Luoyang Bearing Corp.(Group) v. United States

Slip Op. 05-3

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
LUOYANG BEARING CORP. (GROUP), :
ZHEJIANG MACHINERY IMPORT & EXPORT :
CORP., and CHINA NATIONAL MACHINERY :
IMPORT & EXPORT CORPORATION, :
:
Plaintiffs, :
:
and :
:
WAFANGDIAN BEARING COMPANY, LTD., :
:
Plaintiff and :
Defendant-Intervenor, : Consol. Court No.
: 01-00036
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
THE TIMKEN COMPANY, :
:
Defendant-Intervenor :
and Plaintiff. :
________________________________________:

Commerce’s Remand Results are affirmed. Case dismissed.

Hume & Associates PC (Robert T. Hume) for Luoyang Bearing
Corp. (Group) and Zhejiang Machinery Import & Export Corp.,
plaintiffs and Wafangdian Bearing Company, Ltd., plaintiff and
defendant-intervenor.

Venable LLP (Lindsay B. Meyer and Kristin K. Woody) for China
National Machinery Import & Export Corporation, plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Jeanne E. Davidson, Deputy Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Claudia Burke); of counsel: Amanda L. Blaurock, Attorney,
Office of the Chief Counsel for Import Administration, United
Consol. Court No. 01-00036 Page 2

States Department of Commerce, for the United States, defendant.

Stewart and Stewart (Terence P. Stewart and Wesley K. Caine)
for The Timken Company, defendant-intervenor and plaintiff.

OPINION

I. Standard of Review

The Court will uphold Commerce’s redetermination pursuant to

the Court’s remand 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)(i) (2000). 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 (1951) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Substantial evidence “is something less than the weight of the

evidence, and the 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. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966)

(citations omitted).

II. Background

In Luoyang Bearing Corp. (Group) v. United States, 2004 Ct.

Intl. Trade LEXIS 51 (May 18, 2004) the Court remanded the case to

the United States Department of Commerce, International Trade
Consol. Court No. 01-00036 Page 3

Administration (“Commerce”) with instructions to: (1) explain why

the surrogate values it chose for wooden cases used to ship tapered

rollers bearings (“TRBs”) to the United States and the steel used

to produce rollers by Wafangdian Bearing Company, Ltd.

(“Wafangdian”) constitutes “the best available information;” (2)

address the aberrational record data noted by Luoyang Bearing Corp.

(Group) (“Luoyang”), Wafangdian, and Zhejiang Machinery Import &

Export Corp. (“ZMC”) (collectively, “Luoyang et al.”); and (3)

conduct a separate rates analysis for Premier Bearing & Equipment

Ltd. (“Premier”) and apply the People’s Republic of China (“PRC”)

country-wide rate to all of Premier’s United States sales unless

Premier is found independent of government control. See Luoyang,

2004 Ct. Intl. Trade LEXIS 51.

Commerce filed its Final Results of Redetermination Pursuant

to Remand (“Remand Results”) on September 30, 2004. Luoyang et al.

and The Timken Company (“Timken”) filed their comments to

Commerce’s Remand Results on October 27, 2004, and October 20,

2004, respectively.1 Commerce’s response to these comments was

filed with this Court on December 6, 2004. Timken filed rebuttal

comments to Luoyang et al.’s comments on November 12, 2004.

1
China National Machinery Import & Export Corporation did
not submit comments to Commerce’s Remand Results.
Consol. Court No. 01-00036 Page 4

III. Commerce Reasonably Explained its Choice of Surrogate Values

Commerce explains that when calculating surrogate values it

generally relies on data from its primary surrogate country, which

in the case at bar is India. See Remand Results at 7. In

determining the value of steel used to produce TRBs, Commerce

calculates a weighted average of the import prices into India from

only market economy countries with imports more than seven metric

tons. See id. at 7-8. Commerce excludes “imports from a country

when the total amount imported from that country is small and the

per-unit value of those imports is substantially different from the

per-unit values of larger-quantity imports of that product from

other countries . . . .” Id. at 8. Commerce excluded from the

Indian import data all imports from the PRC and Russia because each

was a non-market economy country (“NME”). See id. at 10. Commerce

also excluded imports from Australia, Sweden, and the United

Kingdom because each country’s total imports during the reporting

period was less than seven metric tons, Commerce’s benchmark for

inclusion in the weighted average calculation. See id.

