Coalition for Brake Drum, Rotor Mfrs. v. U.S., Slip Op. 98-80.
| Decision Date | 13 July 1998 |
| Docket Number | Slip Op. 98-80.,No. 97-05-00876.,97-05-00876. |
| Citation | 15 F.Supp.2d 918 |
| Parties | THE COALITION FOR THE PRESERVATION OF AMERICAN BRAKE DRUM AND ROTOR AFTERMARKET MANUFACTURERS, Plaintiff, v. The UNITED STATES of America, Defendant, China National Automotive Indus. Import & Export Co., Qingdao Metal Minerals & Machinery Import & Export Corp., Yantai Import & Export Corp., Longkou Bohai Machinery Co., Beijing Xinchangyuan Automobile Fittings Corp., China National Machinery Import & Export Corp., Hebei Metals and Machinery Import & Export Corp., Shanxi Machinery and Equipment Import & Export Corp., China North Industries Corp. (Guangzhou), China North Industries Corp. (Dalian), Longjing Walking Tractor Works Foreign Trade Import & Export Corp., Changzhi Automotive Parts Factory, and Southwest Technical Import & Export Corp., Defendant-Intervenors, California Brake Drum and Rotor, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Porter, Wright, Morris & Arthur, Washington, DC (Leslie Alan Glick), for Plaintiff.
Lyn M. Schlitt, General Counsel, James A. Toupin, Deputy General Counsel, Office of the General Counsel, U.S. International Trade Commission (Marc A. Bernstein), Washington, DC, for Defendant.
White & Case, Washington, DC (William J. Clinton and Adams C. Lee) for Defendant-Intervenors, China National Automotive Indus. Import & Export Co., et al.
Williams Mullen Christian & Dobbins (William E. Perry, Thomas B. McVey, and W. David Snead), Washington, DC, for Defendant-Intervenor, California Brake Drum and Rotor.
I
Plaintiff, the Coalition for the Preservation of American Brake Drum and Rotor After-market Manufacturers (the "Coalition")1, moves pursuant to Rule 56.2 of the Rules of this Court to challenge the final negative determination of the United States International Trade Commission ("ITC" or "Commission") that a domestic industry is not being materially injured or threatened with material injury by reason of imports of certain brake drums from China. The International Trade Administration of the Department of Commerce ("ITA" or "Commerce") found that they were being sold in the United States at less than fair value ("LTFV"). Jurisdiction is predicated upon 28 U.S.C. § 1581 (1994). For the reasons that follow, the Commission's final determination is sustained.
II
On March 7, 1996, the Coalition filed an antidumping duty petition with the ITA and ITC.2 The petition alleged that certain brake drums and rotors from the People's Republic of China ("PRC" or "China") were being dumped in the United States at LTFV and were causing material injury and/or threat of material injury to a United States industry. The period of investigation ("POI") covers the years 1993 through 1996.
On February 28, 1997, Commerce announced its final antidumping duty determination. It found that certain brake drums and rotors were being sold in the United States at LTFV. Notice of Final Determinations of Sales at LTFV: Brake Drums and Brake Rotors from the People's Republic of China, 62 Fed.Reg. 9160 (Feb. 28, 1997). Commerce published its final amended affirmative determination on April 2, 1997. Notice of Amended Final Determination of Sales at LTFV: Brake Drums and Brake Rotors from the People's Republic of China, 62 Fed.Reg. 15,655 (April 2, 1997).
On April 16, 1997, the Commission issued its final determination. In a unanimous decision concerning the brake drums, the Commission found that a United States industry was not being materially injured nor threatened with material injury by reason of imports of certain brake drums from China.3 In contrast, the Commission made an affirmative injury determination concerning certain brake rotors. Certain Brake Drums and Rotors from China, Inv. No. 731-TA-744 (Final), USITC Pub. 3035 ("Final Determination"); 62 Fed.Reg. 18,650 (ITC April 16, 1997). The determination concerning the brake rotors is not being challenged here.
III
In reviewing the Commission's determination, this Court must sustain a final negative injury 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)(1994). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (citation omitted). Moreover, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Matsushita Elect. Indus. Co. Ltd. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (Fed.Cir.1984) (citation omitted).
