926 F.3d 1291
Fed. Cir.2019Background
- Commerce revoked antidumping orders on ball bearings from Japan and the U.K. in 2011, later reinstated those orders after appellate litigation; Commerce then resumed administrative reviews for May 1, 2010–April 30, 2011 and sent a quantity-and-value questionnaire in Dec. 2013.
- BMW requested review initially but did not respond to Commerce’s questionnaire or withdraw its review request after the reinstatement; other respondents did respond and one cooperating mandatory respondent (NSK) provided transaction-specific margins.
- Commerce applied adverse facts available (AFA) for BMW and initially assigned a 254.25% AFA rate, later reduced on remand to 126.44% based on NSK transaction-specific margins forming a “closely‑connected range.”
- BMW challenged (1) Commerce’s authority to resume a discontinued review and (2) that the 126.44% AFA rate was punitive, aberrational, and unsupported by substantial evidence.
- The Court of International Trade upheld both Commerce’s resumption and the 126.44% rate; the Federal Circuit affirmed resumption but vacated and remanded the AFA‑rate decision, concluding Commerce failed to explain why 126.44% was not unduly punitive given BMW’s mitigating procedural circumstances.
Issues
| Issue | Plaintiff's Argument (BMW) | Defendant's Argument (U.S./Commerce) | Held |
|---|---|---|---|
| Whether Commerce lawfully resumed discontinued administrative reviews after revocation and later reinstatement of antidumping orders | Revocation notice ‘‘discontinued’’ reviews and thereby terminated them; Commerce had to initiate new reviews and meet statutory deadlines | Statute silent; Commerce permissibly resumed prior reviews, complied with procedural steps, and could suspend deadlines pending appeal | Commerce permissibly resumed the reviews (Chevron deference) |
| Whether the 126.44% AFA rate was punitive/unsupported by substantial evidence | Rate is excessive and disproportionate given BMW’s lack of awareness and procedural irregularities; Commerce failed to address BMW’s culpability or mitigating circumstances | Rate derived from actual transaction‑specific margins of cooperating respondent (NSK); Commerce need not consider culpability when choosing rate and used a non‑aberrational, deterrent figure | VACATED and REMANDED: Commerce must articulate how the selected AFA rate is not unduly punitive in light of BMW’s factual circumstances |
Key Cases Cited
- Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir. 2016) (burden to create an adequate record lies with interested parties; AFA discretion limited by facts of case)
- F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (AFA must be a reasonably accurate estimate, not punitive or aberrational)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (requirements before making an adverse inference; no mens rea requirement)
- KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (Commerce may assign highest calculated rate to uncooperative parties depending on facts)
- Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 (Fed. Cir. 2002) (deference to Commerce in AFA selection when tied to record information)
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990) (using highest prior margin as probative evidence of current margins)
- Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (notice and suspension-of-liquidation rules following adverse CIT decision)
- SEC v. Chenery Corp., 318 U.S. 80 (U.S. 1943) (agency must articulate the considerations underlying its action for meaningful judicial review)