SKF USA, INC. v. US Dept. of Commerce
| Decision Date | 08 April 1991 |
| Docket Number | Court No. 89-06-00330. |
| Citation | 762 F. Supp. 344,15 CIT 152 |
| Parties | SKF USA, INC.; AB SKF; SKF GmbH and SKF Gleitlager GmbH; SKF France and Sarma; RIV-SKF Industries, S.p.A.; SKF Sverige, AB; and SKF (U.K.) Limited, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE and Robert A. Mosbacher, Secretary, U.S. Department of Commerce, Defendants, The Torrington Company, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Howrey & Simon, Herbert C. Shelley and Lauren D. Frank, Washington, D.C., for plaintiffs.
Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Jeanne E. Davidson, John D. McInerney, Sr. Counsel, Douglas S. Cohen, Craig R. Giesse, Diane McDevitt, Stephanie J. Mitchell and Maria Solomon, Attorney-Advisors, Office of the Chief Counsel for Import Admin., Dept. of Commerce, of counsel, for defendants.
Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., David Scott Nance and Geert De Prest, Washington, D.C., for defendant-intervenor.
Plaintiffs, SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH, SKF France and Sarma, RIV-SKF Industries, S.p.A., SKF Sverige AB and SKF (U.K.) Limited, (collectively "SKF") have filed this motion pursuant to Rule 56.1 of the rules of this Court for partial judgment on the agency record, to contest certain aspects of the final determinations of the Department of Commerce, International Trade Administration ("Commerce" or "ITA") in Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany ("Final Determinations"), 54 Fed.Reg. 18,992, et seq. (1989).
In particular, plaintiffs challenge the determination that petitioner, The Torrington Company ("Torrington"), had standing to bring an antidumping duty case "on behalf of" the domestic industries which manufacture cylindrical roller bearings and spherical plain bearings. Plaintiffs also assert that the wheel hub units and aircraft components they manufacture were improperly included in the scope of the investigation and should not be subject to antidumping duties. Plaintiffs also contest the ITA's decision to calculate foreign market value in Sweden and Italy using third country sales data and, ultimately, best information available.
The Court's jurisdiction is based on 28 U.S.C. § 1581(c) (1988).
The facts of this case were set out in detail in NTN Bearing Corp. of America v. United States, 15 CIT ___, 757 F.Supp. 1425, (Feb. 28, 1991). Briefly, the ITA, in its final determinations, found that petitioner had standing to bring an antidumping petition regarding each class or kind of bearing involved in this case, to wit, ball bearings, spherical roller bearings, cylindrical roller bearings, needle roller bearings and spherical plain bearings. Final Determinations, 54 Fed.Reg. at 19,006. SKF contests the initiation of the investigation into cylindrical roller bearings and spherical plain bearings. The ITA also determined that wheel hub units and aircraft bearings manufactured by SKF were within the scope of the investigations. Further, the ITA decided not to use home market sales in its calculation of foreign market value, and instead used third country sales and ultimately, best information available.
A determination by the Department of Commerce will be affirmed unless that determination is not supported by substantial evidence or is otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT ___, ___, 685 F.Supp. 1252, 1255 (1988) (citations omitted). Under this standard, Commerce is granted considerable deference "in both its interpretation of its statutory mandate and the methods it employs in administering the antidumping law." Chemical Products Corp. v. United States, 10 CIT 626, 628, 645 F.Supp. 289, 291 (1986) (citations omitted).
The statutory requirements for initiation by petition of an antidumping proceeding are that an interested party file a "petition with the administering authority, on behalf of an industry, which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations." 19 U.S.C. § 1673a(b)(1) (1988). SKF avers that Torrington's petition was not filed "on behalf of" the domestic cylindrical roller bearings and spherical plain bearings industries, and should have been dismissed. Memorandum in Support of Plaintiffs' Motion For Partial Judgment Upon an Agency Record ("Plaintiffs' Memorandum") at 14.
The Tariff Act of 1930 defines industry as "the domestic producers as a whole of a like product, or those producers whose collective output of the like product constitutes a major proportion of the total domestic production of that product." 19 U.S.C. § 1677(4)(A) (1988) (emphasis added). Plaintiffs assert that this definition, combined with the "on behalf of" language of 19 U.S.C. § 1673a, requires petitioner to prove that its petition has the express endorsement of a majority of the domestic industry, and that in this case, the petitioner did not so prove.
