Asahi Chemical Industry Co., Ltd. v. US

• Decision Date: 14 September 1982
• Docket Number: Court No. 81-7-00922.
• Citation: 4 CIT 120,548 F. Supp. 1261
• Parties: ASAHI CHEMICAL INDUSTRY COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant, American Yarn Spinners Association, Party-in-Interest.
• Court: U.S. Court of International Trade

548 F. Supp. 1261

4 CIT 120

ASAHI CHEMICAL INDUSTRY COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant American Yarn Spinners Association, Party-in-Interest.

Court No. 81-7-00922.

United States Court of International Trade.

September 14, 1982.

Barnes, Richardson & Colburn, New York City (Edwin F. Rains, James S. O'Kelly and Sandra Liss, New York City, of counsel), for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., (David M. Cohen, Director, Commercial Litigation Branch, New York City, Velta A. Melnbrencis, New York City, on the brief), for defendant.

Leva, Hawes, Symington, Martin & Oppenheimer, Washington, D.C. (Joseph H. Price and Simeon M. Kriesberg, Washington, D.C., on the brief), for party-in-interest and American Yarn Spinners Ass'n.

MALETZ, Judge.

This action involves the construction of section 751(a) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, 19 U.S.C. § 1675(a) (Supp. IV 1980). Section 751(a) provides, among other things, for periodic review by the Department of Commerce of antidumping duty orders at least once every 12 months. Plaintiff Asahi Chemical Industry Company, Ltd. (Asahi) contests a final determination by the International Trade Administration of the Department of Commerce (ITA) under this section. The ITA found that a dumping margin of 29.05 percent existed as to Asahi for the review period and, accordingly, ordered that cash deposits of estimated antidumping duties be imposed on future shipments of Asahi's merchandise to the United States. The ITA reached this determination notwithstanding that no Asahi merchandise entered the United States during the review period.

Asahi has moved and defendant United States (the Government) and Party-in-Interest American Yarn Spinners Association (AYSA) have cross-moved for judgment on the administrative record, pursuant to rule 56.1 of the rules of this court. For the reasons stated, Asahi's motion is denied, and the Government's and AYSA's cross-motions are granted.

Facts

The material facts are not in dispute. After an investigation of spun acrylic yarn from Japan in 1979, the Department of the Treasury found less than fair value (LTFV) margins ranging from 6.13 to 58.21 percent on sales of the merchandise from Asahi. Margins were found on 100 percent of the Asahi sales examined; the weighted average margin was 29.05 percent. 44 Fed.Reg. 61,492, 61,493 (1979). The International Trade Commission determined that such unfairly priced yarn from Japan was causing injury to the domestic industry. 45 Fed. Reg. 19,682 (1980). Accordingly, the Department of Commerce, to which the responsibilities previously held by the Treasury Department had been transferred, ordered the imposition of antidumping duties on Asahi's shipments of spun acrylic yarn to the United States. 45 Fed.Reg. 24,127 (1980).

Pursuant to its statutory responsibility under section 751(a) of the Tariff Act of 1930, as amended, the ITA initiated an administrative review of the outstanding antidumping duty order, which review covered sales during the 8½ month period from July 13, 1979 to March 31, 1980. The ITA found that Asahi had not shipped spun acrylic yarn to the United States during this period, but nevertheless required a deposit of estimated antidumping duties equal to the LTFV margin on the most recent Asahi sales to the United States, i.e., 29.05 percent. 46 Fed.Reg. 32,928, 40,912 (1981).

The Parties' Constructions of Section 751(a)

Section 751(a) provides in part as follows:

SEC. 751. ADMINISTRATIVE REVIEW OF DETERMINATIONS.

(a) Periodic Review of Amount of Duty. —

(1) In general. — At least once during each 12-month period beginning on the anniversary of the date of publication of ... an antidumping duty order under this title ... the administering authority, after publication of notice of such review in the Federal Register, shall —

* * * * * *

(B) review, and determine (in accordance with paragraph (2)), the amount of any antidumping duty...

