Appeal from the United States Court of International Trade in No. 09-CV-0052, Chief Judge Timothy C. Stanceu.
STEPHANIE MANAKER BELL, Stewart and Stewart of Washington, DC, argued for defendant-appellant. With her on the brief were TERENCE P. STEWART and WILLIAM A. FENNELL.
DIANA DIMITRIUC QUAIA, Arent Fox LLP, of Washington, DC, argued for plaintiff-appellee. With her on the brief was JOHN M. GURLEY.
Before NEWMAN, PLAGER, and MOORE, Circuit Judges.
Moore, Circuit Judge.
The Timken Company (Timken) appeals from the judgment of the United States Court of International Trade affirming the United States Department of Commerce's (Commerce) calculation of an antidumping duty margin for Peer Bearing Company - Changshan's (CPZ) imports. For the reasons below, we vacate and remand.
This case involves Commerce's administrative review of CPZ's entry of tapered roller bearings tat were subject to an Antidumping Duty Order. CPZ imported the bearings by selling them to an unaffiliated U.S. importer. The U.S. importer then sold the bearings to CPZ's U.S. affiliate, Peer Bearing Co. (Peer), which then resold them to unaffiliated U.S. customers.
After instituting review, Commerce issued an initial questionnaire requiring CPZ to identify whether its sales of bearings qualified either as export price (EP) sales or as constructed export price (CEP) sales. This classification determines which price Commerce uses as the U.S. price when calculating CPZ's antidumping duty margin for the bearings. If CPZ's sales are properly classified as EP sales, Commerce uses data reflecting the price of CPZ's sales to its unaffiliated U.S. importer, i.e., the EP data. If CPZ's sales are
properly classified as CEP sales, Commerce uses data reflecting the price of Peer's sales to its U.S. customers, i.e., the CEP data. CPZ responded that its sales were properly classified as CEP sales and provided Commerce with the CEP data for its bearing sales. It did not provide the corresponding EP data.
Timken, an intervening domestic bearing producer, submitted comments to Commerce, urging Commerce to require CPZ to also provide the EP data so that Commerce could calculate CPZ's margin on an EP basis. Commerce did not require CPZ to submit the EP data at that time. Instead, in its Preliminary Results, Commerce calculated CPZ's margin on a CEP basis, using the CEP data that CPZ provided. Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 73 Fed. Reg. 41033 (Dep't of Commerce July 17, 2008) ( Preliminary Results ). After Commerce issued the Preliminary Results, Timken again submitted comments arguing that the margin should be calculated on an EP basis.
In its Final Results, Commerce changed course and calculated CPZ's margin on an EP basis. Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 74 Fed. Reg. 3987, 3988 (Dep't of Commerce Jan. 22, 2009) ( Final Results ). However, because CPZ had previously provided Commerce with only CEP data, the record contained only limited EP data relating to a small subset of the imported bearings. Commerce used this limited data to estimate the EP prices for each imported product. J.A. 2181. Based on its estimated EP prices, Commerce calculated a margin of 92.84%. Final Results, 74 Fed. Reg. at 3989. The Court of International Trade held that Commerce's methods for estimating ...