Peer Bearing Co. Changshan v. United States

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