Borlem SA-Empreedimentos Industriais v. US
| Citation | 13 CIT 535,718 F. Supp. 41 |
| Decision Date | 29 June 1989 |
| Docket Number | Court No. 87-06-00693. |
| 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 |
Willkie, Farr & Gallagher, (William H. Barringer, Arthur J. Lafave, III and Daniel L. Porter), Washington, D.C., for plaintiffs.
Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel U.S. Intern. Trade Com'n (Frances Marshall), Washington, D.C., for defendants.
Barnes, Richardson & Colburn, (James H. Lundquist, Matthew T. McGrath and Peter A. Martin), Washington, D.C., for defendant-intervenor.
Plaintiffs, Borlem S.A.-Empreedimentos Industriais (Borlem) and FNV-Veiculos E Equipamentos S.A. (FNV), move pursuant to Rule 56.1 of this Court for partial judgment on Count I of the Complaint requesting an immediate remand to the United States International Trade Commission (ITC) to reconsider its affirmative threat of injury determination in light of the International Trade Administration's (ITA) 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) (Commerce's Second-Amended Final Determination). Plaintiffs request that this Court effectively set aside the remand determination of the ITC declining to reconsider its determination in 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). Defendants and defendant-intervenor oppose the motion.
The question presented to the Court is whether or not the ITC, upon a remand from this Court, has the power to reconsider its determination. This Court holds that the ITC has such power and that the exercise of such power is discretionary. Hence, the next question is whether or not the ITC should, in the exercise of its discretion, reconsider its determination that an industry in the United States is threatened with material injury by reason of less than fair value (LTFV) imports from Brazil of tubeless steel disc wheels (TSDWs) in light of Commerce's Second-Amended Final Determination. If the ITC in its discretion determines that it should reconsider its determination, then it is directed to complete such reconsideration. If the ITC determines that it should not reconsider its determination, it is directed to set forth the reasons why it should not reconsider its determination.
The facts as set out in Borlem, S.A. Empreedimentos Industriais v. United States, 13 CIT ___, 710 F.Supp. 797 (1989) (Borlem I), are substantially repeated for convenience.
On May 23, 1986, the Budd Company filed an antidumping petition with Commerce and the Commission on behalf of the United States industry producing TSDWs. The petition alleged that Brazilian manufacturers were selling TSDWs in the United States at LTFV 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 TSDWs 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 LTFV dumping margin for Borlem was 15.25% ad valorem, and for FNV, 19.93% ad valorem. The Commission subsequently 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 (Final).
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 at the request of the ITA 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. 53 Fed.Reg. 34,566. 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. 53 Fed.Reg. at 34,569.
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 (C.I.T.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.
On March 22, 1989, in the instant case, this Court, at the request of the ITC after oral argument, invoked the doctrine of primary jurisdiction and pursuant to its power to remand under the Customs Courts Act of 1980, 28 U.S.C. § 2643(c)(1) (1982), returned the matter to the ITC. See Borlem I. The Court instructed the ITC to consider a hybrid legal and policy question in accordance with the doctrine of primary jurisdiction in light of the expertise of the ITC in the administration of the antidumping laws. The ITC was directed to decide whether it should reconsider its injury determination and further, should it determine to reconsider, to proceed with such reconsideration. This Court said:
By sending the matter back to the ITC for its views, the Court was neither extending nor abdicating its jurisdiction. This Court is merely waiting until the agency has had an opportunity to formulate its position. Upon completion of the remand proceedings, this Court will review all the ITC's actions to determine if they are based upon substantial evidence and are in accordance with law.
Borlem I, 13 CIT at ___, 710 F.Supp. at 802.
On April 11, 1989 the ITC determined that there was no explicit authority for the ITC to undertake reconsideration of its decision except for the process under section 751 of the Act, 19 U.S.C. § 1675. Tubeless Steel Disc Wheels From Brazil, USITC Pub. No. 2179 (Views on Remand in Inv. No. 731-TA-355) at 5-6. The ITC reported to this Court its determination not to reconsider its final affirmative threat of a material injury determination in Tubeless Steel Disc Wheels From Brazil, USITC Pub. No. 1971 (Final).
The ITC in its report to this Court of its determination indicated that it should not reconsider its final affirmative threat of material injury determination in Tubeless Steel Disc Wheels From Brazil, USITC Pub. No. 1971 (Final), in light of the Department of Commerce's Second-Amended Final Determination, 53 Fed.Reg. 34,566. The ITC indicated it did not have the power to reconsider.
The majority said:
We conclude that Congress did not intend for such matters to be the basis for a reconsideration by the Commission. We base this conclusion on the relevant statutes, taking into consideration the nature and structure of the statutory process for the conduct of antidumping investigations, and the interests of finality and equity, as well as the consequences for the efficient administration of antidumping investigations if matters such as these are remanded to the Commission.
The ITC majority found no explicit statutory authority for the ITC to reconsider its decisions except for an administrative review under section 751 of the Tariff Act of 1930.1 The ITC citing generally 19 U.S.C. §§ 1671a(c), 1673a(c), 1671b(a), 1671b(b), 1673b(a), 1673b(b), 1671d(a), 1671d(b), 1673d(a), 1673d(b) indicated that Congress created a complex system for the administration of the antidumping and countervailing duty laws that requires speed in the making of determinations. Id. at 6-7.
The ITC indicated that the Omnibus Trade and Competitiveness Act of 1988, Pub.L. No. 100-418, § 1333, 102 Stat. 1107, 1209, (1988) (the 1988 Act) authorizes Commerce to reconsider and revise its findings to correct certain ministerial errors. The majority pointed out:
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