BMW of North America LLC v. United States

Slip Op. 17-22
UNITED STATES COURT OF INTERNATIONAL TRADE
BMW OF NORTH AMERICA LLC,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
THE TIMKEN COMPANY,
Defendant-Intervenor.
Before: Jennifer Choe-Groves, Judge
Court No. 15-00052
OPINION AND ORDER
[Sustaining in part and remanding in part the U.S. Department of Commerce’s final
determination in the 2010–2011 administrative review of the antidumping duty order on ball
bearings and parts thereof from the United Kingdom.]
Dated:
Max F. Schutzman, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY
and Washington, DC, argued for Plaintiff BMW of North America LLC. With him on the brief
was Kavita Mohan.
Tara Kathleen Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant United States. With her on the
brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Jessica
Marie Link, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department
of Commerce, of Washington, DC.
Geert M. De Prest, Stewart and Stewart, of Washington, DC, argued for Defendant-Intervenor
The Timken Company. With him on the brief was Terence Patrick Stewart.
March 2, 2017
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 1 of 18

Court No. 15-00052 	Page 2
Choe-Groves, Judge: This matter is before the court on a Rule 56.2 motion for judgment
on the agency record filed by Plaintiff BMW of North America (“Plaintiff” or “BMW”). See
Pl.’s Rule 56.2 Mot. J. Upon Agency R., Sept. 18, 2015, ECF No. 29 (“Pl.’s Mem. Supp.”).
Plaintiff brings this action pursuant to 28 U.S.C. § 1581(c) (2012) 1 for judicial review of
decisions made by the U.S. Department of Commerce (“Commerce” or “Department”) during
the administrative review of the antidumping order on ball bearings and parts thereof from the
United Kingdom. See Compl. Feb. 27, 2016, ECF No. 7; See Ball Bearings and Parts Thereof
From Japan and the United Kingdom, 80 Fed. Reg. 4,248 (Dep’t Commerce Jan. 27, 2015) (final
results for administrative review 2010-2011), as amended, 80 Fed. Reg. 9,694 (Dep’t Commerce
February 24, 2015) (amended final results for administrative review 2010-2011) (collectively,
“Final Results”) 2 and accompanying Issues & Decision Memorandum for the Antidumping Duty
Administrative Review of Ball Bearings and Parts Thereof from the United Kingdom; 2010–
2011, A-412-801, (Jan. 22, 2015), available at http://enforcement.trade.gov/frn/summary/
multiple/2015-01481-1.pdf (last visited Feb. 22, 2017) (“I&D Memo”). For the reasons set forth
below, the court upholds Commerce’s determination to resume the administrative review and
apply an adverse inference in selecting from facts otherwise available against Plaintiff, but
remands for redetermination Commerce’s decision to assign Plaintiff a 254.25 percent dumping
margin.
1 All citations to Title 28 of the U.S. Code are to the 2012 edition.
2 Commerce simultaneously conducted the 2010–2011 administrative reviews of the two
separate antidumping orders on ball bearings and parts thereof from Japan and the United
Kingdom. See Final Results. This action, however, only concerns Commerce’s determinations
in the administrative review of the antidumping duty order on merchandise from the United
Kingdom.
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 2 of 18

Court No. 15-00052 	Page 3
BACKGROUND
Commerce issued an antidumping order on ball bearings and parts thereof from the
United Kingdom on May 15, 1989. See Ball Bearings, and Cylindrical Roller Bearings and Parts
Thereof From the United Kingdom, 54 Fed. Reg. 20,910 (Dep’t Commerce May 15, 1989)
(antidumping duty orders and amendments to the final determinations of sales at less than fair
value) (“Order”). Commerce and the U.S. International Trade Commission (“ITC”) instituted
the second sunset review of the Order in 2005. See Initiation of Five-year (“Sunset”) Reviews,
70 Fed. Reg. 31,423, 31,423 (Dep’t Commerce June 1, 2005); Certain Bearings From China,
France, Germany, Italy, Japan, Singapore, and the United Kingdom, 70 Fed. Reg. 31,531, 31,532
(ITC Jun. 1, 2005) (institution of five-year reviews). The ITC determined that revocation of the
Order would lead to continuation or recurrence of material injury to the domestic industry and
various parties challenged the decision at the U.S. Court of International Trade (“CIT”). See
Certain Bearings From China, France, Germany, Italy, Japan, Singapore, and the United
Kingdom, 71 Fed. Reg. 51,850 (ITC Aug. 31, 2006) (final results determination in five-year
reviews); NSK Corp. v. United States, 35 CIT ___, 774 F. Supp. 2d. 1296 (2011).
While the ITC’s injury determination was on appeal, Commerce published a notice of
opportunity to request administrative review of the Order for entries of the subject merchandise
from May 1, 2010–April 30, 2011. See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation, 76 Fed. Reg. 24,460 (Dep’t Commerce May 2, 2011) (opportunity to
request administrative review). Plaintiff filed a request for an administrative review of the Order
on May 31, 2011. See BMW's Request for Administrative Review of the Antidumping Duty
Order on Ball Bearings and Parts Thereof From The United Kingdom, PD 3, Doc. No. 4977
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 3 of 18

