Budd Co., Ry. Division v. United States, 80-3-00505.

Decision Date29 December 1980
Docket NumberNo. 80-3-00505.,80-3-00505.
Citation507 F. Supp. 997,1 CIT 67
PartiesThe BUDD COMPANY RAILWAY DIVISION, Plaintiff, v. The UNITED STATES, Defendant, Nissho-Iwai American Corporation and Kawasaki Heavy Industries, Ltd., Intervenors Parties-in-Interest, and Breda Costruzioni Ferroviarie, S.p.A., Intervenor Party-in-Interest.
CourtU.S. Court of International Trade

Barnes, Richardson & Colburn, New York City (Andrew P. Vance and Raymond F. Sullivan, New York City, on the briefs), for plaintiff.

Alice Daniel, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, International Trade Field Office, Commercial Litigation Branch, New York City (Francis J. Sailer, Washington, D. C., on the brief), for the United States, defendant.

Arent, Fox, Kintner, Plotkin & Kahn (Stephen L. Gibson and Evan R. Berlack, Washington, D. C., on the briefs), for Nissho-Iwai American Corp. and Kawasaki Heavy Industries, Ltd., intervenors parties-in-interest.

Bosco & Curry, Washington, D. C. (Joseph A. Bosco, Washington, D. C., on the briefs), Landfield, Becker & Green (William W. Becker, Washington, D. C., on the briefs), for Breda Costruzioni Ferroviarie, S.p.A., intervenor party-in-interest.

OPINION AND ORDER

BOE, Judge:

The plaintiff, The Budd Company, Railway Division, which assembles rail passenger cars as well as manufactures certain components and parts therefor at its plant in Philadelphia, Pennsylvania, brings this action under section 516A(1)(D) of the Tariff Act of 1930 as amended by the Trade Agreements Act of 1979 contesting the preliminary determination by the United States International Trade Commission (Commission) of "No Reasonable Indication of Material Injury" in Rail Passenger Cars and Parts Thereof Intended for Use as Original Equipment in the United States from Italy and Japan. Investigations Nos. 731-TA-5 and 6 (Preliminary). 45 Fed. Reg. 11942-43 (published Feb. 22, 1980).1

The antidumping investigative proceedings instituted by the Commission pursuant to the petition filed by the plaintiff relate specifically to contracts executed between (1) the Greater Cleveland Regional Transit Authority and Breda Costruzioni Ferroviarie, S.p.A. (Breda) of Italy in 1978 for the purchase of 48 light rail vehicles; (2) the Southeastern Pennsylvania Transportation Authority and Nissho-Iwai American Corporation and Kawasaki Heavy Industries, Ltd., (Nissho-Iwai) of Japan in 1979 for the purchase of 141 light rail vehicles; (3) the Washington Metropolitan Area Transit Authority and Breda of Italy in 1979 for the purchase of 94 rapid transit cars.

In this action the plaintiff requests that the court: (1) find the preliminary determination by the Commission that there is no reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of the importation from Italy and Japan of rail passenger cars and parts thereof intended for use as original equipment in the United States, which are allegedly sold at less than fair value, is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and, therefore, unlawful under section 516A(b)(1)(A) of the Tariff Act of 1930, and (2) make an affirmative determination of a reasonable indication of material injury with respect to the products that were the subject matter of the Commission's investigation.

The administrative proceedings concerning which judicial review is herein sought may be summarized as follows:

On October 16, 1979, plaintiff submitted to the Commissioner of Customs, Department of the Treasury, a "Petition for the Imposition of Antidumping Duties on Rail Passenger Cars from Japan and Italy," pursuant to the Antidumping Act of 1921.

On November 27, 1979, an Antidumping Proceeding Notice was published in the Federal Register advising that a petition in proper form had been received and that after a summary investigation had been conducted a full-scale antidumping investigation was "being initiated for the purpose of determining whether imports of rail passenger cars and parts thereof which are intended for use as original equipment in the United States from Japan and Italy are being, or likely to be, sold at less than fair value within the meaning of the Antidumping Act of 1921, as amended." 45 Fed.Reg. 67747 (1979).

