Torrington Co. v. US

• Decision Date: 03 April 1992
• Docket Number: No. 91-05-00355.,91-05-00355.
• Citation: 790 F. Supp. 1161
• Parties: The TORRINGTON COMPANY, Plaintiff, v. The UNITED STATES, Defendant, and NTN Bearing Corporation of America, et al., Defendants-Intervenors.
• Court: U.S. Court of International Trade

790 F. Supp. 1161

The TORRINGTON COMPANY, Plaintiff, v. The UNITED STATES, Defendant and NTN Bearing Corporation of America, et al., Defendants-Intervenors.

No. 91-05-00355.

United States Court of International Trade.

April 3, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Lane S. Hurewitz, Myron A. Brilliant and Serena L. Wilson, Washington, D.C., for plaintiff.

James A. Toupin, Asst. Gen. Counsel, Marc A. Bernstein, Office of Gen. Counsel, U.S. Intern. Trade Com'n, Washington, D.C., for defendant.

Barnes, Richardson & Colburn, Robert E. Burke, Donald J. Unger, Brian F. Walsh, James A. Karamanis and Diane A. MacDonald, Chicago, Ill., for NTN Bearing Corp. of America, American NTN Bearing Mfg. Corp., NTN Bearing Corp. of Canada and Tung Pei Indus. Co., Ltd., defendants-intervenors.

Howrey & Simon, Herbert C. Shelley, Alice A. Kipel, Juliana M. Cofrancesco and Jennifer Rie, for SKF USA, Inc., SKF Argentina S.A., SKF Steyr Ges.m.b.H., SKF do Brazil Ltda. and SKF Industrias Mexicanas, S.A. de C.V., defendants-intervenors.

Grunfeld, Desiderio, Lebowitz & Silverman Max F. Schutzman, David L. Simon and Andrew B. Schroth, for FAG bearings Ltd., FAG Austria Walzlager, Rolamentos FAG Ltda., Sammi Precision Bearings Industries Co. and FAG Bearings Corp., defendants-intervenors.

Venable, Baetjer, Howard & Civiletti, John Gurley, for Peer Bearing Co., defendant-intervenor.

Bryan, Cave, McPheeters & McRoberts, Peter D. Ehrenhaft and Lizbeth R. Levinson, for Magyar Gordulocsapagy Muvek, Impexmetal, Fabryka Lozysk Tocznych-Kielce and Fabryka Lozysk Tocznych-Krasnik, defendants-intervenors.

Donovan, Leisure, Rogovin, Huge & Schiller, Michael P. House, Jae Chang Lee and Raymond Paretzky, for Korea Machinery Co., Ltd. and Golden Bell U.S.A. Co., defendants-intervenors.

Baker & McKenzie, Kevin M. O'Brien, for Emerson Power Transmission Co., defendant-intervenor.

MEMORANDUM OPINION AND ORDER

DiCARLO, Chief Judge:

Plaintiff brings this action challenging the negative preliminary determinations of injury by the U.S. International Trade Commission in the antidumping and countervailing duty investigations regarding Ball Bearings, Mounted or Unmounted, and Parts Thereof, from Argentina, Austria, Brazil, Canada, Hong Kong, Hungary, Mexico, the People's Republic of China, Poland, the Republic of Korea, Spain, Taiwan, Turkey, and Yugoslavia, 56 Fed. Reg. 14,534 (Int'l Trade Comm'n 1991) (neg. prelim.). The Court has jurisdiction under 19 U.S.C. § 1516a(a)(1)(C) (1988) and 28 U.S.C. § 1581(c) (1988). The Court affirms the Commission's determinations and holds the Commission did not abuse its discretion: 1) in relying upon questionnaire data in determining the condition of the domestic industry; 2) by declining to exclude related parties from its consideration of the condition of domestic industry; 3) in concluding there was no reasonable indication of material injury or threat of material injury to the domestic industry; and 4) by declining to cumulate imports.

STANDARD OF REVIEW

The Commission's role in a preliminary determination is to decide, on "the best information available to it at the time," whether there is a reasonable indication that a domestic industry is being materially injured or threatened with material injury by reason of imports of the merchandise under investigation. 19 U.S.C. § 1673b(a) (1988). The Court of Appeals for the Federal Circuit has affirmed the Commission's practice of reaching a negative preliminary determination of injury only when: 1) the record as a whole contains clear and convincing evidence that there is no material injury or threat of injury by reason of imports, and; 2) there is no likelihood that contrary evidence will arise in a final investigation. American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 55, 785 F.2d 994, 1001 (1986). This Court must uphold a negative preliminary injury determination of the Commission unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(A) (1988). For this purpose, the Court is to "`ascertain whether there was a rational basis in fact for the determination.'" American Lamb, 4 Fed.Cir. (T) at 59, 785 F.2d at 1004 (quoting S.Rep. No. 249, 96th Cong., 1st Sess. 252 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 638).