Court No. 15-00052 	Page 4
(May 31, 2011). 	Commerce published its notice of initiation of the administrative review on
June 28, 2011. See Initiation of Antidumping and Countervailing Duty Administrative Reviews
and Request for Revocation in Part, 76 Fed. Reg. 37,781 (Dep’t Commerce Jun. 28, 2011)
(“Notice of Initiation”).
Pursuant to the CIT’s decision in NSK Corp. v. United States, 35 C.I.T. __, 774 F. Supp.
2d 1296 (2011), Commerce published a notice on July 15, 2011 announcing that: 1) the Order
was revoked; 2) all ongoing administrative reviews were “discontinued,” 3) the collection of
cash deposits was “discontinued,” and 4) liquidation was suspended for unliquidated entries of
ball bearings entered or withdrawn from a warehouse between July 11, 2005 through April 30,
2011, until a final and conclusive court decision. See Ball Bearings and Parts Thereof From
Japan and the United Kingdom, 76 Fed. Reg. 41,761 (Dep’t Commerce Jul. 15, 2011)
(revocation of antidumping duty orders) (“Revocation Notice”). The Court of Appeals for the
Federal Circuit reversed the CIT decision in NSK Corp. and ordered the CIT to reinstate the
ITC’s affirmative injury determination. See NSK Corp. v. U.S. Intern. Trade Com’n, 716 F.2d
1352 (Fed. Cir. 2013). The CIT then reinstated the ITC’s affirmative injury determination in a
final judgment. See NSK Corp. v. U.S. Intern. Trade Com’n, Slip Op. 13-143 (November 18,
2013).
Following the reinstatement of the ITC’s determination, Commerce published a notice
that reinstated the Order and resumed all discontinued administrative reviews, including the 2010
– 2011 period of review. Ball Bearings and Parts Thereof From Japan and the United Kingdom,
78 Fed. Reg. 76,104 (Dep’t Commerce Dec. 16, 2013) (notice of reinstatement of antidumping
duty order, resumption of administrative reviews, and advance notification of sunset reviews)
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 4 of 18

Court No. 15-00052 	Page 5
(“Reinstatement Notice”). Commerce stated that it intended to issue preliminary results no later
than 245 days after the publication of the Reinstatement Notice and that the deadline for
withdrawing any review requests would be 90 days after the date of the publication of the
Reinstatement Notice. Id. at 76,105–06. Prior to publication of the Reinstatement Notice,
Commerce sent an email on December 12, 2013 to counsel for parties subject to the review,
which indicated that a Quantity and Value (“Q&V”) questionnaire would be forthcoming. See
U.S. Department of Commerce Memo to File Regarding E-mail Sent to BMW’s Counsel
Forwarding the Quantity and Value Questionnaire, PD 65, bar code 3229044-01 (Sept. 17, 2014)
(“E-mail to Counsel”). 	The Department sent Q&V questionnaires to all interested parties and
requested their responses by January 6, 2014.3 See U.S. Department of Commerce Quantity and
Value Questionnaire, PD 6, bar code 3167852-01 (Dec. 12, 2013); U.S. Department of
Commerce Letter to Interested Parties Granting Extension of Time to File Quantity and Value
Questionnaire Responses, PD 9, bar code 3169160-01 (Dec. 20, 2013). In the Q&V
questionnaire cover letter, Commerce reminded the parties that, as a consequence of failing to
respond with the requested information, the Department “may find that [the party] failed to
cooperate by not acting to the best of [the party’s] ability to comply with the request for
information, and may use an inference that is adverse to [the party’s] interests in selecting from
the facts otherwise available, in accordance with [19 U.S.C. § 1677e (2012)4 ].” Id. at 2. BMW
neither sent a Q&V questionnaire response to Commerce, nor withdrew its request for a review.
3 The original deadline for Q&V responses was scheduled for December 26, 2013, however,
after a request for an extension of time, Commerce extended the deadline to January 6, 2014.
4 All citations to Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the
U.S. Code, 2012 edition.
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 5 of 18