Upon reexamination, Commerce determined that “imports into

India from Austria and Germany were made in small quantities and at

per-unit values which differed substantially from the per-unit

values of the larger-quantity imports . . . .” Id. at 11.

Accordingly, Commerce excluded all imports into India from Austria
Consol. Court No. 01-00036 Page 5

and Germany. See id. Although Commerce found imports from France

and Italy were also low (in comparison to imports from Brazil and

Japan which accounted for the majority of the Indian imports),

Commerce also found that the unit values from these countries were

in line with the unit values of countries with larger quantities of

exports to India. See id. Furthermore, Commerce included imports

from France and Italy, even though some months evidenced extremely

small quantities of imports, because overall imports from the two

countries equaled 11 and 9 metric tons, respectively. See id.

Commerce explains that its practice is not “to exclude certain

months of a country’s data from [its] surrogate value calculation

based solely on the fact that the volume of imports from that

country are small in a particular month.” Id. at 9. Commerce used

the Indian import data to calculate the surrogate value for the

steel used to produce rollers “because this data was the most

contemporaneous data on the record, yielded a value that was

reliable when compared to the [United States] benchmark value, and

was from [Commerce’s] primary surrogate country, India . . . .”

Id. at 10.

With respect to values for wooden cases, Commerce examined the

Indian import data from a previous review, as requested by

Wafangdian, but rejected the use of such data. See Final Results

at 12. Commerce used Indian imports under the Harmonize Schedule
Consol. Court No. 01-00036 Page 6

category 4415.1000 (Cases Boxes Crates Drums and Similar Packing

Cable-Drums of Wood) for the period April 1998 to August 1998,

exclusive of imports from the PRC. See id. at 12-13. Commerce

found that imports from the United Kingdom were small, only 1.17

percent of all imports, while imports from other countries each

accounted for 7 percent or more of imports. See id. at 13.

Accordingly, Commerce compared the unit value of United Kingdom

imports with the other countries’ larger-quantity import values.

See id. Commerce found that the per-unit value of exports from the

United Kingdom to India fell between the per-unit values of exports

from Germany and the United States. See id. Commerce, therefore,

determined that the per-unit value for exports from the United

Kingdom are not aberrational but rather are comparable to the

values of other countries that exported larger quantities to India.

See id. at 14.

In its treatment of import data from Spain, Commerce explains

that it only excludes “values when the total amount imported from

that country is small and the per-unit value of those imports is

substantially different from the per-unit values of larger-quantity

imports of that product from other countries that exported to the

surrogate country.” Id. Here, Luoyang et al. did not argue, and

Commerce did not find, that shipments from Spain to India were in

small quantities. See id. Consequently, Commerce did not exclude
Consol. Court No. 01-00036 Page 7

imports from Spain in its calculation of surrogate values for

wooden cases. See id.

Commerce reviewed the record and revised the surrogate value

for roller steel to $772.25 per metric ton. See Remand Results at

14. Commerce, however, found that no changes were necessary for

the surrogate value of wooden cases. The Court finds that Commerce

complied with the Court’s opinion and order in Luoyang, 2004 Ct.

Intl. Trade LEXIS 51. Commerce reasonably explained why the Indian

import values were the “best available information” to calculate

the surrogate value for steel used to produce rollers. Commerce

also reasonably included export values from the United Kingdom and

Spain in its calculation of the surrogate value for wooden cases.

Moreover, Commerce’s determination is supported by substantial

record evidence.

IV. Commerce Properly Did Not Revoke the Antidumping Order For ZMC

A. Background

In reviewing the record on remand, Commerce discovered a

clerical error in calculating the antidumping margin for ZMC. See

Remand Results at 23. Commerce had erroneously assigned the

surrogate value calculated for steel used to manufacture cups and

cone steel input to the roller and cage steel inputs. See id.

Commerce, therefore, recalculated ZMC’s antidumping margin, which
Consol. Court No. 01-00036 Page 8

had been calculated at 7.37 percent, and assigned a 0.00 percent

margin to ZMC. See id. During the administrative review, ZMC

requested Commerce to revoke the antidumping margin and Commerce

had preliminarily found that ZMC qualified for revocation. See id.

In its final results, however, Commerce did not revoke the order

because ZMC had been assigned a 7.37 percent antidumping margin.

