CIT Again Remands 2006-07 China Roller Bearings AD Review; Excoriates ITA for Failure to Obey Earlier Order
The Court of International Trade remanded for the second time the final results of the 2006-07 administrative review of the antidumping duty order on tapered roller bearings and parts thereof from China (A-570-601). This time, CIT said there was nothing on the record that indicated Chinese plaintiff Peer Bearing Company-Changshan (which received a 92.84% AD rate in the original final results) was uncooperative, and therefore the ITA’s decision to apply an adverse facts available (AFA) AD rate of 60.95% on remand was unsupported. CIT also said the ITA’s decision not recalculate the surrogate values of three of plaintiff’s inputs was in violation of the first remand order, and reprimanded the ITA for failure to obey the court order.
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(CIT had originally remanded the case in January 2011, ordering the International Trade Administration to (i) redetermine Chinese plaintiff Peer Bearing Company-Changshan’s U.S. prices on a “constructed export” price basis, unless the record is reopened to obtain new price data that supports use of “export price”; and (ii) reconsider and redetermine surrogate value for three of plaintiff’s inputs. See ITT’s Online Archives 11013116 for summary of CIT’s January 2011 ruling.)
CIT Says AFA Rate Unjustified; No Evidence of Lack of Cooperation
In this opinion, CIT rejected the ITA’s decision on remand to apply adverse facts available (AFA) instead either of recalculating a new rate based on constructed export prices or supporting its decision to use export prices, as ordered. The ITA had attempted to obtain new evidence and price data to support use of an “export price,” but when plaintiff said the data didn’t exist, the ITA said plaintiff was uncooperative and applied AFA.
CIT said there was nothing on the record to indicate that such data did exist, and it was unreasonable for the ITA to consider plaintiff uncooperative in light of the special circumstances of the case, which included a two-year delay between the administrative review and the request for information during the remand, and a change in plaintiff’s ownership.
ITA’s Intentional Failure to Obey an Order a 'Serious Matter'
In response to the ITA’s decision not to reexamine the surrogate value of three of plaintiff’s inputs, as ordered, because they were not going to be used in any calculation due to the ITA’s application of AFA, CIT excoriated the ITA’s violation of a court order. The order in the first remand was unambiguous, said CIT, and even if the ITA had thought such an order was an unwise use of its resources, it could have filed a motion seeking to modify the order. A party’s intentional failure to comply with a court order “is a serious matter,” said CIT, “regardless of motivation.”
CIT Orders Recalculations, Remedial Measures Ensuring Compliance
CIT therefore ordered the ITA to determine plaintiff’s U.S. sales price according to a lawful method, and again ordered the ITA to recalculate the surrogate values. Additionally, CIT ordered the ITA to file a submission with the court informing CIT of the measures the ITA will take to ensure that it fully complies with its obligation to obey all orders CIT issues in the remainder of this proceeding.
(CIT Slip Op. 12-102, dated 08/02/12, Judge Stanceu)