Torrington Co. v. US, Court No. 89-06-00313.

• Decision Date: 03 August 1990
• Docket Number: Court No. 89-06-00313.
• Citation: 14 CIT 507,745 F. Supp. 718
• Parties: The TORRINGTON COMPANY, Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

745 F. Supp. 718

14 CIT 507

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

Court No. 89-06-00313.

United States Court of International Trade.

August 3, 1990.

Stewart & Stewart, Eugene L. Stewart, Terence P. Stewart and Wesley K. Caine, for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Jeanne E. Davidson (Diane M. McDevitt, Atty.-Advisor, Office of the Chief Counsel for Import Admin., Dept. of Commerce, of counsel), for defendant.

TSOUCALAS, Judge:

Plaintiff, The Torrington Company ("Torrington"), brings this action to challenge the final determination of ITA in the antidumping investigation of antifriction bearings from Romania. Final Determinations of Sales at Less Than Fair Value; Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Romania, 54 Fed.Reg. 19,109 (May 3, 1989). Pursuant to Rule 56.1(a) of the Rules of this Court, plaintiff seeks partial judgment upon the agency record regarding that part of ITA's determination which described five separate classes or kinds of antifriction bearings. In its petition requesting the imposition of antidumping duties, Torrington alleged there was only one class or kind of merchandise, that is, all antifriction bearings (except for tapered roller bearings). Plaintiff claims Commerce does not have the authority to modify the petition's description of "class or kind," but even if it did, its modification is not supported by substantial evidence in the record.

Background

Plaintiff, a domestic producer of antifriction bearings, filed a petition on March 31, 1988 requesting that the Department of Commerce impose antidumping duties on all imports of antifriction bearings, except for tapered roller bearings, from a number of countries, including Romania. Plaintiff's Petition, General Administrative Record ("AR") (Public) Doc. 1. The petition described the "class or kind" of merchandise for which antidumping duties were sought as: "all ground antifriction bearings and all parts thereof both finished and unfinished with the exception of tapered roller bearings." Id. at 13. The petition went on to describe a number of different types of bearings, all of which were included in the petition's defined scope. These included

ball bearings, cylindrical roller bearings, spherical roller bearings, spherical plain bearings, needle roller bearings, thrust bearings, tappet bearings, and all mounted bearings such as set screw housed units, bushings, pillow block units, flange, cartridge and take-up units and parts including balls, rollers, cages or retainers, cups, shields and seals. Id.

Commerce subsequently initiated antidumping investigations of the imported bearings. Shortly thereafter, several other manufacturers of antifriction bearings protested the inclusion of many different types of bearings in the same investigation. They urged Commerce to divide the investigations into several classes or kinds of merchandise. The SKF Group suggested that the bearings be divided into ten classes or kinds. AR (Pub.) Doc. 65. Koyo Seiko, a Japanese producer of antifriction bearings, proposed eight different classes or kinds. In essence, their complaint was that Torrington had "lumped together a number of distinct categories of bearings under the omnibus rubric of `antifriction bearings.'" AR (Pub.) Doc. 24 at 2.

Commerce then released a memorandum in which it explained that the merchandise under investigation actually comprised five different classes or kinds. ITA Class or Kind Memorandum (July 13, 1988), AR (Pub.) Doc. 102. These five classes or kinds were: (1) ball bearings; (2) spherical roller bearings; (3) cylindrical roller bearings; (4) needle roller bearings; and, (5) plain bearings. Id. On July 22, 1988, Commerce notified Torrington that further evidence of sales of the several classes or kinds of bearings in the United States at less than fair value ("LTFV") was needed for the investigations to continue. AR (Pub.) Doc. 114.

Additional evidence of LTFV sales submitted by Torrington was deemed inadequate and Commerce informed Torrington of this on August 22, 1988. AR (Pub.) Doc. 164. ITA then rescinded the investigations of cylindrical roller bearings, needle roller bearings, and plain bearings from Romania. Partial Rescission of Initiation of Antidumping Investigations and Dismissal of Petitions; Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Romania, Singapore, and Thailand, 53 Fed.Reg. 39,327 (October 6, 1988). However, the investigations of ball bearings and spherical roller bearings from Romania continued. The final determination in the antifriction bearings investigation was published on May 3, 1989. 54 Fed.Reg. 19,109.