* * * * * *

and shall publish the results of such review, together with notice of any ... estimated duty to be deposited, ... in the Federal Register.

(2) Determination of antidumping duties. — For the purpose of paragraph (1)(B), the administering authority shall determine —

(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and

(B) the amount, if any, by which the foreign market value of each such entry exceeds the United States price of the entry.

The administering authority, without revealing confidential information, shall publish notice of the results of the determination of antidumping duties in the Federal Register, and that determination shall be the basis for the assessment of antidumping duties on entries of the merchandise included within the determination and for deposits of estimated duties.

Asahi contends that section 751(a) is clear and unambiguous. Read literally, Asahi argues that that section provides that periodic review determinations are to be based exclusively on facts and circumstances as they exist during the review period. It insists that information falling outside of the review period is not to be considered by the ITA. According to Asahi, the ITA is thus restricted to the review period for the purpose of data gathering. Therefore, Asahi concludes, if no shipments of merchandise to the United States have been made during the review period, then no LTFV margin exists and no deposit of estimated duties on the next entry of Asahi's merchandise into the United States may be required.

The party-in-interest, AYSA, also employs a literal interpretative approach but reaches an opposite conclusion, namely that section 751(a) requires the deposit of estimated duties even though there have been no entries of merchandise during the review period. Read literally, AYSA continues, section 751(a)(2) contemplates that where no entries of merchandise have occurred during that period, an LTFV margin must nevertheless be calculated. In such a situation, AYSA concludes, the ITA must determine the LTFV margin based on the most recent information available to it.

Unlike Asahi and AYSA, the Government maintains that section 751(a) is silent on this question. However, the Government argues, in light of the Trade Agreements Act of 1979 as a whole and its legislative history, Congress intended that under section 751(a) all entries of merchandise under an antidumping duty order — with specific exceptions not applicable here — be subject to estimated duties during the pendency of that order. Thus, according to the Government, Congress did not intend to excuse the deposit of estimated duties on future entries when no shipments have entered the United States during a particular review period.

Opinion

At the outset, I think it clear — contrary to the positions of plaintiff and AYSA — that section 751(a) does not address the question of how LTFV margins are to be determined when no shipments have been made during a review period. At the same time, faced with this situation, the ITA — the agency charged with administering periodic reviews under section 751(a) — has consistently interpreted the section as requiring resort to the most recent price and value information available to it to determine LTFV margins.¹

It is of course basic that in order to sustain an agency's interpretation, a court need not find its interpretation to be the only reasonable one or even that it is the result which the court itself would have reached had the question arisen in the first instance in judicial proceedings. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978). For the reasons that follow, the ITA interpretation is "sufficiently reasonable" to be accepted by the court. Id. at 450, 98 S.Ct. at 2445; Train v. Colorado Pub. Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976).²

While it is true that "the starting point in every case involving construction of a statute is the language itself," Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975), nevertheless, as noted by the Supreme Court in Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962):

The decisions of this Court have repeatedly warned against the dangers of an approach to statutory construction which confines itself to the bare words of a statute, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457, 459-462 12 S.Ct. 511, 512-13, 36 L.Ed. 226; Markham v. Cabell, 326 U.S. 404, 409 66 S.Ct. 193, 195, 90 L.Ed. 165....

Id. at 710, 82 S.Ct. at 1067. See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980). Learned Hand observed in this same connection that:

It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945).

What seems evident from a careful examination of the legislative history of the Trade Agreements Act of 1979 is that Congress did not expressly address itself to the issue of how dumping margins are to be determined when no shipments of merchandise have been made during a review period.³ Confronted with that problem and faced with an identical issue of statutory construction, Judge Leventhal, speaking for the District of Columbia Circuit Court of Appeals in District of Columbia v. Orleans, 406 F.2d 957 (D.C.Cir.1968), wrote that:

The court's effort must be to discern dispositive legislative intent by "projecting as well as it could how the legislature would have dealt with the concrete situation

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