DISCUSSION

A. The Commission's Reliance Upon Questionnaire Data

The Commission determined that the industry against which it was to assess the impact of the alleged less than fair value (LTFV) imports was the industry producing ground ball bearings, mounted and unmounted, and parts thereof. Ball Bearings, Mounted or Unmounted, and Parts Thereof, from Argentina, Austria, Brazil, Canada, Hong Kong, Hungary, Mexico, the People's Republic of China, Poland, the Republic of Korea, Spain, Taiwan, Turkey and Yugoslavia, Inv. Nos. 701-TA-307 and 731-TA-498-511, USITC Pub. 2374 at 1 n. 3 (Apr.1991) (prelim.). It sent questionnaires to 51 firms it had reason to believe produced ball bearings, or parts thereof, in the United States during the calendar years 1988-90. Id. at A-24. The Commission received usable responses from 25 producers.

The Commission concluded the questionnaire data were sufficiently complete to provide an accurate characterization of the condition of the domestic industry and that there was no likelihood that additional evidence obtained in a final investigation would produce a materially different view of the industry. Id. at 19. It determined that during the period of investigation factors relating to domestic consumption and production were generally positive, the market share of domestic producers remained at high levels, employment-related indicators were uniformly positive and profitability changed little, despite large annual fluctuations. Id. at 19-21. Also, the Commission noted that since production increased at a greater rate than consumption, inventories of complete ball bearings increased throughout the period of investigation. In addition, the Commission cited increases in prices and positive investment-related indicators as factors leading to its conclusion that the industry was in a strong condition. Id. at 21-22.

Plaintiff contends the Commission abused its discretion by relying upon incomplete questionnaire data. Plaintiff also complains the Commission erred in concluding the record clearly and convincingly supported a negative determination since the questionnaire data conflicted with data compiled by the Bureau of the Census. Plaintiff further asserts the Commission abused its discretion by not attempting to reconcile the conflicting data.

Plaintiff argues the Commission relied upon questionnaire data containing information from only half of the known producers of ball bearings. The Commission is required to make its preliminary determination within 45 days based upon the "best information available to it at the time." 19 U.S.C. 1673b(a); see Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 133-34, 744 F.2d 1556, 1561 (1984) (noting the extremely short deadlines built into the antidumping law). All of the known domestic producers were surveyed. Three firms indicated they did not produce ground ball bearings or parts during the period of investigation. Other firms responded too late for their responses to be incorporated into the staff report presented to the Commission at the time of the vote in these investigations or provided data in a form that could not be incorporated into the staff report. The information provided by the 25 producers represented a substantial majority of domestic production, accounting for an estimated 74%, by quantity, of producers' total shipments of complete ground ball bearings in 1989 and for 68%, by value, of 1989 producers' total shipments of ball complete ground bearings and parts. USITC Pub. 2374 at 19 & A-24. Under these circumstances, the Commission did not abuse its discretion in determining its questionnaire data were sufficiently complete to accurately describe the condition of the domestic industry.

Plaintiff also contends the record does not clearly and convincingly support a negative determination because the questionnaire data conflicted with the Bureau of the Census data contained in plaintiff's petition and post-conference submissions. Plaintiff claims the Census data show declining trends in: 1) the quantity and value of producers' total domestic shipments of complete ground ball bearings, 2) the quantity and value of producers' share of apparent domestic consumption of complete ground ball bearings, 3) the quantity of domestic production of complete ground ball bearings and parts, 4) capacity utilization and 5) the value of apparent domestic consumption of complete ground ball bearings and parts. Plaintiff states that compared to the questionnaire data, the Census data show steeper decreases in the quantity of apparent domestic consumption of complete ground ball bearings and steeper increases in market penetration, in quantity and value, by the subject imports. Plaintiff, therefore, asserts that the Commission abused its discretion in concluding additional evidence obtained in a final investigation would not produce a materially different view.

Since Census data were only available for 1988-89, they did not provide information for the entire 1988-90 period of investigation. Also, the merchandise under investigation includes only ground bearings, mounted or unmounted and parts. USITC Pub. 2374 at 1 n. 3. The Census documents provide segregated data for ground bearings only for the quantity and value of producers' total shipments. The Bureau of the Census, U.S. Dep't of Commerce, MA35Q(99)-1, Current Industrial Reports: Antifriction Bearings 1989, Table 1B (Sept.1990). The export statistics in the Census report provide only aggregate data for ground and unground bearings. Id. at...