Torrington Co. v. US

• Decision Date: 11 September 1990
• Docket Number: Court No. 89-06-00356.
• Citation: 747 F. Supp. 744
• Parties: The TORRINGTON COMPANY, Plaintiff, v. UNITED STATES, Defendant, Nippon Seiko K.K. and NSK Corp.; ICSA Industries Cuscinetti S.p.A.; NTN Corp., NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp. and NTN Toyo Bearing Co., Ltd.; INA Bearing Co., Inc., INA Walzlager Schaeffler KG, INA Roulements, S.A., and INA Bearing Co., Ltd.; Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.; Hoesch Rothe Erde Schmiedag AG and Rotek Inc.; Nippon Thompson Co., Ltd.; SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH, SKF France, RIV-SKF Industries, S.p.A., SKF Sverige AB, and SKF (U.K.) Limited; Caterpillar Inc.; and FAG Kugelfischer Georg Schaefer KGaA, FAG Cuscinetti S.p.A. and FAG Bearings, Corp., Defendants-Intervenors.
• Court: U.S. Court of International Trade

747 F. Supp. 744

The TORRINGTON COMPANY, Plaintiff, v. UNITED STATES, Defendant,

Nippon Seiko K.K. and NSK Corp.; ICSA Industries Cuscinetti S.p.A.; NTN Corp., NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corp. and NTN Toyo Bearing Co., Ltd.; INA Bearing Co., Inc.,

INA Walzlager Schaeffler KG, INA Roulements, S.A., and INA Bearing Co., Ltd.; Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.; Hoesch Rothe Erde Schmiedag AG and Rotek Inc.; Nippon Thompson Co., Ltd.; SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH, SKF France, RIV-SKF Industries, S.p.A., SKF Sverige AB, and SKF (U.K.) Limited; Caterpillar Inc.; and FAG Kugelfischer Georg Schaefer KGaA, FAG Cuscinetti S.p.A. and FAG Bearings, Corp., Defendants-Intervenors.

Court No. 89-06-00356.

United States Court of International Trade.

September 11, 1990.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and Lane S. Hurewitz, for plaintiff.

James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Com'n, Stephen A. McLaughlin and Frances Marshall, for defendant.

Coudert Brothers, Robert A. Lipstein, J. Triplett Mackintosh and James G. Dwyer, for Nippon Seiko K.K. and NSK Corp.

Donovan Leisure Newton & Irvine, Pierre F. de Ravel d'Esclapon, for ICSA Industries Cuscinetti S.p.A.

Barnes, Richardson & Colburn, Robert E. Burke, Donald J. Unger, Brian F. Walsh and Jesse M. Gerson, for NTN Corp., NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp. and NTN Toyo Bearing Co., Ltd.

Katten Muchin Zavis & Dombroff, Thomas A. Rothwell, Jr., Joseph A. Vicario, Jr., James M. Lyons and Alfred G. Scholle, for INA Bearing Co., Inc., INA Walzlager Schaeffler KG, INA Roulements, S.A., and INA Bearing Co., Ltd.

Powell, Goldstein, Frazer & Murphy, Peter O. Suchman and Neil R. Ellis, for Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A.

Hogan & Hartson, Lewis E. Leibowitz, Walter A. Smith, Jr. and David W. Phillips, for Hoesch Rothe Erde Schmiedag AG and Rotek Inc.

Gibson, Dunn & Crutcher, Joseph H. Price and Naoyuki Agawa, for Nippon Thompson Co., Ltd.

Howrey & Simon (Herbert C. Shelley and Jennifer Rie) for SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH, SKF France, RIV-SKF Industries, S.p.A., SKF Sverige AB, and SKF (U.K.) Ltd.

Powell, Goldstein, Frazer & Murphy (Peter O. Suchman, Neil R. Ellis and T. George Davis, Jr.) for Caterpillar Inc.

Adduci, Mastriani, Meeks & Schill (Louis S. Mastriani, Barbara A. Murphy, Ralph H. Sheppard and Cathy S. Neuren for FAG Kugelfischer Georg Schaefer KGaA, FAG Cuscinetti S.p.A. and FAG Bearings Corp.

OPINION

TSOUCALAS, Judge:

Plaintiff brings this action pursuant to Rule 56.1 of the Rules of this Court to challenge the finding by the International Trade Commission ("ITC" or "Commission") of six separate "like products" and "domestic industries" in its investigations of antidumping and countervailing duty injuries involving imports of antifriction bearings. 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, USITC Pub. 2185, Inv. Nos. 303-TA-19 and 20 and 731-TA-391-399 (May 1989) ("Final Determinations").¹ This Court's jurisdiction is based on 28 U.S.C. § 1581(c) (1988).

Background

Torrington filed an antidumping and countervailing duty petition on March 31, 1988 on behalf of the domestic industry which produces antifriction bearings. In the petition, Torrington described one class or kind of merchandise, to wit, all antifriction bearings (except tapered roller bearings). Torrington also requested that the ITC find a single like product and a single domestic industry.

