Babcock & Wilcox Co. v. United States, 80-5-00772.
| Decision Date | 20 August 1981 |
| Docket Number | No. 80-5-00772.,80-5-00772. |
| Citation | 521 F. Supp. 479 |
| Parties | The BABCOCK & WILCOX COMPANY, Plaintiff, v. The UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
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Harris, Berg, & Creskoff, Washington, D. C. (Stephen M. Creskoff and Eric I. Garfinkel, Washington, D. C., at the oral argument); deKieffer, Berg & Creskoff, Washington, D. C. (Donald E. deKieffer and Eric I. Garfinkel, Washington, D. C., on the briefs), for plaintiff.
Stuart E. Schiffer, Acting Asst. Atty. Gen. (Joseph I. Liebman, Washington, D. C., Attorney in Charge, Field Office for Customs Litigation, Francis J. Sailer, Washington, D. C., at the oral argument and on the brief), for defendant.
Coudert Brothers, Washington, D. C. (Charles R. Stevens, Milo G. Coerper, Sherman E. Katz and John D. Maiers, Washington, D. C., of counsel), for Sumitomo Metal Industries, Ltd., amicus curiae.
Steptoe & Johnson, Washington, D. C. (Monroe Leigh, Daniel J. Plaine, Fred S. McChesney and Alice L. Mattice, Washington, D. C., of counsel), for Nippon Steel Corp., amicus curiae.
In these consolidated actions instituted by plaintiff pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a to review negative injury determinations of the United States International Trade Commission "Commission" in Investigation No. 731-TA-15 (Preliminary) relative to pipes and tubes of iron or steel from Japan, made on April 14, 1980, and June 24, 1980, respectively, plaintiff has moved pursuant to Rule 56.1 for determination of the issues in its favor upon an agency record, and defendant has cross-moved for affirmance of the Commission's determinations upon the record.
It appears from the record that on February 28, 1980, plaintiff, a domestic producer of steel pipes and boiler tubes, among other things, filed a petition simultaneously with the Department of Commerce "Commerce" and the Commission alleging that Japanese producers of certain pipes and tubes of steel were selling their products at less than fair value "LTFV" in contravention of the antidumping provisions of the Trade Agreements Act of 1979 Pub.L.No. 96-39, 93 Stat. 144 (July 26, 1979). LTFV sales were alleged with respect to the following products:
On March 25, 1980, Commerce determined that plaintiff's petition was sufficient to initiate an investigation which it then commenced. However, Commerce declined to include within the scope of its investigation seamless alloy steel tubes for bearings (TSUS item 610.4600) because it was of the opinion that plaintiff did not furnish sufficient information to support the allegation of LTFV sales as to that product 45 Fed. Reg. 19284 (1980).
Acting upon instructions from Commerce the Commission initiated Investigation No. 731-TA-15 (Preliminary) to determine whether there existed a reasonable indication that a domestic industry is, or has been materially injured or threatened with material injury by reason of LTFV imports of TSUS items 610.3205, 610.4920, 610.5215, and 610.5220 from Japan 45 Fed.Reg. 16051 (1980).
On April 9, 1980, by a vote of 3-2, the Commission made an affirmative determination of reasonable indication of material injury or threat thereof to the welded carbon boiler tube industry (TSUS item 610.3205), and a negative injury determination with respect to the seamless boiler tube and process pipe industry (TSUS items 610.4920, 610.5210, 610.5215, and 610.5270).
Thereafter, and on June 18, 1980, the Commission reopened Investigation No. 731-TA-15 (Preliminary) to reconsider import statistics relating to welded carbon boiler tubes (TSUS item 610.3205) which was said to be erroneous 45 Fed.Reg. 42898 (1980). And, after reconsidering corrected statistical data regarding TSUS item 610.3205, the Commission, by a vote of 4-1 made a negative injury determination on June 24, 1980, with respect to the welded carbon boiler tube industry 45 Fed.Reg. 47769 (1980).
