American Bearing Mfrs. Ass'n v. U.S.

• Citation: 350 F.Supp.2d 1100
• Decision Date: 16 September 2004
• Docket Number: Slip Op. 04-119.,Court No. 03-00280.
• Parties: AMERICAN BEARING MANUFACTURERS ASSOCIATION, Plaintiff, v. UNITED STATES, Defendant, and Peer Bearing Co., Ningbo Mos Group, Ningbo Cixing Bearing, Ningbo Huanchi Group, Wangxiang Group Corp., Ningbo General Bearing Co., Ltd., Jiangsu General Ball and Roller Co., Ltd., Defendant-Intervenors.
• Court: U.S. Court of International Trade

350 F.Supp.2d 1100

AMERICAN BEARING MANUFACTURERS ASSOCIATION, Plaintiff, v. UNITED STATES, Defendant, and Peer Bearing Co., Ningbo Mos Group, Ningbo Cixing Bearing, Ningbo Huanchi Group, Wangxiang Group Corp., Ningbo General Bearing Co., Ltd., Jiangsu General Ball and Roller Co., Ltd., Defendant-Intervenors.

Slip Op. 04-119.

Court No. 03-00280.

United States Court of International Trade.

September 16, 2004.

COPYRIGHT MATERIAL OMITTED

Covington & Burling (Harvey M. Applebaum, David R. Grace, Karin L. Kizer, Nathan T. Daschle, Ariadna Vazquez, Washington, DC), for Plaintiff.

James M. Lyons, Acting General Counsel, United States International Trade Commission (Charles A. St. Charles), for Defendant.

Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of Justice; David M. Cohen, Director, Commercial Litigation Branch; Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch (Claudia Burke), for Defendant.

Coudert Brothers, LLP (Matthew J. McConkey, Washington, DC), for Defendant-Intervenor Peer Bearing Co.

Wilmer Cutler Pickering, LLP (Jason E. Kearns, John D. Greenwald, Jack A. Levy, Lisa M. Pearlman), for Defendant-Intervenors Ningbo Mos Group, Ningbo Cixing Bearing, Ningbo Huanchi Group, Wangxiang Group Corp., Ningbo General Bearing Co., Ltd., Jiangsu General Ball and Roller Co., Ltd.

OPINION

EATON, Judge.

Before the court is plaintiff American Bearing Manufacturers Association's¹ ("ABMA") U.S.C.I.T. Rule 56.2 motion for judgment upon an agency record challenging the United States International Trade Commission's ("ITC") final determination made pursuant to 19 U.S.C. § 1673d(b)(1)(A) (2000), that an industry in the United States is neither materially injured, nor threatened with material injury, by reason of dumped imports of ball bearings, and parts thereof, from the People's Republic of China.² See Ball Bearings From China, 68 Fed.Reg. 17,963 (ITC Apr. 14, 2003) (notice of final determination); Ball Bearings From China, USITC Pub. 3593, Inv. No. 731-TA-989 (Apr.2003), List 2, Doc. 408 ("Final Determination"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). For the reasons below, the court sustains the Final Determination.

BACKGROUND

On February 13, 2002, in response to a petition filed by ABMA, the ITC instituted an investigation of ball bearings from the People's Republic of China. See Ball Bearings From China, 67 Fed.Reg. 8039, 8040 (ITC Feb. 21, 2002) (notice of institution of investigation). As with ball bearings in prior investigations,³ those subject to the instant investigation were found to "cover[ ] a continuum of products in many sizes and configurations," and the ITC treated the continuum as the domestic like product. See Final Determination at 8. Ball bearings are used in a wide range of products and industries, including the automotive, aerospace, agriculture, and construction industries. See Staff Report at II-11.

The ITC gathered information with respect to domestic and imported ball bearings for the period of January 2000 to December 2002. Following its investigation made pursuant to 19 U.S.C. § 1677(7)(C)(i) — (iii), the ITC concluded that the domestic ball bearing industry was not being materially injured by reason of the subject imports. See 19 U.S.C. § 1673d(b)(1)(A)(i); Final Determination at 30. The ITC also determined that the domestic ball bearing industry was not threatened with material injury by reason of the subject imports. See 19 U.S.C. § 1673d(b)(1)(A)(ii); Final Determination at 33. ABMA appealed the ITC's final negative material injury and threat of material injury determinations to this Court pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i).

STANDARD OF REVIEW

The court will hold unlawful "any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law...." 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (citations omitted). It "requires `more than a mere scintilla,' ... but is satisfied by `something less than the weight of the evidence.'" Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed.Cir.2004) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). In conducting its review, the court must take into account not only the evidence on the record that justifies the ITC's findings, but also "whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) (citing Atl. Sugar, 744 F.2d at 1562). However, the court's function is not to reweigh the evidence but rather to ascertain "whether there was evidence which could reasonably lead to the Commission's conclusion...." Matsushita, 750 F.2d at 933. The possibility of drawing two inconsistent conclusions from the record evidence does not, in itself, prevent the ITC's determinations from being supported by substantial evidence. Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted).

