BMW of North America LLC v. United States
2017 CIT 109
| Ct. Intl. Trade | 2017Background
- Commerce issued an antidumping duty order on ball bearings from the U.K. in 1989 and initiated the 2010–2011 administrative review in 2011; the order was briefly revoked and later reinstated, resuming the review.
- In the Final Results (Jan./Feb. 2015), Commerce found BMW uncooperative, applied adverse facts available (AFA), and assigned BMW a 254.25% dumping margin drawn from the petition.
- BMW challenged Commerce’s authority to resume the review, the application of AFA, and Commerce’s use of the 254.25% petition rate; the court upheld resumption and AFA but remanded the petition-rate selection for inadequate corroboration.
- On remand Commerce declined to rely on the petition rate and instead selected a transaction-specific margin of 126.44% (derived from NSK’s transactions) as the AFA rate.
- BMW challenged the remand redetermination as relying on an aberrational, punitive, and commercially unrelated rate; Commerce defended the selection as the highest non‑aberrational transaction-specific margin and as primary information not requiring corroboration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to resume discontinued administrative review | Commerce lacked authority to resume the review after revocation | Commerce properly reinstated and resumed reviews after court of appeals decision | Court previously sustained Commerce's authority to resume the review |
| Application of AFA against BMW | AFA was improper because BMW did not get adequate opportunity / cooperation concerns | BMW failed to act to the best of its ability; AFA was appropriate | Court previously sustained Commerce's application of AFA |
| Use of 254.25% petition rate as AFA | Rate was not corroborated; selection unsupported by substantial evidence | Commerce relied on petition rate and asserted corroboration from other record rates | Court remanded: Commerce failed to adequately corroborate the petition rate |
| Remand selection of 126.44% transaction‑specific margin | Rate is aberrational, punitive, and not tied to BMW's commercial reality | Rate is a transaction‑specific margin from this review (primary information), not requiring corroboration; it’s highest non‑aberrational margin to induce cooperation | Court sustained remand: 126.44% is supported by substantial evidence and is non‑aberrational; Commerce complied with remand order |
Key Cases Cited
- Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir. 2016) (primary information from the instant review may be used for AFA without corroboration)
- F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (AFA rate must not be aberrational or punitive)
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (standard for reviewing Commerce AFA and substantial‑evidence review)
- NSK Corp. v. U.S. Int'l Trade Comm'n, 716 F.3d 1352 (Fed. Cir. 2013) (court of appeals decision leading to reinstatement of antidumping order)