In May, 1988, the ITC issued a preliminary determination which stated that there was reason to believe that six domestic industries were materially injured, or threatened with such injury, because of unfairly imported bearings from nine countries. 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, USITC Pub. 2083, Inv. Nos. 303-TA-19 and 20 and 731-TA-391-399 (May 1988) ("Preliminary Determinations"). The Commission differentiated among bearings based on the type of rolling element each bearing contains. As a result, the ITC found that each of the following comprised a different like product produced by a different industry: (1) ball bearings; (2) spherical roller bearings; (3) cylindrical roller bearings; (4) needle roller bearings; (5) plain bearings; and (6) other antifriction devices, such as ball screws and linear guides. Id. at 22.

The Commission issued its final determinations in May 1989 and found that there were six like products. USITC Pub. 2185. Five of the like products corresponded to the classes or kinds of merchandise found by the International Trade Administration ("ITA"); they are ball bearings, spherical roller bearings, cylindrical roller bearings, needle roller bearings and plain bearings. However, the Commission found that slewing rings constituted a separate, sixth, like product.

Subsequently, the ITC rendered negative injury determinations for spherical roller bearings, needle roller bearings and slewing rings, and affirmative determinations for ball bearings, cylindrical roller bearings and spherical plain bearings. Final Determinations at 7. Plaintiff asserts that the Commission's approach "substantially narrowed the scope of the ultimate antidumping and countervailing duty orders, and thereby adversely affected Torrington." Memorandum of Points and Authorities in Support of the Torrington Company's Motion for Partial Summary Judgment on the Agency Record at 8 ("Plaintiff's Memorandum").

Discussion

I. ITC's Authority to Determine Like Products

Torrington contends that the ITC must accept the definition of like product and domestic industry provided by the petition, and does not possess the authority to modify that description.

The Commission is authorized by statute to make a determination based on the evidence before it as to whether a domestic industry has been materially injured (or is threatened with such injury) by reason of imports at less than fair value ("LTFV"). 19 U.S.C. § 1673b(a)(1) (1988). The imports under investigation must cause material injury or threaten such injury to a domestic industry which produces like products, that is, products which are "like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this subtitle." 19 U.S.C. § 1677(10) (1988).

Torrington's complaint is that the ITC should have made its determination based on Torrington's assertion that all antifriction bearings (except tapered roller bearings) constitute one like product and one domestic industry. It is well settled that the ITC has the authority to determine whether or not one or more domestic industries have been injured by reason of LTFV imports. This Court repeatedly has upheld the ITC when its determinations have deviated from the contentions made in the petition, provided those determinations were supported by substantial evidence. Roquette Freres and Roquette Corp. v. United States, 7 CIT 88, 93, 583 F.Supp. 599, 603 (1984); Kenda Rubber Indus. Co. v. United States, 10 CIT 120, 123, 630 F.Supp. 354, 357 (1986); Mitsubishi Elec. Corp. v. United States, 12 CIT ___, ___, 700 F.Supp. 538, 563 (1988), aff'd, 898 F.2d 1577 (Fed.Cir.1990).

Plaintiff also claims that the ITC's like product determination must be consistent with the ITA's class or kind finding. Plaintiff's Memorandum at 14. It is settled law that the ITC's like product determination is separate and distinct from the ITA's determination of the class or kind of merchandise. See Mitsubishi, 898 F.2d at 1584. While the ITC does not have the authority to modify the ITA's finding of class or kind, it has the right to make its own determination as to what should be considered a like product. Badger-Powhatan v. United States, 9 CIT 213, 217, 608 F.Supp. 653, 657 (1985). Inconsistencies in the agencies' determinations are not, per se, contrary to law. Indeed, the possibility that they will reach inconsistent conclusions is "built into the law." Algoma Steel Corp. v. United States, 12 CIT ___, ___, 688 F.Supp. 639, 642 (1988), aff'd, 865 F.2d 240 (Fed.Cir.1989), cert. denied, ___ U.S. ___, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). Hence, the ITC was within its discretion when it found that there were six different like products in the instant investigation.

II. ITC's Interpretation of "Like Product"

Torrington also asserts that the Commission "applied an impermissibly narrow construction of the `like product' and industry." Plaintiff's Memorandum at 23.² In support of its position, Torrington cites the legislative history to the Trade Agreements Act of 1979, which states that

the requirement that a product be "like" the imported article should not be interpreted in such a narrow fashion as to permit minor differences in physical characteristics or uses to lead to the conclusion that the product and article are not "like" each other, nor should the definition of "like product" be interpreted in such a fashion as to prevent consideration of an industry adversely affected by the imports under investigation.

S.Rep. No. 249, 96th Cong., 1st Sess. 90-91, reprinted in 1979 U.S.CODE CONG. & ADMIN.NEWS 381, 476-77. Essentially, plaintiff is contending that, in finding that there were six like products in the investigation of antifriction bearings, the Commission "impermissibly" relied on minor differences in characteristics and uses.

It appears that plaintiff has misunderstood the mandate of the statute and its legislative history. The Senate Report cited above warns against permitting minor differences between domestic products and imported articles from...