Nmb Singapore Ltd. v. U.S., SLIP OP. 04-96. Court No. 00-07-00373.

Decision Date05 August 2004
Docket NumberSLIP OP. 04-96. Court No. 00-07-00373.
Citation341 F.Supp.2d 1327
PartiesNMB 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.
CourtU.S. Court of International Trade

White & Case LLP, Washington, DC (Walter J. Spak, Christopher F. Corr, Lyle B. Vander Schaaf and Jonathan Seiger) for NMB Singapore Ltd. and Pelmec Industries (PTE) Ltd., plaintiffs.

Crowell & Moring LLP (Matthew P. Jaffe and Robert A. Lipstein) for NSK-RHP Europe Ltd., RHP Bearings Ltd. and NSK Bearings Europe Ltd., plaintiffs.

Steptoe & Johnson LLP, Washington, DC (Herbert C. Shelley) for SKF USA Inc., SKF Industrie S.p.A., SKF France S.A., Sarma and SKF GmbH, plaintiffs.

Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Shannon N. Rickard) for NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation, NTN Driveshaft Incorporated, NTN-BCA Corporation and NTN Corporation, plaintiffs.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York City (Max F. Schutzman) for The Barden Corporation (U.K.) Limited, The Barden Corporation, FAG Italia S.p.A., FAG Kugelfischer Georg Schafer AG and FAG Bearings Corporation, plaintiff-intervenors.

Lyn M. Schlitt, General Counsel; James M. Lyons, Acting General Counsel, Office of the General Counsel, United States International Trade Commission (Mary Elizabeth Jones), for the United States, defendant.

Stewart and Stewart, Washington, DC (Terence P. Stewart and Geert De Prest) for Timken U.S. Corporation, defendant-intervenor.

OPINION

TSOUCALAS, Senior Judge.

I. Standard of Review

The Court will uphold the agency's redetermination pursuant to the Court's remand 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) (2000). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted).

II. Background

On September 3, 2003, this Court issued an order directing the United States International Trade Commission ("ITC" or "Commission"), to: (1) "reconcile the error alleged by NMB with respect to NMB's sister company, if the Commission utilizes NMB's sister company in the Commission's cumulation determination"; (2) "explain how commodity-like the Commission deems [certain] antifriction bearings"; and (3) apply this Court's finding regarding the meaning of the term "likely" to the ITC's cumulation analysis and its determination regarding the effect of revoking the antidumping duty orders at issue. NMB Singapore Ltd. & Pelmec Indus. (PTE) Ltd. v. United States ("NMB Remand"), 27 CIT ___, ___, 288 F.Supp.2d 1306, 1352 (2003). The Commission submitted its views pursuant to NMB Remand on December 2, 2003, see Views of the Commission ("Remand Determination"), which involve the five-year sunset review final determination entitled Certain Bearings From China, France, Germany, Hungary. Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom ("Final Determination"), 65 Fed.Reg. 39,925 (June 28, 2000). The Commission found in the Remand Determination as it did in the Final Determination that, on a whole, "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 the continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time." Remand Determination at 3. The Commission specified that the proper definition of the term "likely" was applied throughout its sunset review determination, and asserted that it was proper to cumulate the subject imports because: (1) "subject imports from all six countries would be likely to have a discernible adverse impact on the domestic industry if the [antidumping duty orders at issue] were revoked"; (2) "a reasonable overlap of competition between the subject imports and the domestic like product is likely to exist if the orders were revoked" and (3) no significant differences exist between the conditions of competition among the subject countries. Id. at 5-6. Moreover, the Commission reasserted its position that NMB's sister company should not be excluded from the domestic industry since the appropriate circumstances to warrant such exclusion do not exist. See id. at 7-8.

On January 16, 2004, plaintiffs, NMB Singapore Ltd. and Pelmec Industries (PTE) Ltd. (collectively "NMB") and NSK-RHP Europe Ltd., RHP Bearings Ltd. and NSK Bearings Europe Ltd. (collectively "NSK-RHP") filed comments to the Remand Determination with this Court. Comments were also submitted by defendant-intervenor, Timken U.S. Corporation ("Timken") on January 16, 2004. Rebuttal comments were submitted by NMB on February 2, 2004, and by NSK and Timken on February 9, 2004. The Commission also filed reply comments on the Remand Determination on February 9, 2004.

III. Discussion
A. Contentions of the Parties
1. NSK-RHP's Contentions

Section 1675a(a)(7) of Title 19 of the United States Code states that for five-year reviews, the Commission "shall not cumulatively assess the volume and effects of imports of the subject merchandise in a case in which it determines that such imports are likely to have no discernable adverse impact on the domestic industry." According to NSK-RHP, the record demonstrates that subject imports from the United Kingdom are likely to have "no discernable adverse impact on the domestic industry" and, therefore, the Commission erred in cumulating subject imports. Comments on the Commission's Remand Determination ("NSK-RHP Comments") at 3 (emphasis omitted). NSK-RHP contends that the Commission improperly based its conclusion that cumulation was necessary on the following factors: (1) the subject industries in France, Germany, Italy, Japan, Singapore and the United Kingdom were export-oriented; (2) "the industry in each country had available, unused production capacity; and [(3)] four of the six countries were among the top five nations in the world for total bearing production." Id. at 3-4.

NSK-RHP specifically argues that "the framework" for applying the mandatory part of 19 U.S.C. § 1675a(a)(7), that is not cumulating subject imports upon a finding of no discernable impact, "was set by the Commission when it declined to cumulate [ball bearing] imports from Romania and Sweden. Like the [subject industry in the United Kingdom,] the Commission found that both the Romanian and Swedish [ball bearing] industries were export-oriented." Id. at 5. The Commission based its no discernable impact finding for Romania and Sweden on three factors. First, exports to the domestic market accounted for a small percentage of all Romanian and Swedish shipments. See id. Second, Romania and Sweden's capacity utilization rate is very low, "which apparently offset[s] concerns about available capacity." Id. Third, neither Romania nor Sweden are among the top five bearing producing nations. See id. NSK-RHP argues, therefore, that if the United Kingdom exhibits these same three "counterbalancing" factors, the Commission should find it probable that the United Kingdom's subject imports would also have no discernable adverse impact on the domestic industry. See id. at 6.

NSK-RHP compares subject imports from the three countries and argues that the United Kingdom's bearing industry is less export-oriented than "the Swedish industry and sits in a position comparable to that of the Romanian [ball bearing] industry." Id. NSK-RHP notes that, with exception to 1997, exports from the United Kingdom to the United States accounted for a small percentage of total shipments. See id. at 7 (business proprietary version). Further, NSK-RHP points out that the United Kingdom, Sweden and Romania have comparable capacity utilization rates and that the size of the United Kingdom's ball bearing industry is relatively small when compared to the other countries involved in the original review. See id. at 8-9. NSK-RHP maintains that record evidence "which the Commission failed to consider, demonstrates that subject imports from the United Kingdom are likely to have no discernable adverse impact on the domestic industry." Id. at 9. Consequently, NSK-RHP requests that the Court re-remand the Final Determination with instructions to the Commission to explain how the record evidence was weighed relative to the "likely" standard regarding the agency's decision to cumulate imports from the United Kingdom. See id. at 11.

Finally, NSK-RHP argues that the Commission erred in not reopening the record on remand to collect additional evidence regarding whether revocation of the subject orders would likely lead to continuation or recurrence of material injury. See id. at 12. According to NSK-RHP, "l...

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