Torrington now argues that ITA had no authority to divide antifriction bearings into five different classes or kinds of merchandise. Memorandum in Support of Plaintiff's Motion for Partial Judgment upon an Agency Record ("Plaintiff's Memorandum") at 11. Further, if ITA does have that power, then its finding of five classes or kinds is based on an "impermissibly narrow construction" of the concept of class or kind. Id. at 19. Also, plaintiff alleges that ITA's determination is not supported by substantial evidence in the administrative record. Finally, Torrington contests the determination on the grounds that it is not consistent with prior determinations.

Discussion

I. Commerce's Authority to Modify the Class or Kind of Merchandise as Described in the Petition

Plaintiff's first argument is that once a petition which satisfies the requirements of 19 U.S.C. § 1673a(b) is filed, ITA lacks the "authority to modify `class or kind' descriptions given by petitioners in their petitions." Plaintiff's Memorandum at 12.¹ Plaintiff seeks support for this contention in the antidumping laws of the United States, which require ITA to investigate "to determine whether the class or kind of merchandise described in the petition is being, or is likely to be, sold in the United States at less than its fair value." 19 U.S.C. § 1673a(c)(2) (1988).

Torrington stresses that the statute calls for Commerce to give deference to the definition of class or kind found in the petition. Commerce agrees that its investigation must encompass the class or kind of merchandise found in the petition, "provided that the petition satisfies the initiation requirements for each class or kind of merchandise `described in the petition.'" Defendant's Memorandum in Opposition to Plaintiff's Motion for Partial Judgment upon the Agency Record ("Defendant's Memorandum") at 17-18.² Indeed, the statute contains no provision prohibiting Commerce from distinguishing between two classes or kinds of merchandise when the petition improperly fails to do so.

The petitioner's description of class or kind is awarded some deference inasmuch as the petitioner often will call Commerce's attention to an otherwise overlooked potential dumping problem. However, where a petition is not sufficient on its face or where a particular product mentioned in the petition does not satisfy the initiation requirements, Commerce need not commence an investigation. 19 U.S.C. § 1673a(c).

This court recently affirmed the description of the class or kind of merchandise as interpreted by Commerce, even though it differed from that provided by the petition. Mitsubishi Elec. Corp. v. United States, 12 CIT ___, ___, 700 F.Supp. 538, 555-56 (1988), aff'd, 898 F.2d 1577 (Fed.Cir.1990). In Mitsubishi, the petitioner defined the class or kind of merchandise as "all cellular mobile telephones manufactured in Japan, plus all mobile transceivers or kits of components and subassemblies manufactured in Japan for use in final assembly of cellular mobile telephones." Id. at ___, 700 F.Supp. at 541. However, ITA defined the scope as "including subassemblies in general, not restricting the scope to subassemblies sold only in kits or collections." Id. at ___, 700 F.Supp. at 543. In upholding ITA's expansion of the scope of the investigation, this court held that ITA "has the authority to define and/or clarify what constitutes the subject merchandise to be investigated as set forth in the petition." Id. at ___, 700 F.Supp. at 555.³

In Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007 (1980), aff'd, 69 CCPA 61, 669 F.2d 692 (1982), this court considered a petition concerning imported typewriters. There, the plaintiff, a foreign maker of typewriters, believed its product was not within the scope of the antidumping duty order. Id. at 87, 507 F.Supp. at 1014. However, the court held that "even if plaintiff believed itself to be an `orange' among `apples', so long as the Department of Commerce and the ITC were considering it to belong to a certain class it remained so for the purpose of the proceedings." Id.⁴ This discretion was reinforced by the court when it stated that the "agency, at the proper time, can define the class in its terms." Id.

Furthermore, in affirming Mitsubishi earlier this year, our appellate court held that "the responsibility to determine the proper scope of the investigation and of the antidumping order ... is that of the ITA, not of the complainant before the agency." 898 F.2d at 1582.⁵ But while ITA has the discretion to modify the class or kind of merchandise which is described in the petition, that "discretion must be exercised in light of all the facts before the Administration and must reflect that agency's judgment regarding the scope and form of an order that will best effectuate the purpose of the antidumping laws and the violation found." Id. at 1583.

Torrington submits two additional arguments in support of its contention that Commerce has no authority to subdivide the class or kind described in the petition: (1) that the antidumping laws of the United States are "remedial in nature," and therefore should be construed...