Plaintiff contends that the Commission's negative injury determinations in its preliminary investigation were arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Plaintiff argues that the Commission's concept of the relevant industries is at variance with the mandatory requirements of the Trade Agreements Act of 1979, which has resulted in the Commission's utilization of overbroad and irrelevant injury data at the expense of pertinent injury data from domestic producers not addressed by the Commission. Plaintiff also argues that the Commission was without statutory authority to reopen the preliminary investigation for reconsideration of its determination upon additional evidence.
Defendant contends that the record supports the Commission's findings as to the absence of a reasonable indication of material injury or the threat thereof to the domestic industries assessed by the Commission, in which contention it is joined by Amicus Curiae Sumitomo Metal Industries, Ltd. and Nippon Steel Corp., foreign producers and exporters of the pipe and tube products investigated. Defendant argues that the best information available to the Commission indicated that the several products plaintiff sought to have investigated had no separable identities, and that the only distinction between products which industry practice allowed was as between seamless and welded pipe and tube products.
Defendant also contends that the Commission possesses discretionary and inherent authority to reopen proceedings and reconsider its decisions. In this contention defendant is joined by Amicus Curiae Nippon Steel Corporation, a foreign producer of the pipe and tube products covered by the investigation. Defendant argues that, given the posture of this case, especially in view of the "egregiously erroneous" information relied upon, this court would have had little choice but to remand the case to the Commission; and the Commission's actions merely obviated this circuitous procedure, and attained the mandated corrected result without adversely affecting plaintiff's right of judicial review.
The views of the Commissioners on these issues are diverse. First, with respect to scope of the industry, Chairman Bedell and Commissioner Moore stated:
The three seamless products — are all produced by essentially the same production methods, on the same machinery, and by the same workers. For these reasons, we have assessed the effect of the allegedly dumped imports on the U.S. industry ... in relation to the aggregate U.S. production of the three seamless pipe and tube items. (Pub.Doc. 57, p. 5)
Commissioner Stern stated:
In this case, where there is no absolutely clear answer to the question of scope of the domestic industry impacted by imports, it is my judgment that the information on the record in this investigation does not permit assessment by separate and identifiable product lines. Therefore, guided by the law's directive to make my findings on the basis of the best information available to the Commission at this time, I have determined that reasonable indication of injury to the domestic industry must be assessed with respect to boiler tubes and process pipes. (Pub.Doc. 57, p. 21)
Commissioner Alberger stated:
I am uncertain whether it is feasible for a product such as seamless stainless boiler tubes ... to be analyzed as a separate "product line" as defined by Section 771(4)(D) of the Trade Agreements Act of 1979. The record contains some information that suggests there may be good reason to make a product line distinction among the three seamless products under investigation. Further investigation would provide a better indication. Specific data are available on shipments, exports, and imports for each of the three categories of seamless pipe and tube and the one welded pipe and tube product under investigation. Only the petitioner was able to provide profit and loss data on each of these four products. Other manufacturers were apparently unable to provide such data, due to difficulty in allocating profits between products made on essentially the same machinery by the same employees. Petitioner has the same problems, but nevertheless was able to make the allocation. It is important to note that petitioner accounts for a very substantial proportion of domestic production of each item. (Pub.Doc. 57, p. 10)
And Commissioner Calhoun stated:
That the petitioner was able to supply data on four separate products implies the possibility of four distinct product lines against which the Commission must apply section 771(4)(D). In the time available, however, none of the other domestic producers was able to provide similar disaggregated data. This inability of the other domestic producers to provide similar disaggregated data results in confusion as to the precise character of the industry. (Pub.Doc. 57, p. 27)
Secondly, with respect to reconsideration of the Commission's affirmative preliminary injury determination of April 14, 1980, only two of the Commissioners made significant comment at the time of voting on June 24, 1980.
Commissioner Stern, who voted for reversal, stated:
I think that I should just briefly say that as far as I'm concerned that we are conserving a great deal of Commission energy in expressing our concern for the public because we are not, in fact, dealing with new facts. In other words, this is not a further fact finding for which we are reopening the vote, but we're dealing with the same old facts. The problem was that the facts that were given were inaccurate and we are simply responding quite immediate to what was immediately recognized upon...
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