Court No. 15-00052 	Page 6
See Decision Memorandum for Preliminary Results of Antidumping Duty Administrative
Reviews: Ball Bearings and Parts Thereof From Japan and the United Kingdom; 2010-2011 at 5,
A-412-801, (Sept. 17, 2014), available at http://enforcement.trade.gov/frn/summary/
multiple/2014-22628-1.pdf (last visited Feb. 22, 2017) (“Preliminary Results Memo”).
The Department selected NSK Europe Ltd. and NSK Bearings Europe Ltd. (collectively,
“NSK”) as the sole mandatory respondent. See Ball Bearings and Parts Thereof From Japan and
the United Kingdom, 79 Fed. Reg. 56,771, 56,772 (Dep’t Commerce Sept. 23, 2014)
(preliminary results of the administrative review, 2010-2011) (“Preliminary Results”). In the
preliminary results, Commerce determined that Plaintiff had not cooperated to the best of its
ability in responding to the Q&V questionnaire. See id. Commerce applied an adverse inference
in selecting from facts otherwise available (“AFA”) and assigned Plaintiff a dumping margin of
254.25 percent, selected from the petition. See id.; Preliminary Results Memo at 7. BMW
subsequently filed a case brief challenging this determination. See BMW’s United Kingdom
Case Brief, PD 70, bar code 3237084-01 (Oct. 23, 2014) (“BMW’s Case Brief”). On January 27,
2015, the Department published its final results and assigned Plaintiff a dumping margin of
254.25 percent. See Final Results, 80 Fed. Reg. at 4,249. Plaintiff subsequently brought this
action challenging Commerce’s resumption of the administrative review, determination to apply
AFA, and selection of the petition rate in applying AFA. See Compl. ¶¶ 19–24.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over an action challenging the final determination in an
administrative review of an antidumping duty order. See 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c). The court will uphold Commerce’s determinations, findings, or conclusions
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 6 of 18

Court No. 15-00052 	Page 7
unless they are unsupported by substantial evidence on the record or otherwise not in accordance
with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
Plaintiff asserts that Commerce (1) did not have the authority to resume a discontinued
administrative review, (2) should not have applied an adverse inference in calculating the
dumping margin, and (3) should not have selected the petition rate of 254.25 percent as the rate
calculated using an adverse inference. See Pl.’s Mem. Supp. 10–33.
I. Resuming the Administrative Review
Plaintiff argues that Commerce’s resumption of the administrative review was not in
accordance with the law because Commerce resumed the review after a two-year hiatus, rather
than initiating a new review. See Pl.’s Mem. Supp. 10–15. Plaintiff notes that there are no cases
in which Commerce has automatically resumed a review after an antidumping order was revoked
and subsequently reinstated following a court decision. See id. at 13. The court must determine
if Commerce’s actions in this case were consistent with its statutory obligations and thereby in
accordance with the law.
The antidumping statute addresses Commerce’s responsibility to conduct administrative
reviews and requires in relevant part:
At least once during each 12-month period beginning on the anniversary of the
date of publication of . . . an antidumping duty order under this subtitle . . . the
administering authority, if a request for such a review has been received and after
publication of notice of such review in the Federal Register, shall —
(A) review and determine the amount of any net countervailable subsidy,
(B) review, and determine (in accordance with paragraph (2)), the amount
of any antidumping duty, and
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 7 of 18