See id. Upon correcting ZMC’s antidumping margin, Commerce

determined in the Remand Results that the antidumping order should

not be revoked because there was evidence that ZMC had dumped

during a subsequent period of review. See id.

B. Analysis

Commerce properly determined to reject ZMC’s request to revoke

the antidumping duty order against it. The pertinent regulations

set out three criteria Commerce is to consider in determining

whether to revoke in part an antidumping duty order.2 See 19

2
The regulations state that in making its determination to
revoke an antidumping duty order in part, Commerce is to consider:

(A)Whether one or more exporters or producers covered by
the order have sold the merchandise at not less than
normal value for a period of at least three consecutive
years;

(B)Whether, for any exporter or producers that [Commerce]
previously has determined to have sold the subject
merchandise at less than normal value, the exporter or
producer agrees in writing to its immediate reinstatement
in the order . . . if [Commerce] concludes that the
exporter or producer, subsequent to the revocation, sold
the subject merchandise at less than normal value; and
Consol. Court No. 01-00036 Page 9

C.F.R. § 351.222(B)(2)(i) (2004). ZMC argues that it has fulfilled

all three of the regulatory criteria. See Comments of ZMC

Commerce’s Final Redetermination Results Pursuant Remand (“ZMC’s

Comments”) at 4-9. ZMC asserts that the 0.00 percent antidumping

margin is at least the third consecutive year that it has been

found not to sell the subject merchandise for less than fair value.

See id. at 5. Moreover, ZMC has agreed in writing to the immediate

reinstatement of the antidumping duty order if Commerce finds that

it has sold the subject merchandise at less than normal value. See

id. ZMC argues that Commerce’s reasons for deciding to not revoke

the order is faulty; “[b]ut for the margin in [the subsequent

review], Commerce would have revoked the order with respect to

ZMC.” See id. at 4.

While ZMC has fulfilled two of the three regulatory criteria

set forth in 19 C.F.R. § 351.222(B)(2)(i)(A) & (B), the Court finds

that ZMC’s application for revocation of the antidumping duty order

fails under the third criteria, 19 C.F.R. § 351.222(B)(2)(i)(C).

Here, Commerce properly determined that “the discipline of the

order continues to be necessary to offset dumping by ZMC.” Remand

Results at 31. Commerce based its decision on evidence that ZMC

(C)Whether the continued application of the antidumping
duty order is otherwise necessary to offset dumping.

19 C.F.R. § 351.222(B)(2)(i).
Consol. Court No. 01-00036 Page 10

sold subject merchandise at less than normal value in a subsequent

administrative review. See id. (citing Final Results of 2000-2001

Administrative Review, Partial Rescission of Review, and

Determination to Revoke Order, in Part for Tapered Roller Bearings

and Parts Thereof, Finished and Unfinished, From the People’s

Republic of China (“2001 Final Results”), 67 Fed. Reg. 68,990

(November 14, 2002). Based on this evidence, Commerce reasonably

determined that it would not revoke ZMC’s antidumping duty order

because it remains necessary to offset dumping by ZMC.3

ZMC asserts that if Commerce had not miscalculated ZMC’s

dumping margin for the final results, then Commerce would have

revoked the antidumping duty order against it. See ZMC’s Comments

at 4. Commerce’s only basis to reject ZMC’s application arose

after the conclusion of the subsequent administrative review. ZMC

argues that the Court should apply nunc pro tunc principles and

order Commerce to revoke the antidumping duty order against it.

3
ZMC argues that Commerce’s determination in the 2001
Final Results is erroneous because Commerce made a ministerial
error in the calculation of ZMC’s dumping margin. See ZMC’s
Comments at 6-9. Accordingly, ZMC requests the Court to direct
Commerce to revisit and correct this alleged calculation error.
See id. The Court’s jurisdiction, however, is limited to
Commerce’s factual determination and remand determination in the
case at bar. The Court lacks jurisdiction to consider the
propriety of Commerce’s determination in an administrative review
subject of a separate civil action. The 2001 Final Results, which
ZMC calls into question, involve a record that is not before the
Court in the context of this action.
Consol. Court No. 01-00036 Page 11

See id. at 5-6. The Court finds ZMC’s argument to be without

merit. While ZMC should have qualified for revocation for the

final results of this administrative review, Commerce may not

ignore the evidence of continued dumping by ZMC, even if such

evidence is uncovered in a subsequent administrative review.

