dep’t Commerce Dec. 8, 2004), and accompanying Issues and
Decision Memorandum at Comment 10; Notice of Final Antidumping
Duty Determination of Sales at Less Than Fair Value and
Affirmative Critical Circumstances: Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam, 68 Fed. Reg. 37,116,
37,119 (Dep’t Commerce June 23, 2003). In calculating the PRC-
wide entity rate, it has been Commerce’s “long-standing practice
of assigning to respondents who fail to cooperate with
Commerce’s investigation the highest margin calculated for any
party in the less-than-fair-value investigation or in any
administrative review.” Sigma Corp., 117 F.3d at 1411; see also
Shandong Huanri, 31 CIT at __, 493 F. Supp. 2d at 1363; Fujian
Mach. & Equip. Imp. & Exp. Corp. v. United States, 27 CIT 1059,
1070, 276 F. Supp. 2d 1371, 1381 (2003). This practice follows
the principle that the exporter should not benefit from its
refusal to provide information, and emphasizes that past
Court No. 07 – 00373 Page 13
practices in the industry are still relevant. D & L Supply Co.
v. United States, 113 F.3d 1220, 1223 (Fed. Cir. 1997).
Here, Commerce assigned 60.95% as the PRC-wide entity rate
based on total AFA, which was the highest calculated rate from
any prior review period. CPZ is correct that a rate based on
AFA must have a rational relationship to the specific company to
which it is applied. See Reiner Brach GmbH & Co.KG v. United
States, 26 CIT 549, 565, 206 F. Supp. 2d 1323, 1339 (2002); see
also China Steel Corp. v. United States, 28 CIT 38, 60-61, 306
F. Supp. 2d 1291, 1311 (2004). However, CPZ was not assigned an
AFA rate specific to the company itself; it was assigned the
PRC-wide entity rate based on total AFA. Contrary to CPZ’s
argument, there is no requirement that the PRC-wide entity rate
based on AFA relate specifically to the individual company. It
is not directly analogous to the process used in a market
economy, where there is no countrywide rate. Here, the rate
must be corroborated according to its reliability and relevance
to the countrywide entity as a whole. See, e.g., Heavy Forged
Hand Tools, Finished or Unfinished, With or Without Handles,
from the People’s Republic of China, 65 Fed. Reg. 66,691,
66,694-95 (Dep’t Commerce Nov. 7, 2000) (preliminary results).
Thus, it is not necessary to corroborate the PRC-wide entity
rate as to an individual company. The rate must only be
generally corroborated as to the PRC-wide entity.
Court No. 07 – 00373 Page 14
ii. The PRC-Wide Entity Rate Was Sufficiently Corroborated
Because AFA were used in calculating the PRC-wide entity
rate, Commerce must “to the extent practicable, corroborate
[the] information [used as facts available] from independent
sources that are reasonably at their disposal.” Tariff Act of
1930 § 776, 19 U.S.C. § 1677e(c). This includes “information
derived from the petition that gave rise to the investigation or
review, the final determination concerning the subject
merchandise, or any previous review under [19 U.S.C. § 1675]
concerning the subject merchandise.” Statement of Administrative
Action accompanying the Uruguay Round Agreements Act, H.R. Rep.
103-316 at 870 (1994), as reprinted in 1994 U.S.C.C.A.N. 4040,
4199; see also 19 C.F.R. § 351.308(c) (2005). Commerce must
“satisfy themselves that the secondary information to be used
has probative value.” Statement of Administrative Action
Accompanying the Uruguay Round Agreements Act, H.R. Rep. No.
103-316, at 870 (1994), as reprinted in 1994 U.S.C.C.A.N. 4040,
4199. To show the rate chosen has probative value, Commerce
must assure itself of both the rate’s (1) current reliability;
and (2) the relevancy of the data used as its basis. Ferro
Union, Inc. v. United States, 23 CIT 178, 205, 44 F. Supp. 2d
1310, 1335 (1999).
Unlike other sources of information, there are no
independently verifiable sources for calculated dumping margins,
Court No. 07 – 00373 Page 15
other than previous administrative determinations. Hence, the
reliability of the calculation stems from its basis in prior
verified information in previous administrative reviews. If
Commerce chooses a calculated dumping margin from a prior
segment of the proceeding, it is not necessary to question the
reliability of the margin if it was calculated from verified
sales and cost data. Shandong Huarong Gen. Group Corp. v. United
States, 31 CIT __, Slip Op. 07-04 (Jan. 9, 2007). Here, the
60.95% rate selected was originally calculated for Premier
Bearing and Equipment Ltd. in the amended final results for the
administrative review of the period of June 1, 1993 to May 31,
1994. Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from the People’s Republic of China, 67 Fed. Reg.