The reviewing court may not, "even as to matters not requiring expertise ... displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In this regard "the court may not reweigh the evidence or substitute its judgment for that of the ITC." Dastech Int'l, Inc. v. USITC, 963 F.Supp. 1220, 1222 (CIT 1997); Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 8 Fed. Cir. (T) 36, 894 F.2d 385 (1990).
IV
In order to make a final affirmative determination in its injury investigation, the ITC must find that:
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded, by reason of imports of the merchandise....
19 U.S.C. § 1671b(a)(1)(1994). With respect to LTFV imports, "material injury" is defined as "harm which is not inconsequential, immaterial, or unimportant." 19 U.S.C. § 1677(7)(A)(1994).
The ITC's Determination That The Domestic Brake Drum Industry Was Not Being
Plaintiff argues that the ITC determination is unsupported by substantial evidence in the record and contrary to law with regard to its finding of no material injury. Plaintiff contends that the ITC failed to consider evidence in the record on the volume of imports and their consequential and harmful impact on the U.S. industry. Accordingly, Plaintiff requests a reversal of the ITC's Final Determination or in the alternative, a remand to the ITC for further proceedings.
Defendant, United States, and Defendant-Intervenors, China National Automotive Indus., et al. ("China National"), and California Brake Drum and Rotor respond that the Commission's conclusions have the requisite evidentiary support, that no factual issues are in dispute and that the Coalition is, in reality, asking the Court to impermissibly reweigh the evidence.
The guidelines established by Congress for analyzing the issue of material injury mandate consideration of the following factors: (1) the volume of imports, (2) the effect of imports of that merchandise on prices in the United States for like products, and (3) the impact of such merchandise on domestic producers of like products. 19 U.S.C. § 1677(7)(B)(i)(1994); Angus Chemical Co. v. United States, 140 F.3d 1478, 1484 (Fed.Cir. 1998) (three mandatory factors). Pursuant to 19 U.S.C. § 1677(7)(B)(ii), the Commission may also "consider such other economic factors as are relevant to the determination." No single factor, however, is determinative and the Commission evaluates all relevant economic factors "within the context of the business cycle and conditions of competition that are distinctive to the affected industry." 19 U.S.C. § 1677(7)(C)(iii)(1994); Companhia Paulista De Ferro-Ligas v. United States, Slip Op. 96-63, 18 ITRD1542, ___, 1996 WL 189515, *3 (CIT 1996).
In evaluating the evidence it collects during the investigation, the "commissioners are free to attach different weight to the various statutory tests which they are required to employ when evaluating the presence or threat of injury." U.S. Steel Group v. United States, 96 F.3d 1352, 1362 (Fed.Cir. 1996).
A finding of an affirmative injury determination requires both "(1) present material injury and (2) a finding that the material injury is `by reason of' the subject imports." Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed.Cir.1997). "Evidence of de minimis (e.g., minimal or tangential) causation of injury does not reach the causation level required under the statute." Id. at 722. Substantial Evidence Supports the Commission's
19 U.S.C. § 1677(7)(C)(i) directs the Commission, in evaluating the volume of imports, to "consider whether the volume of imports of the merchandise, or any increase in that volume, either in absolute terms or relative to production or consumption in the United States, is significant."
In the Final Determination, the ITC found that the quantity of LTFV brake drum imports rose from zero in 1993 to 333,000 units ($3.4 million) in 1994, then rose to 494,000 units ($4.8 million) in 1995. Final Determination at 20. For interim 1996,4 the ITC found the quantity of subject drum imports fell to 339,000 units ($2.9 million) which amounted to fewer than the 456,000 units ($4.4 million) imported in interim 1995.5 Id. The ITC also found the subject drum market penetration grew from 0 in 1993 to 7.6% in 1994 and then to 9.2% in 1995. In interim 1996, a market penetration of 7.5% amounted to less than a market penetration of 10.9% calculated for interim 1995. Id. at 21. The Commission additionally found that the domestic market share, on the other hand "varied little throughout most of the period of investigation." Id. at 14.6
Plaintiff makes two arguments for its contention that the ITC...
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