“[A]ntidumping laws are not punitive in nature, but are designed to

remedy the inequities caused by unfair trade practices.” Allied

Tube & Conduit Corp. v. United States, 24 CIT 1357, 1370, 127 F.

Supp. 2d 207, 218 (2000); see NTN Bearing Corp. v. United States,

74 F.3d 1204, 1208 (Fed. Cir. 1995) (stating that “the antidumping

laws are remedial not punitive” (citing Chaparral Steel Co. v.

United States, 901 F.2d 1097, 1103-04 (Fed. Cir. 1990))). If

Commerce does not consider the evidence that ZMC dumped during a

subsequent period of review, then the remedial purpose of

antidumping duty laws are undermined. Accordingly, the Court

sustains Commerce’s determination to maintain the antidumping duty

order against ZMC.

V. Commerce Properly Applied the Separate Rates Test

A. Contentions of the Parties

1. Timken’s Contentions

Timken contends that Commerce failed to comply with the

Court’s remand because Commerce’s separate rates analysis failed to
Consol. Court No. 01-00036 Page 12

consider Premier in combination with its Chinese suppliers. See

Comments Timken Commerce’s Redetermination Pursuant Remand

(“Timken’s Comments”) at 2-10. Timken argues that Commerce

“avoided the Court’s recognition that Premier needed to show

independence in conjunction - i.e., in combination - with the

company’s various NME suppliers . . . .” Id. at 3 (emphasis in

original). Timken maintains that Commerce’s Remand Results are in

error because they are “based on a narrow and incorrect reading of

this Court’s remand decision, and address[] an issue not in

dispute, viz., Premier’s own technical independence when viewed in

abstract isolation.” Id. at 4.

Timken also argues that the Remand Results contradict other

agency positions. Timken notes that Commerce’s regulations

regarding the revocation of antidumping duty orders directs

Commerce to focus “on combinations of particular exporters and

their producers when trading companies (resellers) are involved.”

Id. at 5 (emphasis in original). The regulation, according to

Timken, recognizes that data from the producer of the subject

merchandise is important for determining whether a reseller or

exporter qualifies for revocation. See id. Timken argues that

Commerce’s conflicting positions do not deserve deference from the

Court. Timken also notes that Commerce has proposed a revision to

its practice when NME producers sell subject merchandise through
Consol. Court No. 01-00036 Page 13

exporters located in a market economy. See id. at 7. Timken

maintains that the proposed revision evidences agency

inconsistencies toward the treatment of resellers. See id. at 9.

Therefore, Timken asks the Court to direct Commerce to conduct a

separate rates analysis for Premier in combination with each of its

suppliers and apply the PRC rate to all United States sales of

subject merchandise unless the Chinese supplier and Premier have

established their independence from the state. See id.

2. Commerce’s Contentions

Commerce responds that it properly implemented the Court’s

opinion and order and applied the separate rates test to Premier.

See Def.’s Resp. Pl.’s Def.-Intervenor’s Comments Upon Commerce’s

Final Results (“Commerce’s Comments”) 9-12. Commerce analyzed

whether Premier had established the absence of government control

in law and in fact. See id. at 10. Commerce argues that “the

Court in no way suggested or implied that the analysis should be

applied to any other entity.” Id. at 11.

Based on Premier’s questionnaire responses, Commerce found

that Premier successfully demonstrated a lack of de jure government

control. See id. at 10. Although Premier could not provide

legislation or other governmental measures demonstrating

decentralized control of Premier’s export activities, Premier

provided a copy of its business registration certificate, which
Consol. Court No. 01-00036 Page 14

certified that Premier was operating legally in Hong Kong. See

Final Results at 20. In addition, Premier’s responses indicated

that the subject merchandise was not on any government list of

export provisions or export licensing and that there were no export

quotas. See id. at 20-21. Moreover, Commerce found that “the PRC

exercised no de facto government control over Premier.” Commerce’s

Comments at 10. Premier demonstrated that: (1) it established its

own export prices through direct negotiations with its customers;

