Torrington Co. v. U.S.

Decision Date29 January 1998
Docket NumberCourt No. 96-08-01909.,Slip Op. 98-8.
Citation995 F.Supp. 117
PartiesThe TORRINGTON COMPANY, Plaintiff, v. UNITED STATES, Defendant, Dana Corporation, Defendant-Intervenor.
CourtU.S. Court of International Trade

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 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.

Discussion

The Court has jurisdiction over this matter under 19 U.S.C. § 1516a(a)(2)(B)(vi)(1994) and 28 U.S.C. § 1581(c)(1994).

In an action for judgment upon the agency record contesting Commerce's exclusion of certain products from the scope of an antidumping duty order, the Court must uphold Commerce's final determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir.1990).

In this action, Torrington asks that this Court reverse Commerce's determination that CBAs, the subject of Dana's Scope Request, and CSUs, the subject of Rockwell's Scope Request, are excluded from the scope of the Order. The only issue presented to this Court is whether Commerce's scope determination excluding CBAs and CSUs from the scope of the Order is supported by substantial evidence on the record and is in accordance with law.

1. Timeliness of Torrington's Attempt to Submit Evidence That CBAs and CSUs are AFBs of the Type Covered by the Order

Torrington wishes to submit evidence that CBAs and CSUs are bearings that should be covered by the scope of the Order, despite their classification as auto parts, and despite the Order's express language that wheel hub units are the only automotive parts in the Order's scope. Oral Argument, James R. Cannon, Jr. (Dec. 16, 1997); Torrington Opposition to Dana Scope Request, P.R. Doc. No. 4, at 1-3, Pl.'s App., Ex. 5 (Jan. 26, 1995). Torrington claims that the PCM supports its position that it may now argue that the products in question are bearings of the type covered by the Order. Specifically, Torrington refers to the following language in the PCM: "All other items [other than wheel hub units] 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 (emphasis added). Torrington argues that the phrase "absent convincing evidence" provides an open-ended invitation for petitioner to suggest, at any time during the Order's administration, products in the automotive classification which should be included in the Order's scope. This is a gross mischaracterization of the opportunity afforded by the PCM and by the law.

Torrington's attempt to introduce evidence at this time that CBAs and CSUs are bearings covered by the Order is time-barred. As a procedural matter, the PCM was part of Commerce's preliminary and final determinations and, therefore, should have been challenged within thirty days of the publication of the Order. See 19 U.S.C. § 1516a(a)(2)(A) (1988); Toshiba Corp. v. United States, 15 CIT 408, 413, 770 F.Supp. 660, 664 (1991). Torrington misunderstood the law on this matter and, consequently, the opportunity granted by the PCM.

Even if Torrington could not have raised evidence at the time of the Order's publication specifically regarding CBAs and CSUs, it still had the opportunity to challenge the language in the Order that excluded all but wheel hub units in the automotive parts category for investigation. Torrington, however, chose not to do so. The Court will therefore analyze Torrington's claim without considering any additional evidence Torrington wishes to submit regarding CBAs and CSUs.

2. Scope of the Order

A scope determination is a clarification of what the scope of the order was at the time the order was issued. As this Court has recognized several times in the past, Commerce retains broad discretion to define the scope of an antidumping investigation. See, e.g., SKF USA, Inc. v. United States, 15 CIT 152, 156, 762 F.Supp. 344, 348 (1991), aff'd, 972 F.2d 1355, 1992 WL 146116 (Fed. Cir.1992); Smith-Corona Group v. United States, 713 F.2d 1568, 1582 (Fed.Cir.1983); Mitsubishi Elec. Corp. v. United States, 12 CIT 1025, 1042, 700 F.Supp. 538, 552 (1988), aff'd, 898 F.2d 1577 (Fed.Cir...

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