Nmb Singapore Ltd. v. U.S.
| Citation | 288 F.Supp.2d 1306 |
| Decision Date | 03 September 2003 |
| Docket Number | Court No. 00-07-00373.,SLIP OP. 03-115. |
| Parties | NMB SINGAPORE LTD. and Pelmec Industries (PTE) Ltd.; NSK-RHP Europe Ltd., RHP Bearings Ltd. and NSK Bearings Europe Ltd.; SKF USA Inc., SKF Industrie S.p.A., SKF France S.A., Sarma and SKF GmbH; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation, NTN Driveshaft Incorporated, NTN-BCA Corporation and NTN Corporation, Plaintiffs, and THE Barden Corporation (U.K.) Limited and The Barden Corporation; FAG Italia S.p.A., FAG Kugelfischer Georg Schafer AG and FAG Bearings Corporation, Plaintiff-Intervenors, v. UNITED STATES, Defendant, and Timken U.S. Corporation, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
White & Case LLP, Washington, DC (Walter J. Spak, Christopher F. Corr, Richard J. Burke, Lyle B. Vander Schaaf, Lynn H. Fabrizio and Frank H. Morgan) for NMB, plaintiffs.
Crowell & Moring LLP, Washington, DC (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson) for NSK-RHP, plaintiffs.
Steptoe & Johnson LLP, Washington, DC (Herbert C. Shelley, Alice A. Kipel, David N. Tanenbaum and Mary T. Mitchell) for SKF, plaintiffs.
Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Shannon N. Rickard) for NTN, plaintiffs.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York City (Max F. Schutzman, Andrew B. Schroth, Mark E. Pardo and Adam M. Dambrov) for FAG, plaintiff-intervenors.
Lyn M. Schlitt, General Counsel; James M. Lyons, Deputy General Counsel, Office of the General Counsel, United States International Trade Commission (Mary Elizabeth Jones and Andrea C. Casson) for the United States, defendant.
Stewart and Stewart (Terence P. Stewart, Geert De Prest, Amy A. Karpel and Lane S. Hurewitz) for Timken U.S. Corporation, defendant-intervenor.1
This consolidated action concerns the claims raised by plaintiffs, NMB Singapore Ltd. and Pelmec Industries (PTE) Ltd. (collectively "NMB"), NSK-RHP Europe Ltd., RHP Bearings Ltd. and NSK Bearings Europe Ltd. (collectively "NSK-RHP"), SKF USA Inc., SKF Industrie S.p.A., SKF France S.A., SARMA and SKF GmbH (collectively "SKF"), NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation, NTN Driveshaft Incorporated, NTN-BCA Corporation and NTN Corporation (collectively "NTN"), and plaintiff-intervenors, The Barden Corporation (U.K.) Limited, The Barden Corporation, FAG Italia S.p.A., FAG Kugelfischer Georg Schafer AG and FAG Bearings Corporation (collectively "FAG"), who move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the United States International Trade Commission's ("Commission" or "ITC") five-year sunset review final determination, entitled Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 65 Fed.Reg. 39,925 (June 28, 2000), in which the ITC found inter alia that "revocation of the antidumping duty orders on ... [ball] bearings from ... France, Germany, Italy, Japan, Singapore, and the United Kingdom would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time." The Commission's complete determination was published in Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom ("Final Determination"), Inv. Nos. AA1921-143, 731-TA-341, 731-TA-343-345, 731-TA-391-397, and 731-TA-399 (Review), USITC Pub. 3309 (June 2000).
Specifically, NMB contends that the ITC erred in: (1) cumulating the subject imports from Singapore with other subject imports; and (2) determining that revocation of the antidumping duty orders with respect to subject imports would likely lead to continuation or recurrence of material injury.
NSK-RHP contends that the ITC erred in: (1) not treating aerospace drive path bearings as a separate like product from ball bearings; (2) cumulating the subject imports from the United Kingdom with other subject imports; and (3) determining that revocation of the antidumping duty orders with respect to subject imports would likely lead to continuation or recurrence of material injury.