(2) its pricing was not coordinated with other exporters or the

Hong Kong Chamber of Commerce; (3) the selection process for its

directors was not controlled by the government; (4) it had sole

control over its bank accounts; and (5) the activities of its

general manager were not subject to any level of government

approval. See id. at 10-11. Accordingly, Commerce found that

Premier was not subject to government control and therefore should

be assessed a separate rate from the PRC rate.4

B. Analysis

The Court instructed Commerce to conduct the separate rates

analysis for Premier and apply the PRC rate to all of Premier’s

United States sales unless Commerce found Premier to be free of

4
Commerce issued a notice inviting comments upon a
possible change to its NME separate rates analysis. See Commerce’s
Comments at 10. Commerce maintains that such notice does not
constitute a change in its policy. See id. at 12.
Consol. Court No. 01-00036 Page 15

state control. See Luoyang, 2004 Ct. Intl. Trade LEXIS at *84-85.

On remand, Commerce found that Premier has established that it is

autonomous from government control. See Final Results at 20-23.

Commerce determined that Premier is the company that set the price

at which the subject merchandise was sold in the United States.

See id. at 24. Accordingly, Commerce found that Premier warranted

a company-specific dumping margin and not the PRC rate to all of

Premier’s sales to the United States. The Court finds that

Commerce fully complied with its instruction to conduct a separate

rates analysis and that Commerce’s determination is supported by

substantial evidence.

As the Court has stated before, “the essence of a separate

rates analysis is to determine whether the exporter is an

autonomous market participant, or whether instead it is so closely

tied to the communist government as to be shielded from the

vagaries of the free market.” See Fujian Mach. & Equip. Imp. &

Export Corp. v. United States, 25 CIT 1150, 1174, 178 F. Supp. 2d

1305, 1331 (2001) (emphasis added). Contrary to Timken’s argument

that Commerce’s separate rates analysis must also consider

Premier’s NME suppliers, a separate rate analysis is used to

determine whether the exporter, not the producer of the subject

merchandise, is an autonomous market participant. See id.; see

also Final Determination of Sales at Less Than Fair Value for
Consol. Court No. 01-00036 Page 16

Sparklers From the People’s Republic of China, 56 Fed. Reg. 20,588

(May 6, 1991). The separate rates analysis focuses on the

exporter’s activities and the exporter’s ability to set the United

States price for its sales of the subject merchandise.

Accordingly, an exporter may qualify for a separate antidumping

duty rate by demonstrating both de jure and de facto independence

from the central government. See Sigma Corp. v. United States, 117

F.3d 1401, 1405 (Fed. Cir. 1997). To show a lack of de jure

control, an exporter may point to legislation or other governmental

measures that demonstrate a lack of centralized control. See id.

The absence of de facto control may be established with evidence

that the exporter: (1) sets its prices and negotiates its contracts

independently of the government and other exporters; (2) controls

the proceeds of its sales; and (3) makes its own personnel

decision, such as the selection of management. See id.

Here, Commerce properly found that Premier established that

there was an absence of both de jure and de facto government

control. Premier’s business registration certificate shows that it

was operating legally in Hong Kong. See Remand Results at 20-21.

In addition, the subject merchandise was not on any government list

of export provisions or export licensing and there was no

indication of export quotas. See id. Premier also successfully

demonstrated that: (1) it negotiated directly with its customers to
Consol. Court No. 01-00036 Page 17

establish its export prices; (2) its pricing was not coordinated

with either other exporters or the Hong Kong Chamber of Commerce;

(3) the government did not control the selection process for its

directors; (4) it solely controlled its accounts; and (5) its

general manager’s activities were not subject to any level of

government approval. See id. at 21-22. The Court finds that

Commerce’s determination to apply a separate antidumping duty rate

to Premier is supported by substantial evidence.

VI. Commerce’s Use of Other Producers’ Factors Data to Calculate
Premier’s Normal Value

In Luoyang, 2004 Ct. Intl. Trade LEXIS 51, the Court stated

that it would “not address the issue of whether Commerce should

have applied the Premier ‘facts available’ rate of 25.56 percent to

all reported Premier sales until it receives the remand results.”

Id. at *89. The Court finds that Commerce’s determination to apply

partial facts available is supported by substantial evidence and in

accordance with law.5 Timken argues that Commerce improperly

determined that Premier acted to the best of its ability to obtain

factors of production (“FOP”) information and that Commerce should

have applied adverse facts available to all of Premier’s sales.