Court No. 15-00052 	Page 8
(C) review the current status of, and compliance with, any agreement by
reason of which an investigation was suspended, and review the amount of
any net countervailable subsidy or dumping margin involved in the
agreement,
and shall publish in the Federal Register the results of such review, together with
notice of any duty to be assessed, estimated duty to be deposited, or investigation
to be resumed.
19 U.S.C. § 1675(a)(1). Congress imposed this duty on the Department to conduct an
administrative review after receiving a request for a review and Commerce has issued additional
regulatory guidance detailing procedures for conducting administrative reviews. See, e.g., 19
C.F.R. § 351.213 (outlining rules for review requests and conduct during reviews); 19 C.F.R.
§ 351.221 (discussing administrative review procedures). The Department must first publish a
notice informing the public that Commerce received a request and that it will initiate a review.
See 19 U.S.C. § 1675(a)(1); 19 C.F.R. § 351.221(b). Commerce must publish the preliminary
results detailing the preliminary determinations and the final results that include the final
calculated rates. See id. For the court to uphold Commerce’s determination in this instance,
Commerce’s actions must comport with its statutory and regulatory obligations. For the reasons
set forth below, the court finds that the Department has acted in accordance with the law.
Congress instructed that Commerce must conduct a review when it receives a request. In
this case, the Department took steps to administer a review consistent with its statutory
obligations and its own regulations. Commerce initiated the review in May 2011 after it received
a request for review from several parties, including Plaintiff. See Notice of Initiation, 76 Fed.
Reg. at 37,782. Commerce published a notice in the Federal Register in July 2011 informing the
public that it had received a request and that it was initiating a review. See id. Following the
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 8 of 18

Court No. 15-00052 	Page 9
resumption of the review, the Department published its preliminary determinations in the Federal
Register in September 2014. See Preliminary Results, 79 Fed. Reg. at 56,772–73. The
Department published its final results in January 2015, which detailed the final calculated
dumping rates for the review period consistent with both statute and regulations. See Final
Results, 80 Fed. Reg. at 4,249–50. Commerce’s actions complied with its statutory obligations
that were triggered when it received the request for review.
When Commerce resumed the administrative review, it sent an email to counsel from the
initial review (including Plaintiff’s counsel) to inform them that a Q&V questionnaire was
forthcoming, published a Federal Register notice that it was resuming the “discontinued”
reviews, and posted the Q&V questionnaire on the ACCESS website. See E-mail to Counsel;
Reinstatement Notice, 78 Fed. Reg. at 76,105. Commerce also extended the opportunity to all
parties to withdraw their previous requests for review. See Reinstatement Notice, 78 Fed. Reg.
at 76,105–06. All parties chose to withdraw their requests, except for Plaintiff. See Preliminary
Results Memo. The Department’s actions support the court’s conclusion that the Department
acted in accordance with the law after it received a request for review.
Plaintiff argues that the Revocation Notice not only revoked the Order but quashed any
pending administrative reviews related to the Order. See Pl.’s Mem. Supp. 12. Plaintiff has
failed, however, to cite any direct authority for this proposition and the argument is inconsistent
with language in the Revocation Notice. Commerce instructed U.S. Customs and Border
Protection in the Revocation Notice to suspend liquidation with regard to entries subject to the
Order pending a “final and conclusive” court decision. See Revocation Notice, 76 Fed. Reg. at
41,763. Commerce thus acknowledged the ongoing legal action and recognized that the Order
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 9 of 18

Court No. 15-00052 	Page 10
could be reinstated at a later date. Because the CIT decision prompting the revocation was
challenged on appeal, the revocation could not be definitive until there was a “final and
conclusive” court decision. See Timken Co. v. United States, 893 F.2d 337, 339–41 (Fed. Cir.
1990); Hosiden Corp. v. Advanced Display Mfrs. of Am., 85 F.3d 589, 590–91 (Fed. Cir. 1996).
The administrative review in this case was linked directly to the validity of the underlying
antidumping order. See 19 U.S.C. § 1675(a) (directing Commerce to review antidumping duty
orders periodically upon a timely request). Because the underlying order survived revocation
pending a “final and conclusive” court decision, the attendant administrative review in this case
survived revocation. Moreover, because BMW had the opportunity to withdraw its request for
review but did not do so, the administrative review process was essentially started anew by
Commerce when it was resumed. The statute permitted Commerce to resume the administrative
review without having to initiate a new review.
Viewing the totality of Commerce’s actions, the court finds that the Department’s
resumption of the 2010–2011 administrative review was consistent with the administrative
review statute and Commerce’s regulations. Therefore, Commerce acted in accordance with the
law.
II. Application of AFA
Plaintiff argues that Commerce’s use of AFA was not supported by substantial evidence.
See Pl.’s Mem. Supp. 15–27. Plaintiff asserts that there was no rational relationship between the
purpose of the AFA statute and the imposition of an AFA rate against Plaintiff in this case. See
id. at 18. Plaintiff contends that Commerce should have contacted Plaintiff’s counsel after it
discovered that Plaintiff did not file a Q&V questionnaire response. See id. at 20–21.
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 10 of 18