No preliminary determinations nor final determinations under the provisions of the Antidumping Act of 1921 as to the question of less than fair value sales had by January 1, 1980, been made by the Secretary of the Treasury in the antidumping cases involving rail passenger cars from Italy and Japan. Accordingly, pursuant to section 102(b) of the Trade Agreements Act of 1979, those cases were forthwith referred to the Commission for determinations of reasonable indications of injury.

On January 14, 1980, a Notice of Institution of Preliminary Antidumping Investigation and Scheduling of Conferences was published in the Federal Register advising that effective January 1, 1980, the Commission was instituting Antidumping Investigations Nos. 731-TA-5 and 6 (Preliminary), and that the Director of Operations of the Commission had scheduled a conference on January 29, 1980, at which time parties in support and in opposition to the antidumping petition would receive an opportunity to make oral presentations. Written statements of information pertinent to the subject matter of the investigations were to be submitted before February 1, 1980. 45 Fed. Reg. 2715 (1980).

On January 29, 1980, a conference was held at which time the respective parties to this action submitted testimony and exhibits. The testimony submitted was not subject to cross-examination.

On February 11, 1980, the Commission made a unanimous negative preliminary determination with respect to the subject matter under investigation, and on February 22, 1980, a notice of "Determination of `No Reasonable Indication of Material Injury'" was published in the Federal Register. 45 Fed.Reg. 11942 (1980).

On March 24, 1980, the within action was commenced in the United States Customs Court pursuant to section 516A(a)(1)(D), Tariff Act of 1930, by the concurrent filing of a summons and complaint. The proceeding is presently before this court on a motion for summary judgment filed by the plaintiff and a cross-motion for summary judgment filed by the defendant, the United States, and the intervenors parties-in-interest.2

In the review of the negative preliminary determination of the Commission by this court, the scope thereof encompasses only the information before the Commission at the time the determination was made, including any information that has been compiled as a part of a formal record. S.Rep. No. 249, 96 Cong., 1st Sess. 248, U.S.Code Cong. & Admin.News 1979, p. 381.

The standard of review to be followed by this court has been clearly defined in section 516A(b)(1)(A), Tariff Act of 1930, providing:

(b) Standards of Review.
Remedy. The court shall hold unlawful any determination, finding, or conclusion found —
(A) in an action brought under paragraph (1) of subsection (a), to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or * * *.

Legislative history evidences the intent of Congress with respect to the criteria to be followed by the court in its evaluation of the findings of the Commission:

Section 516A would make it clear that traditional administrative law principles are to be applied in reviewing antidumping ... duty decisions where by law Congress has entrusted the decision-making authority in a specialized, complex economic situation to administrative agencies. Thus, review of any determination listed in subsection (a)(1) would be to ascertain whether there was a rational basis in fact for the determination by the administrative decision-maker. S.Rep., supra, at 252, U.S.Code Cong. & Admin. News 1978 at 637.

The application of this standard of review by the reviewing court has been succinctly stated by the United States Supreme Court in the case of Bowman Transportation v. Arkansas-Best Freight Systems, Inc.:

A reviewing court must `consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.' Citation omitted. The agency must articulate a `rational connection between the facts found and the choice made.' Citation omitted. While we may not supply a reasoned basis for the agency's action that the agency itself has not given, Citation omitted., we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. 419 U.S. 281, 285-6, 95 S.Ct. 438, 441-2, 42 L.Ed.2d 447 (1974).

Having recognized the narrow standard by which the court must predicate its review of the Commission's determination in the within action, it is proper that, prior to an evaluation of the specific findings as made by the Commission, we look to the function and obligation of that body in the performance of its investigative prerogatives authorized by the statute.

The preliminary determination by the Commission required by section 733(a) must be "based upon the best information available to it at the time of the determination." Although recognizing the restrictions placed upon an investigation by virtue of a 45-day time limitation, Congress has prescribed a thorough investigation by the Commission prior to the making of its preliminary determination.

The time limit provided in the bill for an ITC preliminary determination, although longer than that under present law, is still quite brief. It is therefore intended that the ITC will investigate the allegations in the petition in as thorough a manner as possible using the information available within that time period, and
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