Torrington Co. v. US, Court No. 89-06-00359.

• Citation: 786 F. Supp. 1021
• Decision Date: 28 February 1992
• Docket Number: Court No. 89-06-00359.
• Parties: The TORRINGTON COMPANY, Plaintiff, v. UNITED STATES, Defendant, SNR Roulements, SNR Bearings, USA, Inc. and ICSA Industries Cuscinetti S.p.A.; INA Bearing Co., Inc. and INA Walzlager Schaeffler KG; GMN Georg Muller Nurnberg AG; SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH; Caterpillar, Inc.; Fag Kugelfischer Georg Schaefer KGaA and Fag Bearings Corporation; Hugo Finkenrath OHG, Defendants-Intervenors.
• Court: U.S. Court of International Trade

786 F. Supp. 1021

The TORRINGTON COMPANY, Plaintiff, v. UNITED STATES, Defendant SNR Roulements, SNR Bearings, USA, Inc. and ICSA Industries Cuscinetti S.p.A.; INA Bearing Co., Inc. and INA Walzlager Schaeffler KG; GMN Georg Muller Nurnberg AG; SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH; Caterpillar, Inc.; Fag Kugelfischer Georg Schaefer KGaA and Fag Bearings Corporation; Hugo Finkenrath OHG, Defendants-Intervenors.

Court No. 89-06-00359.

United States Court of International Trade.

February 28, 1992.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Wesley K. Caine, David Scott Nance and

William A. Fennell, Washington, D.C., for Torrington Co.

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 M. McDevitt, Stephanie J. Mitchell and Maria T. Solomon, Atty.-Advisors, Office of the Chief Counsel for Import Admin., Dept. of Commerce, Washington, D.C., of counsel), for U.S.

Donovan Leisure Newton & Irvine, Pierre F. de Ravel d'Esclapon, New York City, for SNR Roulements, SNR Bearings, USA, Inc. and ICSA Industries Cuscinetti S.p.A.

Arent Fox Kintner Plotkin & Kahn, Stephen L. Gibson, Washington, D.C., for INA Bearing Co., Inc. and INA Walzlager Schaeffler KG.

Grunfeld, Desiderio, Lebowitz & Silverman, Bruce M. Mitchell, New York City, for GMN Georg Muller Nurnberg AG.

Howrey & Simon, Paul Plaia, Jr., Herbert C. Shelley, Joel D. Kaufman, Cecilia H. Gonzalez, Alice A. Kipel, Lauren D. Frank, and Juliana M. Cofrancesco, Washington, D.C., for SKF USA, Inc., AB SKF, SKF GmbH and SKF Gleitlager GmbH.

Powell, Goldstein, Frazer & Murphy, Peter O. Suchman, Richard M. Belanger and Neil R. Ellis, Washington, D.C., for Caterpillar, Inc.

Grunfeld, Desiderio, Lebowitz & Silverman, Max F. Schutzman and David L. Simon, New York City, for FAG Kugelfischer Georg Schaefer KGaA and FAG Bearings Corp.

Wilmer, Cutler & Pickering, Leonard M. Shambon, Stavros J. Lambrinidis and Barbara K. Bracher, Washington, D.C., for Hugo Finkenrath OHG.

OPINION

TSOUCALAS, Judge:

Plaintiff, The Torrington Company ("Torrington"), brings this action to challenge the final determination of the Department of Commerce, International Trade Administration ("Commerce" or "ITA"), in the antidumping investigation of antifriction bearings from the Federal Republic of Germany ("Germany"). Final Determinations of Sales at Less Than Fair Value: Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany ("Final Determinations"), 54 Fed.Reg. 18,992 (1989). Pursuant to Rule 56.1 of the Rules of this Court, plaintiff seeks partial judgment upon the agency record regarding that part of the ITA's determination which stated that the petition encompassed five separate classes or kinds of antifriction bearings. Torrington also contests the ITA's decision to discontinue its investigation of the German costs of production and the decision to exclude split pillow block housings from the scope of the investigations.

Discussion

A final determination by the Department of Commerce will be sustained 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, 83 L.Ed. 126 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988). 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 Prods. Corp. v. United States, 10 CIT 626, 628, 645 F.Supp. 289, 291 (1986) (citations omitted).

The Court will not overturn a final antidumping determination 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." Hercules, Inc. v. United States, 11 CIT 710, 755, 673 F.Supp. 454, 490 (1987). The evidence presented by plaintiff "must be enough to convince the Court that a reasonable mind would not have found ITA's evidence sufficient to support its conclusion." Torrington Co. v. United States ("Torrington I"), 14 CIT ___, ___, 745 F.Supp. 718, 723 (1990), aff'd, 938 F.2d 1276 (Fed.Cir.1991).