SKF contends that the ITC erred in: (1) cumulating the subject imports from France, Germany, and Italy with other subject imports; and (2) determining that revocation of the antidumping duty orders with respect to subject imports would likely lead to continuation or recurrence of material injury.
NTN contends that the ITC erred in: (1) not treating wheel hub units as a separate like product from ball bearings; (2) not treating aerospace drive path bearings as a separate like product from ball bearings; (3) cumulating the subject imports from Japan with other subject imports; (4) determining the conditions of competition in the domestic ball bearing industry; and (5) determining that revocation of the antidumping duty orders with respect to subject imports would likely lead to continuation or recurrence of material injury.
FAG contends that the ITC erred in cumulating the subject imports from Italy and the United Kingdom with other subject imports.
In May 1989, the ITC determined that an industry in the United States was being materially injured as a result of less than fair value ("LFTV") imports of ball bearings from France, Germany, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand and the United Kingdom ("Original Determination"), Inv. Nos. 303-TA-19 and 20 (Final) and 731-TA-391-399 (Final), USITC Pub. 2185 (May 1989). The Department of Commerce ("Commerce") subsequently published antidumping duty orders covering the subject merchandise from the aforementioned countries on May 15, 1989. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, 54 Fed.Reg. 20,900; Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, Spherical Plain Bearings, and Parts Thereof From France, 54 Fed.Reg. 20,902; Antidumping Duty Orders: Ball Bearings and Cylindrical Roller Bearings, and Parts Thereof From Italy, 54 Fed.Reg. 20,903; Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904; Antidumping Duty Order: Ball Bearings and Parts Thereof From Romania, 54 Fed.Reg. 20,906; Antidumping Duty Order of Sales at Less Than Fair Value: Ball Bearings and Parts Thereof From Singapore, 54 Fed. Reg. 20,907; Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Parts Thereof From Sweden, 54 Fed.Reg. 20,907; and Antidumping Duty Orders and Amendments to the Final Determinations of Sales at Less Than Fair Value: Ball Bearings, and Cylindrical Roller Bearings and Parts Thereof From the United Kingdom, 54 Fed.Reg. 20,910.
On April 1, 1999, the Commission instituted five-year sunset reviews pursuant to 19 U.S.C. § 1675(c) (1994) to determine whether revocation of antidumping duty orders on certain bearings, including ball bearings from France, Germany, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, would likely lead to continuation or recurrence of material injury. See Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 64 Fed.Reg. 15,783 (April 1, 1999). On July 2, 1999, the Commission determined that it would conduct full reviews.2 See Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 64 Fed.Reg. 38,471 (July 16, 1999). A revised notice regarding scheduling and a public hearing was published on December 1, 1999. See Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 64 Fed.Reg. 67,304 (December 1, 1999). The Commission held a hearing on March 21, 2000. See Final Determination, USITC Pub. 3309, Vol. 1 at 2.
The Commission cumulated subject imports from France, Germany, Italy, Japan, Singapore and the United Kingdom,3 see id. at 33, and in June 2000, voted that revocation of the antidumping duty orders on the subject merchandise from those countries would likely lead to continuation or recurrence of material injury within a reasonably foreseeable time.4 See id. at 52. Plaintiffs inter alia challenge the Commission's cumulation as well as the Commission's affirmative determination upon cumulation. On November 3, 2000, this Court granted NMB's motion for preliminary injunction. An oral argument was held before this Court on October 10, 2001. Additionally, this Court on August 2, 2002, granted NSK-RHP's motion for preliminary injunction.
The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i)(I) (2000) and 28 U.S.C. § 1581(c) (2000).
The Court will uphold the Commission's final determination in a full five-year sunset review unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (1994); see NTN Bearing Corp. of America v. United States, 24 CIT 385, 389-90, 104 F.Supp.2d 110, 115-16 (2000) (). " " Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, ...
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