See id. at *85. Premier provided Commerce with FOP information for

5
The Court set forth a detailed account of the arguments
of Timken and Commerce in Luoyang, 2004 Ct. Intl. Trade LEXIS 51,
at *85-88.
Consol. Court No. 01-00036 Page 18

some of its suppliers. See Issues and Decision Mem.6 at 34-36. In

the instances in which it was unable to obtain such information,

Premier provided Commerce with documentation of its efforts to

obtain the information from its suppliers. See id. Commerce found

that this documentation demonstrated Premier’s good faith efforts

to supply Commerce with the requested information. The Court

agrees with Commerce and finds Commerce’s refusal to apply adverse

facts available to all of Premier’s sales reasonable and in

accordance with law.

Commerce took into consideration “the fact that Premier's

suppliers may be direct competitors of Premier and, therefore, may

be understandably reluctant to provide proprietary information to

Premier.” Id. at 34. Timken points out that different conclusions

may be drawn as to why Premier failed to provide FOP information.

Inconsistent conclusions drawn from record evidence, however, does

not render Commerce’s conclusions unsupported by substantial

evidence. See Consolo, 383 U.S. at 620. Here, Commerce properly

6
The full title of this document is Issues and Decision
Memo for the 1998-99 Administrative Review of Tapered Roller
Bearings and Parts Thereof, Finished and Unfinished, from the
People’s Republic of China; Final Results, compiled as an appendix
to the Amended Final Results of 1998-1999 Administrative Review and
Determination To Revoke Order in Part on Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, From the People’s
Republic of China (“Amended Final Results”), 66 Fed. Reg. 11,562
(Feb. 26, 2001). The Court will refer to this document as Issues
& Decision Mem. and match pagination to the printed documents from
www.ia.ita.doc.gov/frn/summary/prc/01-777-1.txt.
Consol. Court No. 01-00036 Page 19

inferred from record evidence that Premier acted to the best of its

ability to supply Commerce with FOP information.7 The Court finds

that Commerce properly applied adverse facts available only to

those sales of models with no corresponding FOP data.8 Commerce’s

use of model-specific FOP data on the record of corresponding

models was reasonable and in accordance with law.

7
Commerce inferred that: (1) Premier would not benefit
from submitting incomplete FOP data; (2) Premier’s competitors
would be reluctant to provide proprietary information; and (3)
Premier’s high antidumping duty margins in previous reviews
provided an incentive for Premier to cooperate during this review.
See Issues and Decision Mem. at 34-35.
8
Timken argues that Commerce erred by using other
producers’ data in the record to calculate Premier’s normal value.
See Timken’s Comments at 4. Timken argues that Commerce has
violated the statute, 19 U.S.C. § 1677b(c)(1) (1994), which
“directs Commerce to determine the ‘normal value’ of particular
goods by reference to the producer’s FOPs, not those of other
producers.” Timken’s Comments at 4. Timken takes issue with the
method used by Commerce to calculate a factor utilization rate for
Premier in the instances in which no actual FOP data existed. As
long as Commerce’s choice of methodology is reasonable and
supported by substantial evidence, “courts are even less in the
position to question an agency action . . . .” Maier, P.E. v.
United States Envtl. Prot. Agency, 114 F.3d 1032, 1043 (10th Cir.
1997) (citing Professional Drivers Council v. Bureau of Motor
Carrier Safety, 706 F.2d 1216, 1221 (D.C. Cir. 1983)); See also
Shandong Huarong Gen. Corp. v. United States, 25 CIT 834, 840, 159
F. Supp. 2d 714, 721 (2001) (stating that Commerce’s methodology
does not have to be “the only way or even the best way to
calculate surrogate values for factors of production as long as it
was reasonable”). Here, Commerce’s method of averaging the actual
constructed value data by model for Premier’s actual suppliers to
the same models of producers that do not supply Premier is
reasonable and supported by substantial evidence.
Consol. Court No. 01-00036 Page 20

Therefore, upon review of the record, and the arguments

presented by the parties on remand, the Court finds that the Remand

Results are supported by substantial evidence on the record and in

accordance with law. Accordingly, it is hereby

ORDERED that the Remand Results are affirmed in all respects;

and it is further

ORDERED that Commerce’s determination to apply adverse facts

available to only some of Premier’s United States sales is

reasonable and supported by substantial evidence; and it is further

ORDERED that since all other issues have been decided, this

case is dismissed.

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: January 21, 2005
New York, New York