I. Class or Kind

The facts of this case were set out in detail in Torrington I. Briefly, while Torrington's petition described the subject merchandise as all ground antifriction bearings (except tapered roller bearings) and parts thereof, the ITA subdivided the merchandise into five classes: ball bearings, spherical roller bearings, cylindrical roller bearings, needle roller bearings and spherical plain bearings. 54 Fed.Reg. at 18,999. 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.

Our appellate court has adjudged that, as a matter of law, the ITA has the authority to subdivide the petition's class or kind description when there is substantial evidence to support the subdivision. 938 F.2d at 1277-78. In the case at bar, plaintiff has attempted to prove that antifriction bearings are one class or kind by showing similarities among the various bearings within the framework of the criteria set forth in Diversified Prods. Corp. v. United States, 6 CIT 155, 162, 572 F.Supp. 883, 889 (1983).¹ The Court finds that the similarities among the bearings are outweighed by substantial evidence supporting the finding of five classes or kinds. See Torrington I, 14 CIT at ___, 745 F.Supp. at 723-27. Accordingly, that determination of the ITA is affirmed.

II. Cost of Production

Torrington also claims that the ITA's decision to terminate the investigation of German costs of production ("COP") was not in accordance with law. The Tariff Act of 1930, as amended, 19 U.S.C. § 1677b(b) (1988), provides that, if the ITA "has reasonable grounds to believe or suspect that sales in the home market of the country of exportation ... have been made at prices which represent less than the cost of producing the merchandise ..., such sales shall be disregarded in the determination of foreign market value." A cost of production investigation may be initiated at the request of the petitioner if the petitioner files its request in a timely manner and the information supporting the request meets statutory and judicial standards. 19 U.S.C. § 1677b(b); Al Tech Specialty Steel Corp. v. United States, 6 CIT 245, 250, 575 F.Supp. 1277, 1282 (1983), aff'd, 745 F.2d 632 (Fed.Cir.1984); Floral Trade Council of Davis, Cal. v. United States, 12 CIT 981, 982, 698 F.Supp. 925, 926 (1988).

In its petition, Torrington alleged that sales in the home market of German manufacturers of antifriction bearings ("AFBs") were being made at prices below the cost of production. General Administrative Record ("GAR") (Pub.) Doc. 1 at 102-04. On the basis of the petition's allegations, the ITA initiated an investigation as to the cost of producing AFBs in Germany. The importers objected to the investigation based on the fact that Torrington's allegations relied on a conglomeration of German costs, rather than the company-specific data required by this court in Al Tech. Commerce concurred and on July 22, Commerce asked Torrington to supplement its submissions. GAR (Pub.) Doc. 120.

When Torrington's supplements still did not satisfy the statutory and Al Tech standards, Commerce discontinued the COP investigations in each of the five classes or kinds of bearings as to all the foreign manufacturers. GAR (Pub.) Doc. 160. Plaintiff contends that the company-specific standard is an overly onerous one which is not consistent with the mandates of the Tariff Act.

In Torrington Co. v. United States (Torrington II), 15 CIT ___, 772 F.Supp. 1284 (1991), this Court followed the Al Tech ruling and held that, a plaintiff seeking initiation of a COP investigation must "submit specific and objective evidence that particular producers were selling below cost in their home markets." Id. at ___, 772 F.Supp. at 1288. Cf. Monsanto Co. v. United States, 12 CIT 949, 952-53, 698 F.Supp. 285, 288-89 (1988) (cost investigations for different producers considered separately). The Court adheres to its opinion in Torrington II and finds that Commerce applied the correct standard in deciding to rescind the COP probes in this case. Moreover, Torrington's admitted lack of company-specific data supports Commerce's decision.

After revoking the COP investigations, the ITA afforded Torrington the opportunity to submit revised cost allegations which would satisfy the statutory and judicial standards, and which could result in a re-opening of the COP inquiries. GAR (Pub.) Doc. 164 at 2-3. Petitioner submitted additional data within the ITA's stated deadline and Commerce reactivated the investigations pertaining to ball bearings manufactured by SKF, FAG and GMN, spherical roller bearings made by FAG, cylindrical roller bearings produced by SKF, INA and FAG and needle roller bearings manufactured by SKF and FAG. Preliminary Determinations of Sales at Less Than Fair Value: Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany ("Preliminary Determinations"), 53 Fed.Reg. 45,353, 45,355 (1988).

Commerce did not revive the investigations of ball bearings and needle roller bearings made by INA because, after correcting some methodological errors made by Torrington, the ITA found those sales to be at prices above the cost of production. See GAR (Pub.) Doc. 338. It seems...