Court No. 15-00052 	Page 11
Commerce shall use the facts otherwise available in reaching the applicable
determination when it finds that an interested party withholds information that has been
requested, fails to provide such information by the deadlines for submission, or significantly
impedes a proceeding or provides information that cannot be verified. See 19 U.S.C. § 1677e(a).
If Commerce “finds that an interested party has failed to cooperate by not acting to the best of its
ability to comply with a request for information,” the Department “may use an inference that is
adverse to the interests of that party in selecting from among the facts otherwise available.” 19
U.S.C. § 1677e(b).
The Court of Appeals for the Federal Circuit has explained that in determining if a
respondent complied to the “best of its ability,” Commerce must assess whether a respondent has
“put forth its maximum effort to provide Commerce with full and complete answers to all
inquiries . . . [and], [w]hile the standard does not require perfection and recognizes that mistakes
sometimes occur, it does not condone inattentiveness, carelessness, or inadequate record
keeping.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). Here,
Plaintiff failed to provide any information requested by Commerce during the administrative
review and submitted a case brief after Commerce published the Preliminary Results.
Plaintiff admitted that it failed to provide the responses to the Q&V questionnaire
because: (i) Plaintiff’s counsel had “forgotten that an administrative review request had even
been filed,” (ii) the attorney responsible for filing and monitoring the administrative review
request left the firm representing Plaintiff, (iii) Plaintiff’s counsel did not recall seeing an email
from Commerce notifying the interested parties of the resumption of the review, and (iv)
Plaintiff’s personnel misfiled the electronic filings in the review proceedings. See BMW’s Case
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 11 of 18

Court No. 15-00052 	Page 12
Brief at 5–7. Plaintiff’s omissions are notable because Plaintiff itself submitted a request for the
administrative review in May 2011 and “[e]very other respondent in this review responded to the
Q&V questionnaire.” I&D Memo at 12. Plaintiff’s failure to monitor the status of the litigation
that led to the revocation of the very order that Plaintiff requested to be reviewed further supports
Commerce’s conclusion that Plaintiff failed to act to the best of its ability. See id. at 9–13.
Based on these factors, the court finds that Commerce’s AFA determination was supported by
substantial evidence.
III. AFA Rate
Plaintiff argues that Commerce’s application of the 254.25 percent petition rate as the
AFA rate was not supported by substantial evidence. See Pl.’s Mem. Supp. 27–33.
When Commerce applies AFA, it may use information from the petition, a final
determination in the investigation, any previous review, or any other information on the record.
See 19 U.S.C. § 1677e(b). When the Department relies on secondary information, 5 such as the
petition, “rather than on information obtained in the course of an investigation or review,
[Commerce] shall, to the extent practicable, corroborate that information from independent
sources that are reasonably at their disposal.” 19 U.S.C. § 1677e(c); see also Statement of
Administrative Action Accompanying Uruguay Round Agreements Act, H.R. Doc. 103-316, 870
5 “Secondary information is 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 Uruguay Round Agreements Act, H.R. Doc. 103-316, at
870 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199 (1994).
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 12 of 18

