Timken U.S. Corp. v. U.S.
| Decision Date | 27 January 2004 |
| Docket Number | Slip Op. 04-7. Court No. 00-08-00385. |
| Citation | 310 F.Supp.2d 1327 |
| Parties | TIMKEN U.S. CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and NSK Ltd., NSK-RHP Europe Ltd., RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation; NTN Bearing Corporation of America, NTN Bower Corporation, NTN-BCA Corporation and NTN Corporation; SKF USA Inc. and SKF Gmbh; FAG Kugelfischer Georg Schäfer AG, the Barden Corporation (U.K.) Limited, the Barden Corporation, FAG Italia S.p.A. and FAG Bearings Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Stewart and Stewart (Terence P. Stewart, Geert De Prest, Eric P. Salonen and Amy A. Karpel), Washington, DC, for Timkem U.S. Corporation, plaintiff.
Lyn M. Schlitt, General Counsel, Office of the General Counsel, United States International Trade Commission (Mark A. Bernstein, Acting Assistant General Counsel, and John D. Henderson), for the United States, defendant.
Crowell & Moring LLP (Robert A. Lipstein, Matthew P. Jaffe and Grace W. Lawson), Washington, DC, for NSK Ltd., NSK-RHP Europe Ltd., RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation, defendant-intervenors.
Barnes, Richardson & Colburn (Donald J. Unger, Kazumune V. Kano and David G. Forgue), Chicago, IL, for NTN Bearing Corporation of America, NTN Bower Corporation, NTN-BCA Corporation and NTN Corporation, defendant-intervenors.
Steptoe & Johnson LLP (Herbert C. Shelley, Alice A. Kipel, David N. Tanenbaum and Mary T. Mitchell), Washington, DC, for SKF USA Inc. and SKF GmbH, defendant intervenors.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Max F. Schutzman, Andrew B Schroth, Mark E. Pardo and Adam M. Dambrov), New York City, for FAG Kugelfischer Georg Schafer AG, The Barden Corporation (U.K.) Limited, The Barden Corporation, FAG Italia S.p.A. and FAG Bearings Corporation, defendant-intervenors.
Sidley Austin Brown & Wood LLP (Neil R. Ellis), Washington, DC, for Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., defendant-intervenors.
Plaintiff, Timken U.S. Corporation ("Timken"),1 moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain aspects of the United States International Trade Commission's ("ITC" or "Commission") final determination in Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 65 Fed.Reg. 39,925 (June 28, 2000), in which the ITC found that revocation of the antidumping duty orders (ITC Inv. Nos. 731-TA-391-394, -397 and -399) on cylindrical roller bearings ("CRBs") from France, Germany, Italy, Japan, Sweden and the United Kingdom "would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time." Specifically Timken challenges the determination with regard to CRBs from France, Germany, Italy, Japan and the United Kingdom and contends, inter alia, that the ITC failed to: (1) properly assess the importance of foreign affiliations with the domestic industry; (2) adequately consider whether adverse price effects are likely; (3) consider all relevant record evidence including data pertaining to inventory levels, third country pricing and improvements in the domestic CRBs industry; (4) consider the relevant economic factors in the sunset review within the context of the business cycle; and (5) consider the United States Department of Commerce's ("Commerce") determination that dumping would likely recur following revocation of the antidumping duty orders. Timken further challenges certain aspects of Chairman Stephen Koplan and Commissioner Thelma J. Askey's separate views. The complete views of the ITC were published in Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom ("Final Determination" ), Inv. Nos. AA1921-143, 731-TA-341, 731-TA-343-345, 731-TA-391-397, and 731-TA-399 (Review), USITC Pub. 3309 (June 2000).2
In May 1989 the ITC determined that a domestic industry was likely to be injured as a result of CRBs imported into the United States from certain countries that were likely to be sold at less than fair value ("LTFV"). See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom ("Original Investigation"), Inv. Nos. 303-TA-19 and 20 (Final) and 731-TA-391-399 (Final), USITC Pub. 2185 (May 1989). On May 15, 1989, notices of antidumping duty orders were published in the Federal Register with respect to CRBs imported from various countries, including France, Germany, Italy, Japan and the United Kingdom. See Antidumping Duty Orders on Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, 54 Fed.Reg. 20,900; Antidumping Duty Orders on Ball Bearings, Cylindrical Roller Bearings, Spherical Plain Bearings, and Parts Thereof From France, 54 Fed.Reg. 20,902; Antidumping Duty Orders on Ball Bearings and Cylindrical Roller Bearings, and Parts Thereof From Italy, 54 Fed.Reg. 20,903; Antidumping Duty Orders on Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed.Reg. 20,904; Antidumping Duty Orders and Amendments to the Final Determinations of Sales at Less Than Fair Value on Ball Bearings, and Cylindrical Roller Bearings and Parts Thereof From the United Kingdom, 54 Fed.Reg. 20,910.
