995 F.Supp. 117 (CIT. 1998), 96-08-01909, Torrington Co. v. United States

Docket Nº:Court No. 96-08-01909.
Citation:995 F.Supp. 117
Party Name:The TORRINGTON COMPANY, Plaintiff, v. UNITED STATES, Defendant, Dana Corporation, Defendant-Intervenor. Slip Op. 98-8.
Case Date:January 29, 1998
Court:Court of International Trade
 
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Page 117

995 F.Supp. 117 (CIT. 1998)

The TORRINGTON COMPANY, Plaintiff,

v.

UNITED STATES, Defendant,

Dana Corporation, Defendant-Intervenor.

Slip Op. 98-8.

Court No. 96-08-01909.

United States Court of International Trade.

Jan. 29, 1998

Page 118

Stewart and Stewart (Terence P. Stewart, Geert De Prest and James R. Cannon, Jr.), Washington, DC, for Plaintiff.

Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (Cynthia B. Schultz); of counsel: Mark A. Barnett, Attorney-Advisor, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for Defendant.

Barnes, Richardson & Colburn (Robert E. Burke, Kazumune V. Kano, and David G. Forgue), Chicago, IL, for Defendant-Intervenor.

OPINION

TSOUCALAS, Senior Judge:

Plaintiff, the Torrington Company ("Torrington"), brings this motion pursuant to Rule 56.2 of the Rules of this Court for judgment on the agency record. Torrington challenges certain final scope determinations1 OF THE UNITED STATES departmEnt of CommercE, internationAl trade Administration ("Commerce"), excluding center bracket assemblies ("CBAs") imported from Japan by Dana Corporation ("Dana") and cushion suspension units ("CSUs") imported from Japan and Singapore by Rockwell International Corporation ("Rockwell") from the scope of the antidumping duty orders on ball bearings, cylindrical roller bearings, and spherical plain bearings from Japan and Singapore, entitled Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904 (1989), and Antidumping Duty Order of Sales at Less Than Fair Value: Ball Bearings and Parts Thereof From Singapore, 54 Fed.Reg. 20,907 (1989) (collectively, "Order").

Background

On March 31, 1988, Torrington filed an antidumping duty petition on behalf of the United States domestic industry producing antifriction bearings ("AFBs") on all AFBs (other than tapered roller bearings) including

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housed bearing units, regardless of use. On May 23, 1988, Commerce prepared a memorandum regarding the scope of the antidumping and countervailing duty investigations of AFBs. In its memorandum, and then again during a meeting with Torrington, Commerce requested, inter alia, that Torrington specifically identify the products entering under the basket provision for miscellaneous automotive parts (TSUS item 692.3295)2 that it wants included in the scope of these investigations and state whether it produces each product. On May 26, 1988, Torrington responded to Commerce's request by asserting that the petition was intended to cover all antifriction bearings, other than tapered roller bearings, and parts, including so-called application bearings and bearing units (e.g., bearings which incorporate some additional feature to permit ease of assembly, mounting, etc.).

On June 13, 1988, Commerce issued a Product Coverage Memorandum (" PCM ") for the antidumping and countervailing duty investigations at issue, in which it stated the following:

Wheel hub units enter under the TSUSA category for miscellaneous automotive parts and were specifically named in the petition. No other items entering under this category were named in the petition. Accordingly, wheel hub units currently are the only item entering under the TSUSA category for miscellaneous automotive parts which are included in the scope of these investigations. All other items entering under the miscellaneous automotive parts TSUSA category will not be subject to these investigations, absent convincing evidence provided by the petitioner that any such item should be included.

PCM at 2, Pl.'s App., Ex. 3. Torrington did not submit any evidence regarding CBAs and CSUs.

On May 15, 1989, Commerce published the Order at issue covering ball bearings, cylindrical roller bearings, and spherical plain bearings from Japan and Singapore. The Order indicated its scope as follows:

Wheel hub units which employ [balls or cylindrical rollers] as the rolling element entering under TSUSA item 692.3295 [miscellaneous automotive parts] are subject to investigation; all other products entering under this TSUSA item are not subject to investigation.

Order, 54 Fed.Reg. at 20,905 & 54 Fed.Reg. at 20,907 (emphasis added). No party challenged any aspect of the Order's scope language relating to the exclusion of miscellaneous automotive parts covered under TSUS 692.3295 other than wheel hub units.

On separate occasions, both Dana and Rockwell requested that Commerce issue a scope ruling excluding their automotive parts, CBAs and CSUs, from the scope of the Order. See Dana Scope Ruling Request for CBAs, P.R. Doc. No. 2, Pl.'s App., Ex. 3 (Nov. 17, 1994) (" Dana Scope Request "); Rockwell Scope Ruling Request for CSUs, P.R. Doc. No. 9, Pl.'s App., Ex. 4 (Nov. 9, 1995) (" Rockwell Scope Request "). Commerce determined that the CBAs imported by Dana and the CSUs imported by Rockwell are outside the scope of the Order. See Notice of Scope Rulings, 62 Fed.Reg. 30,569 & 61 Fed.Reg. 40,194.

On August 7, 1996, Torrington filed its summons challenging the Dana determination and the present action ensued. On March 5, 1997, Torrington's case was consolidated with Torrington's challenge of the Rockwell Determination. Rockwell is not a party to this action. Oral argument was held at the Court on December 16, 1997.

D...

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