Court No. 15-00052 	Page 13
(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199 (1994) (“SAA”).6 The SAA defines
“corroborate” to mean that Commerce will satisfy itself “that the secondary information to be
used has probative value.” SAA at 870; see also 19 C.F.R. § 351.308. As the Federal Circuit
has made clear, the purpose of AFA is to “provide respondents with an incentive to cooperate,
not to impose punitive, aberrational, or uncorroborated margins.” F.lli De Cecco Di Filippo Fara
S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000). The Department is
obligated, therefore, to not only adequately corroborate a rate derived from a secondary source,
but to ensure that rate is not punitive or aberrational. See id.
Earlier decisions from the Court of Appeals for the Federal Circuit indicated that
Congress intended the corroboration requirement to impose an obligation on Commerce that an
AFA rate be a “reasonably accurate estimate of the respondents’ actual rate, albeit with some
built-in increase intended as a deterrent to non-compliance.” Id. Subsequently, the court found
that “[a]lthough Commerce has discretion in choosing from a list of secondary information to
support its adverse inferences, Commerce must select secondary information that has some
grounding in commercial reality.” Gallant Ocean (Thail) Co. v. United States, 602 F.3d 1319,
1324 (Fed. Cir. 2010). In a recent decision, the court sought to clarify Commerce’s obligations
by noting that although “commercial reality” and “accurate” are “reliable guideposts for
Commerce’s determinations, [t]hose terms must be considered against what the antidumping
6 Congress recently amended this subsection of 19 U.S.C. § 1677e relating to the corroboration
of secondary information. See Trade Preferences Extension Act of 2015, Pub. L. No. 114-27,
129 Stat. 362 (2015). That amendment does not apply in this case because the amendment was
not retroactive and took effect on June 29, 2015, after Commerce made its determination in this
case. See Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1352 (Fed. Cir.
2015).
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 13 of 18

Court No. 15-00052 	Page 14
statutory scheme demands.” Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1343 (Fed.
Cir. 2016). The Nan Ya court explained that the “case law and the statute thus teach that a
Commerce determination (1) is ‘accurate’ if it is correct as a mathematical and factual matter,
thus supported by substantial evidence; and (2) reflects ‘commercial reality’ if it is consistent
with the method provided in the statute, thus in accordance with law.” Id. at 1344. This
clarification was not rendered, however, by an en banc review, was discussed in dicta, and did
not overrule any earlier decisions. See id. While the Nan Ya court clarified certain aspects
Commerce’s analysis regarding secondary information, the court is still bound to ensure that any
determinations regarding rate selection are supported with substantial evidence and consistent
with controlling precedent.
The selection of a high rate based on secondary information, even one significantly
higher than the final calculated margins, can withstand judicial scrutiny if Commerce is able to
appropriately corroborate that rate. See KYD, Inc. v. United States, 607 F.3d 760, 765 (Fed. Cir.
2010); Gallant Ocean, 602 F.3d at 1323–24. If Commerce’s corroboration is not supported by
substantial evidence, however, then the court cannot sustain the AFA rate. Such a situation
exists here.
Commerce selected the petition rate of 254.25 percent to apply as the AFA rate against
Plaintiff. See I&D Memo at 13–15. The petition was originally filed with the Department on
March 31, 1988. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts
Thereof From the United Kingdom, 53 Fed. Reg. 15,081, 15,081 (Dep’t Commerce Apr. 27,
1988) (initiation of antidumping duty investigation) (referring to the date the petition was filed).
Although the statute grants Commerce the authority to select a petition rate as an AFA rate, the
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 14 of 18

Court No. 15-00052 	Page 15
statute further requires the Department to corroborate the use of such a rate, as it is derived from
a secondary source. See 19 U.S.C. § 1677e(b)–(c). The SAA notes the importance of
appropriate corroboration as “secondary information may not be entirely reliable because, for
example, as in the case of the petition, it is based on unverified allegations . . . .” SAA at 870.
Corroboration, as discussed above, requires Commerce to determine that there is evidence that
the secondary source rate has probative value. See 19 U.S.C. § 1677e(b)–(c); SAA at 870. The
petition rate used by Commerce here highlights the need for corroboration. Although the
petition alleged dumping at 254.25 percent, the two individually investigated parties received
rates of 61.14 percent and 44.02 percent, respectively, while the all others rate was calculated at
54.27 percent. See Order. Commerce considered the transaction specific margins it calculated
for the mandatory respondent, NSK, and decided that the petition rate had been corroborated
because (1) the petition rate fell within the range of transaction specific margins, and (2) the
petition rate was below the [[ 	]] top transaction specific margins calculated for NSK, which
were both [[ 	]] percent. See I&D Memo at 15.
Commerce’s explanation failed to adequately corroborate the petition rate and therefore
the application of the 254.25 percent rate was unsupported by substantial evidence. First,
Commerce failed to explain how the fact that the petition rate was numerically between the
[[ 	]] transaction-specific rates calculated for the mandatory respondent
was sufficient data to adequately corroborate the use of the 254.25 percent rate against Plaintiff.
Second, the Department did not adequately explain why the mere fact that NSK “had
transaction-specific dumping margins in excess of 254.25 percent,” I&D Memo at 15, was
sufficient to corroborate the probative value of the petition rate given that there were only [[ 	]]
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 15 of 18

