Borlem SA-Empreedimentos Industriais v. US

• Decision Date: 22 March 1989
• Docket Number: Court No. 87-06-00693.
• Citation: 710 F. Supp. 797,13 CIT 231
• Parties: BORLEM S.A.-EMPREEDIMENTOS INDUSTRIAIS and FNV-Veiculos E Equipamentos S.A., Plaintiffs, v. The UNITED STATES of America and U.S. International Trade Commission, Defendants, and The Budd Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

710 F. Supp. 797

13 CIT 231

BORLEM S.A.-EMPREEDIMENTOS INDUSTRIAIS and FNV-Veiculos E Equipamentos S.A., Plaintiffs, v. The UNITED STATES of America and U.S. International Trade Commission, Defendants and The Budd Company, Defendant-Intervenor.

Court No. 87-06-00693.

United States Court of International Trade.

March 22, 1989.

Willkie, Farr & Gallagher, William H. Barringer, Arthur J. Lafave, III, argued the motion, and Daniel L. Porter, Washington, D.C., for plaintiff.

Lyn M. Schlitt, General Counsel, James A. Toupin, Asst. General Counsel, argued the motion, U.S. Intern. Trade Com'n, Timothy M. Reif, Washington, D.C., for defendants.

Barnes, Richardson & Colburn, James H. Lundquist, New York City, Matthew T. McGrath, both argued the motion, and Peter A. Martin, for defendant-intervenor.

OPINION

CARMAN, Judge:

Plaintiffs Borlem S.A.-Empreedimentos Industriais and FNV-Veiculos E Equipamentos S.A. (Borlem and FNV) move pursuant to Rule 1 of this Court for a remand to the defendant, the International Trade Commission (ITC or Commission), to permit the Commission to decide whether its affirmative threat of material injury determination in Tubeless Steel Disc Wheels From Brazil, 52 Fed.Reg. 17,487 (May 8, 1987) should be considered in light of the Department of Commerce's (Commerce) determination in Amended Final Determination of Sales at Less Than Fair Value and Amended Antidumping Duty Order; Tubeless Steel Disc Wheels From Brazil, 53 Fed.Reg. 34,566 (Sept. 8, 1988), and to allow the ITC to actually reconsider its determination should it deem such action appropriate. The defendant-intervenor the Budd Company (Budd) opposes the motion. The defendant ITC supports it.

The issue presented in this case is whether under the doctrine of primary jurisdiction this Court should remand a hybrid legal and policy question of first impression to the ITC to allow it, in the first instance, to address the matter in light of its own expertise in the administration of the antidumping law; and further should it decide to reconsider, to conduct a reconsideration of its injury determination. Under the circumstances of this case and on the basis of the arguments of the parties and all papers submitted herein, the Court finds it appropriate to grant the motion and remand the matter to the Commission.

FACTS

On May 23, 1986, the Budd Company filed an antidumping petition with Commerce and the Commission on behalf of the United States industry producing tubeless steel disc wheels (TSDWs). The petition alleged that Brazilian manufacturers were selling TSDWs in the United States at less than fair value (LTFV) prices within the meaning of section 731 et seq., of the Tariff Act of 1930 as amended, (19 U.S.C. § 1673 et seq.) and that an industry in the United States was materially injured or threatened with material injury by reason of imports of this merchandise. At all relevant times, there were only two Brazilian exporters of tubeless steel disc wheels: Borlem and FNV.

On March 13, 1987, Commerce issued an affirmative final antidumping duty determination for tubeless steel disc wheels from Brazil. Final Determination of Sales at Less Than Fair Value: Tubeless Steel Disc Wheels From Brazil, 52 Fed. Reg. 8,947 (March 20, 1987). Commerce found that the margin of sales at LTFV for Borlem was 15.25% ad valorem, and for FNV, 19.93% ad valorem. On April 27, 1987, the Commission determined that an industry in the United States was threatened with material injury by reason of imports of the subject merchandise from Brazil. Tubeless Steel Disc Wheels From Brazil, USITC Pub. No. 1971, Inv. No. 731-TA-335 (Final) (April 1987), 52 Fed. Reg. 17,487 (May 8, 1987).