DISCUSSION

ABMA contests, as unsupported by substantial evidence or otherwise not in accordance with law, the ITC's findings with respect to (1) whether the volume of subject imports was significant, (2) whether the effect of the subject imports on domestic prices was significant, (3) whether the subject imports have had a significant adverse impact on the domestic industry, and (4) whether the domestic industry is threatened with material injury by reason of the subject imports.

1. Volume

The ITC's volume determination requires an evaluation of "whether the volume of imports of the merchandise, or any increase in that volume, either in absolute terms or relative to production or consumption in the United States, is significant." 19 U.S.C. § 1677(7)(C)(i). Here, the ITC concluded that the volume of subject imports was not significant, "rely[ing] primarily on value measures for apparent consumption, domestic shipments, and subject imports, as [it had] in prior ball bearing investigations, and for the same reasons."⁴ Final Determination at 14 (emphasis added) (citing Ball Bearings From China, USITC Pub. 3504, Inv. No. 731-TA-989, (May 2002) at 11; 2000 Review at 39; Ball Bearings, Mounted or Unmounted, and Parts Thereof, From Arg., Aus., Braz., Can., H.K., Hung., Mex., P.R.C., Pol., Rep. Korea, Spain, Taiwan, Turk. and Yugoslavia, USITC Pub. 2374, Inv. No. 701-TA-307 (Apr.1991) at 19 — 20; Antifriction Bearings (Other Than Tapered Rolling Bearings) and Parts Thereof, from F.R.G., Fr., Italy, Japan, Rom., Sing., Swed., Thail., and U.K., USITC Pub. 2185, Invs. Nos. 303-TA-19 — 20, 731-TA-391 — 399 (May 1989) ("USITC Pub. 2185") at 67, 69, 71; Tapered Roller Bearings and Parts Thereof, and Certain Housings Incorporating Tapered Rollers From Hung., P.R.C., and Rom., USITC Pub.1983, Invs. Nos. 731-TA-341, 344 and 345 (June 1987) ("USITC Pub.1983") at 16).⁵ While the ITC recognized that there were "limitations presented by using value measures rather than quantity measures, such as the difficulty in determining whether changes in value totals are caused by changes in product mix or changes in price," it nonetheless decided to "rely on value-based indicators as the best measure for a continuum product that includes a vast and disparate grouping of items differing in size, configuration, application, and precision." Final Determination at 14 — 15.

ABMA argues that the ITC: (1) failed to adequately consider import quantity data in determining whether the volume of subject imports was significant, (2) failed to offer an adequate explanation for not considering such data, (3) failed to respond to arguments advocating the use of import quantity data, and (4) failed to consider the impact of unfairly traded imports in the context of the ball bearing marketplace. See Pl.'s Conf. Mem. Supp. Mot. J. Admin. R. ("Pl.'s Mem."); Pl.'s Reply Mem. Supp. Mot. J. Admin. R. ("Pl.'s Reply"). The court will address each argument in turn.

First, ABMA asserts that 19 U.S.C. § 1677(7)(C)(i) requires the ITC to consider the quantity of imports,⁶ and that the ITC failed in its obligation when it allegedly "ignored substantial record evidence demonstrating that the volume of imports of complete Chinese ball bearings [based on quantity] was significant." Pl.'s Mem. at 17, 18. ABMA states that "[a]lthough the quantity data are included in the Staff Report, the Commission relegated its discussion of volume by unit-quantity to a footnote."⁷ Id. at 17. Second, claiming that "import data measured in quantity for complete ball bearings pointed to a different conclusion than the one the Commission reached using value to measure imports," ABMA argues that "the Commission at a minimum should have evaluated both sets of data [i.e., value and quantity data,] and explained why the volume numbers were not significant, instead of dismissing without a reasoned explanation data that contradicted its conclusion." Id. at 19 (citing Altx, Inc. v. United States, 167 F.Supp.2d 1353, 1359 (2001), aff'd 370 F.3d 1108 (Fed.Cir.2004)). Third, ABMA argues that the ITC "failed to address the domestic industry's arguments that Chinese imports were significant when measured by unit-quantity." Id. at 18. Fourth, ABMA contends that the ITC's finding that the volume of subject imports, as measured by value, was not significant fails to take into consideration the specific characteristics of the marketplace, in particular, that the ball bearing market is price sensitive. Id. at 21.

Finally, ABMA argues that Torrington Co. v. United States, 16 CIT 220, 230, 790...