Court No. 15-00052 	Page 16
rates calculated to be greater than the petition rate, which accounted for [[ 	]]
of the NSK’s total transactions for the review period. See Preliminary Calculation Memorandum
at 189, CD 36, bar code 3229548-01 (Sept. 19, 2014). While NSK’s top transaction-specific
rates were calculated at [[ 	]] percent, the record demonstrates that those rates are
aberrational given that the Department reviewed [[ 	]] transactions during the review period
and the final weighted margin was calculated to be a mere 1.43 percent. See Final Results, 80
Fed. Reg. at 9,695.
In the past, the use of a small number of transaction-specific margins has sufficiently
corroborated an AFA rate when such data was obtained from the non-cooperating party. See
Papierfabrik August Koehler Se v. United States, 843 F.3d 1373, 1380–82 (Fed. Cir. 2016);
PAM S.P.A. v. United States, 582 F. 3d 1336, 1340 (Fed. Cir. 2009); Ta Chen Stainless Steel
Pipe, Inc. v. United States, 298 F. 3d 1330, 1339 (Fed. Cir. 2002). In this case, however, the
Department’s corroboration relied solely on a small number of aberrational, transaction-specific
margins calculated using data obtained from the mandatory respondent. See, e.g., Gallant, 602
F.3d at 1324. The absence of information pertaining to the non-cooperating party does not
excuse Commerce from its obligation to corroborate the AFA rate. Also, the record appears to
be devoid of any discernable explanation as to how NSK’s aberrational, transaction-specific
margins corroborate the AFA rate assigned to Plaintiff. The court questions whether Commerce
could corroborate a rate from a nearly 30-year-old petition when it is evident from NSK’s
transaction specific margins and the ultimate weighted margin that a 254.25 percent dumping
margin has very little connection, if any, to BMW.
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 16 of 18

Court No. 15-00052 	Page 17
Commerce failed to corroborate the selected rate, rendering the AFA rate unsupported by
substantial evidence and inconsistent with Federal Circuit decisions. The court finds that the
AFA rate selected by Commerce and assigned to Plaintiff is not supported by substantial
evidence.
CONCLUSION
For the reasons set forth above, the court holds that (1) Commerce’s resumption of the
administrative review was in accordance with the law, (2) Commerce’s decision to apply AFA
was supported by substantial evidence, and (3) the AFA rate selected by Commerce was not
supported by substantial evidence. Therefore, in accordance with the foregoing, it is hereby
ORDERED that Commerce’s decision to resume the administrative review following the
reinstatement of the antidumping order is sustained; and it is further
ORDERED that Commerce’s decision to apply an adverse inference in selecting from
facts otherwise available is sustained; and it is further
ORDERED that this matter is remanded for Commerce to either (1) provide a new
corroboration analysis for the selected petition rate that is consistent with the agency’s
obligations and this opinion or (2) determine a new AFA rate consistent with the agency’s
obligations and this opinion; and it is further
ORDERED that Commerce shall file its remand determination with the court on or
before April 14, 2017; and it is further
ORDERED that the Parties shall file comments on the remand determination on or
before May 12, 2017; and it further
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 17 of 18

Court No. 15-00052 	Page 18
ORDERED that the Parties shall file any replies to the comments on or before May 26,
2017.
Dated: March 2, 2017 	/s/ Jennifer Choe-Groves
New York, New York 	Jennifer Choe-Groves, Judge
Case 1:15-cv-00052-JCG Document 74 Filed 03/13/17 Page 18 of 18