79,902, 79,903 (Dep’t Commerce Dec. 31, 2002) (amended final
results). This rate was upheld by this Court in 2002 and later
by the Federal Circuit. Peer Bearing Co. v. United States, 26
CIT 590 (2002), aff’d, Peer Bearing Co. v. United States, Appeal
No. 02-1519 (Fed. Cir. Oct. 14, 2003). No evidence has been
presented in the current review that would call into question
the trustworthiness of this information. It is thus considered
reliable data.
Regarding the relevance of the chosen PRC-wide entity rate,
CPZ argues that because the 60.95% rate was first calculated in
the 1993-1994 administrative review period, the data is now
Court No. 07 – 00373 Page 16
outdated and cannot be considered relevant to the current
review. However, there was no information presented, by CPZ or
any other named respondent, for the 2005-2006 administrative
review period. Accordingly, even though the original
calculation is based on data provided for the 1993-1994 review,
there is no current information that would indicate that it is
not presently relevant.
In addition, the age of the information alone does not call
into question the relevance of the chosen rate. This situation
differs from American Silicon Technologies v. United States, 26
CIT 1216, 1222-23, 240 F. Supp. 2d 1306, 1312 (2002), where this
court found that the AFA rate was not relevant. The rate was
based on six-year old data, but it was also 25% higher than any
rate calculated based on actual data and thus not representative
of true dumping margins.5 Id. With respect to the present
dumping order, 60.95% rate was the PRC-wide entity rate as
recently as the 2004-2005 administrative review period, only one
5
CPZ’s arguments based on Ferro Union, Inc. v. United States, 23
CIT 178, 44 F. Supp. 2d 1310 (1999) are similarly misplaced. In
Ferro Union, there were other rates that had been previously
calculated specifically for the company in question and Commerce
chose a prior rate for another company. Id. at 202-03, 44 F.
Supp. 2d at 1333. The court found that Commerce had not
properly corroborated the rate chosen. Id. at 205, 44 F. Supp.
2d at 1335. The rate in question had been selected specifically
for the respondent and Commerce was required to show a rational
relationship to the individual respondent. Id. In the current
situation, we are dealing with a countrywide rate, not an
individual rate.
Court No. 07 – 00373 Page 17
year prior to the current review period. Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, from the People’s
Republic of China: Final Results of 2004-2005 Administrative
Review and Partial Rescission of Review, 71 Fed. Reg. 75,936,
75,937 (Dep’t Commerce Dec. 19, 2006). Additionally, the 60.95%
rate was most recently corroborated during the 2003-2004
administrative review. Tapered Roller Bearings and Parts
Thereof, Finished or Unfinished, from the People’s Republic of
China: Preliminary Result of Antidumping Duty Administrative
Review and Notice of Intent to Rescind in Part, 70 Fed. Reg.
39,744, 39,752 (Dep’t Commerce July 11, 2005). This is a more
recent review than the review where 33.18%, the rate recommended
by CPZ, was calculated as the PRC-wide entity rate. Tapered
Roller Bearings and Parts Thereof, Finished and Unfinished, from
the People’s Republic of China: Final Results of 2001-2002
Administrative Review and Partial Rescission of Review, 68 Fed.
Reg. 70,488, 70,489 (Dep’t Commerce Dec. 18, 2003).
The PRC-wide entity rate is an appropriate estimate of what
the actual dumping margin would be for an unverifiable Chinese
exporter of tapered roller bearings. Because the 60.95% rate is
both reliable and relevant, the rate has been properly
corroborated for the 2005-2006 administrative review period.
Accordingly, the Court finds that the PRC-wide entity rate
Court No. 07 – 00373 Page 18
chosen by Commerce is supported by substantial evidence and is
in accordance with the law.
iii. The PRC-Wide Entity Rate is Not Punitive
In determining a rate based on AFA, Commerce must
“appropriately balanc[e] th[e] goal of accuracy against the risk
of creating a punitive margin.” Timken Co. v. United States, 26
CIT 1072, 1076, 240 F. Supp. 2d 1228, 1234 (2002). For a rate
to be considered punitive, it must be shown that Commerce
rejected “low-margin information in favor of high-margin
information that is demonstrably less probative of current
conditions.” Rhone Poulenc, Inc. v. United States, 899 F.2d
1185, 1190 (Fed. Cir. 1990). As demonstrated above, the rate
chosen by Commerce is both reliable and relevant to the current
review period. Thus, the rate is not demonstrably less
probative than another rate and is not punitive.
III. CONCLUSION
CPZ is not entitled to a separate rate because it failed to
provide information rebutting the presumption of state control.
Commerce properly determined that the PRC-wide entity rate
applies. The rate selected by Commerce as the PRC-wide entity
rate was sufficiently corroborated and was not punitive.
Court No. 07 – 00373 Page 19
For the foregoing reasons, the Court sustains Commerce’s final
determination.
__/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: December 8, 2008
New York, New York