Upon the filing of an antidumping petition, Commerce presumes that the petition is filed on behalf of the relevant domestic industry. The Court in NTN Bearing found that this presumption is reasonable and is consistent with the intent of the statute. 15 CIT at ___, 757 F.Supp. at 1429; see also Comeau Seafoods, Ltd. v. United States, 13 CIT ___, ___, 724 F.Supp. 1407, 1411 (1989); Florex v. United States, 13 CIT ___, ___, 705 F.Supp. 582, 587-88 (1989). When opponents of the petition surface, however, the presumption is cast aside and the ITA investigates the depth of the opposition to the petition.1 If supporters of the petition constitute a major proportion of the industry, the investigation must proceed. If not, then the ITA has the discretion to continue or to dismiss the case. NTN Bearing, 15 CIT at ___, 757 F.Supp. at 1429-30; Comeau, 13 CIT at ___, 724 F.Supp. at 1411; Florex, 13 CIT at ___, 705 F.Supp. at 588; Citrosuco Paulista, 12 CIT at ___, 704 F.Supp. at 1085.
However, in deciding whether to continue or to dismiss an antidumping proceeding, the ITA must exercise its discretion "reasonably and the decision must be supported by substantial evidence." NTN Bearing, 15 CIT at ___, 757 F.Supp. at 1429-30. See 19 U.S.C. § 1516a(b)(1)(B) (1988). SKF contends that Commerce's determination was not supported by substantial evidence. In particular, SKF states that the ITA improperly relied on production figures from the Antifriction Bearing Manufacturers Association ("AFBMA") in calculating production levels in the cylindrical roller bearings industry. Plaintiffs argue that the AFBMA is a trade association which is not a reliable source of this data. The Court finds this argument wholly without merit since SKF itself relied on AFBMA data in determining its percentage of production for purposes of responding to Commerce's standing questionnaire on November 2, 1988. See Administrative Record ("AR") (Conf.) Doc. 14 at 6-7.
Furthermore, SKF alleges that AFBMA data is unreliable because it is trade association data based on the same type of estimates which were rejected by the ITA in Frozen Concentrated Orange Juice From Brazil, 52 Fed.Reg. 8,324 (1987). In Frozen Concentrated Orange Juice, the rejected data was based on a "succession of steps of estimations, rather than calculations," and there was contradictory information submitted by interested parties as to whether or not they supported the petition. Id. at 8,325. No such situation exists here. The ITA, which found the orange juice data "questionable," found the bearings industry's trade association data reliable. 54 Fed.Reg. at 19,005. Plaintiffs' use of the same data in its questionnaire response only adds to that data's credibility. The Court sees no reason to upset this finding.
SKF also challenges the ITA's decision to use U.S. Census data to calculate production levels in the spherical plain bearings industry because that data was from 1987 and the period of review in this case was October 1987 to March 1988. Plaintiffs' Memorandum at 23. None of the domestic producers of spherical plain bearings provided any information regarding total U.S. production of that class or kind of bearing. Hence, there was no basis for the ITA to reverse its presumption in favor of petitioner's standing and the decision to press on with the spherical plain bearings investigation was correct.
Six domestic producers expressed their opposition to petitioner's standing generally.2 However, the ITA concluded that the opponents' production did not constitute a majority of the value of production in either the cylindrical roller bearings industry or the spherical plain bearings industry, and thus decided to proceed with the investigation. 54 Fed.Reg. at 19,005. The evidence in the record supports this conclusion. AR (Conf.) Doc. 37.
Accordingly, the Court holds that Commerce's determination that Torrington possessed standing to initiate an antidumping investigation on behalf of the cylindrical roller bearings and spherical plain bearings industries was supported by substantial evidence and was otherwise in accordance with law.
SKF also challenges Commerce's decision to include wheel hub units and aircraft bearings within the scope of the investigations.3 Plaintiffs claim that the characteristics, functions and uses of these products differ from those of antifriction bearings ("AFBs"), and thus hub units and aircraft bearings should...
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