On April 1, 1999, the Commission issued notice of its five-year ("sunset") reviews, concerning antidumping duty orders on certain bearings, including CRBs from France, Germany, Italy, Japan and the United Kingdom, to determine whether revocation of the orders would be likely to lead to continuation or recurrence of material injury. See Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 64 Fed.Reg. 15,783. On July 2, 1999, the Commission determined that it would conduct full reviews.3 See Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 64 Fed.Reg. 38,471 (July 16, 1999). Notice regarding scheduling a public hearing was published on August 27, 1999, see Certain Bearings from China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom, 64 Fed.Reg. 46,949-50, and the hearing, allowing all interested parties to comment, was held on March 21, 2000. See Final Determination, USITC Pub. 3309 at 2.
The Commission made a final determination regarding the effect of revoking the antidumping duty orders on CRBs from France, Germany, Italy, Japan and the United Kingdom in June 2000, and concluded that lifting the orders would not likely lead to continuation or recurrence of material injury to any domestic industry within the reasonably foreseeable future.4 See Final Determination, USITC Pub. 3309 at 1-2. Timken advances several challenges to the Commission's negative determination and contends that the finding was unsupported by substantial evidence or otherwise contrary to law because of its reliance on, inter alia, illogical reasoning, inconsistent record evidence and incorrect conclusions regarding price underselling and domestic market vulnerability. See Timken's Br. Supp. R. 56.2 Mot. J. Agency R. ("Timken's Br.") at 1-7. The ITC and defendant-intervenors, NSK Ltd., NSK-RHP Europe Ltd., RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK Corporation (collectively "NSK"), NTN Bearing Corporation of America, NTN Bower Corporation, NTN-BCA Corporation and NTN Corporation (collectively "NTN"), SKF USA Inc. and SKF GmbH (collectively "SKF"), and FAG Kugelfischer Georg Schäfer AG, The Barden Corporation (U.K.) Limited, The Barden Corporation, FAG Italia S.p.A. and FAG Bearings Corporation (collectively "FAG"), oppose Timken's claims. Defendant-intervenors, Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., did not supply the Court with opposition briefs to Timken's motion for judgment upon the agency record.
The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i)(I) (2000) and 28 U.S.C. § 1581(c) (2000).
The Court will uphold the Commission's final determination in a full five-year sunset review 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)(i) (1994); see NTN Bearing Corp. of America v. United States, 24 CIT 385, 389-90, 104 F.Supp.2d 110, 115-16 (2000) (). " " Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). "[T]he possibility of drawing two inconsistent conclusions from the [same] evidence does not" preclude the Court from holding that the agency finding is supported by substantial evidence. Consolo v. Federal Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). An agency determination will not be "overturned merely because the plaintiff `is able to produce evidence ... in support of its own contentions and in opposition to the evidence supporting the agency's determination.'" Torrington Co. v. United States, 14 CIT 507, 514, 745 F.Supp. 718, 723 (1990) (internal citation omitted), aff'd, 938 F.2d 1276 (Fed.Cir.1991).
In a five-year review, the ITC determines whether revocation of an antidumping...
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