Following issuance of the final injury determination, Commerce issued an antidumping duty order together with an amendment to its final LTFV determination correcting clerical errors. Amendment to Final Determination of Sales at Less Than Fair Value; Tubeless Steel Disc Wheels From Brazil, and Antidumping Duty Order, 52 Fed.Reg. 19,903 (May 28, 1987).

On May 28, 1987, Borlem and FNV commenced two actions, one challenging the final LTFV determination by Commerce (Court No. 87-06-00692) and the other challenging the final injury determination by the Commission (the instant case). On June 15, 1988, this Court remanded the final LTFV determination and antidumping duty order to Commerce with instructions to recalculate the dumping margin and to correct all clerical, methodological and transcription errors. Borlem, S.A. Empreedimentos Industriais v. United States, 12 CIT ___, Slip Op. 88-77, 1988 WL 63336 (June 15, 1988).

The remand resulted in the publication on September 7, 1988, of a second-amended final LTFV determination and amended antidumping duty order. Amended Final Determination of Sales at Less Than Fair Value and Amended Antidumping Duty Order; Tubeless Steel Disc Wheels From Brazil, 53 Fed.Reg. 34,566 (September 7, 1988). The second-amended final LTFV determination found Borlem to have a weighted-average dumping margin of 10.84% and FNV, a margin of 0.04%. Commerce deemed FNV's margin to be de minimis and excluded this company from its amended affirmative determination. Based on the amended determination, Commerce directed the United States Customs Service to terminate suspension of liquidation for all entries of TSDWs from Brazil by FNV.

On September 22, 1988, the Budd Company filed a summons and complaint with the Court contesting the second amended final LTFV determination and antidumping order. See The Budd Company v. United States, 700 F.Supp. 35 (CIT 1988). On October 4, 1988, Borlem filed a summons and complaint contesting different aspects of the same determination. See Borlem S.A. Empreedimentos Industriais v. United States, Court No. 88-10-00760. These actions related to the Commerce determinations.

This motion to remand to the Commission, relating to the commission decision in Tubeless Steel Disc Wheels From Brazil, ensued. Plaintiff and defendant consent to the remand, defendant-intervenor opposes the remand. Oral argument was held and this Court's order was issued granting the remand on March 10, 1989. This opinion states the Court's rationale for issuing the remand order.

DISCUSSION

The standard of review in antidumping cases is whether on the basis of the administrative record before the Court the agency action is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1982). The Court must give substantial weight to an agency's interpretation of a statute it administers. American Lamb Co. v. United States, 4 Fed. Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). More importantly, for the purposes of this motion, this Court has significant powers in law and equity to remand to the administrative agency when circumstances require. Congress specifically granted this Court the power to remand in the Customs Courts Act of 1980. 28 U.S.C. § 2643(c)(1) (1982).¹ Congress was clear in its purpose: "In granting this remand power to the court, the Committee intends that the remand power be co-extensive with that of a federal district court." H.R.Rep. No. 1235, 96th Cong., 2nd Sess. 60, reprinted in 1980 U.S.Code Cong. & Admin.News 3729, 3772. This Court has noted that "judicial authority supports granting a request for remand if it fosters and promotes fundamental fairness." Alhambra Foundry Co., Ltd. v. United States, 12 CIT ___, ___, 685 F.Supp. 1252, 1262 (1988).²

In addition to the above considerations, this Court must be mindful of the doctrine of primary jurisdiction. "Primary jurisdiction is a doctrine of common law, wholly court-made, that is designed to guide a court in determining whether and when it should refrain from or postpone the exercise of its own jurisdiction so that an agency may first answer some question presented." Davis, Administrative Law Treatise 81 (2nd Ed., Vol. 4, 1983). The central purpose of the doctrine is to permit courts to give effect to legislative intent underlying the established regulatory scheme by referring matters involving agency expertise back to the agency so that it may, in the first instance, pass upon the issue from its unique administrative perspective.

In United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), the Supreme Court outlined the parameters of the doctrine. "No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." Id. at 64, 77 S.Ct. at 165. In evaluating those purposes, the Court stressed that its central concern was the promotion of uniformity in agency decisions and respect for the deference due the "expert and specialized knowledge of the agencies." Id. Elaborating, the Court reasoned:

In cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.

352 U.S. at 64-65, 77 S.Ct. at 165, quoting Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). In short, the "doctrine requires judicial abstention in cases...