Seattle Marine Fishing Supply Co. v. US

• Decision Date: 26 January 1988
• Docket Number: Court No. 83-10-01552.
• Citation: 12 CIT 60,679 F. Supp. 1119
• Parties: SEATTLE MARINE FISHING SUPPLY CO., Nordby Supply Co., Redden Net Co., Fisheries Supply Co., Lummi Fisheries Supply Co., Nets, Inc., Tacoma Marine Supply, Astoria Marine Supply, and Englund Marine Supply, Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

679 F. Supp. 1119

12 CIT 60

SEATTLE MARINE FISHING SUPPLY CO., Nordby Supply Co., Redden Net Co., Fisheries Supply Co., Lummi Fisheries Supply Co., Nets, Inc., Tacoma Marine Supply, Astoria Marine Supply, and Englund Marine Supply, Plaintiffs, v. UNITED STATES, Defendant.

Court No. 83-10-01552.

United States Court of International Trade.

January 26, 1988.

George R. Tuttle, P.C., (George R. Tuttle, Gary C. Cooper, and George R. Tuttle III, San Francisco, Cal., on the motion), for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, New York City (Sheila N. Ziff, Washington, D.C., on the motion), for defendant.

MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

Plaintiffs, Seattle Marine Fishing Supply Co., et al. (plaintiffs), commence this action pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (1982), contesting the Department of Commerce, International Trade Administration's (ITA) administrative review of its antidumping investigation of fish netting from Japan. Fish Netting of Manmade Fibers From Japan, 37 Fed. Reg. 11560 (1972). Plaintiffs seek judicial review, pursuant to Rule 56.1 of the rules of this Court, of the ITA's final results of the administrative review published in Fish Netting of Man-Made Fibers From Japan; Final Results of Administrative Review of Antidumping Finding, 48 Fed. Reg. 43210 (1983), claiming the ITA's final administrative review determination was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence on the record, or otherwise not in accordance with law. Upon review of the record and the papers submitted by the parties, the Court finds the ITA's determination was neither arbitrary, capricious, nor an abuse of discretion, and was supported by substantial evidence on the record and was otherwise in accordance with law. Plaintiff's motion is denied and this action is dismissed.

FACTS

The following facts do not appear to be in dispute. Plaintiffs are United States importers of fish netting, including the same merchandise at issue in this action. On June 9, 1972, the Department of Treasury (Treasury) issued a dumping finding with respect to fish netting from Japan. Fish Netting of Manmade Fibers From Japan, 37 Fed.Reg. 11560 (1972). On or about January 2, 1979, the United States Customs Service (Customs) submitted an exporter's sales price questionnaire to Momoi Company, Inc., San Diego, California, a company related to Momoi Fishing Net Manufacturing Co., Ltd. of Japan (Momoi). Momoi is an exporter and manufacturer of fish netting of manmade fiber. The questionnaire requested updated sales data covering the time period September 1, 1976 through March 31, 1978 in order to determine exporter's sales price. The accompanying cover letter stated: "If the requested data is not supplied within 30 days, the Customs Service will proceed with the antidumping appraisements based on the best information available." Document No. 1 of the Administrative Record of the first administrative review, Seattle Marine Fishing Supply Co. v. United States, Court No. 83-10-01552 (A.R.R.).

On January 2, 1980, authority for administering the antidumping and countervailing duty laws was transferred from Treasury to the ITA, pursuant to the Trade Agreements Act of 1979, 19 U.S.C. 1677(1) (1980). On March 28, 1980, the ITA published notice it was conducting administrative reviews of all outstanding antidumping findings and orders. The appended list of antidumping orders included the dumping finding of June 9, 1972, covering fish netting of manmade fibers from Japan. The notice included the following:

Pursuant to section 751(a)(1) of the Tariff Act of 1930, as amended (93 Stat. 175, 19 U.S.C. 1675(a)(1), this notice is to advise the public that the Department of Commerce is conducting an administrative review of findings of dumping under the Antidumping Act, 1921, to determine the foreign market value and United States price of each entry of merchandise subject to the finding and included within the determination (i.e., for each finding, all entries with dates of purchase or export, as appropriate, occuring subsequent to the period covered by the last published master list, or, as a minimum, the last 12-month period); and to determine the amount, if any, by which the foreign market value exceeds the United States price.

Section 751(a)(1) provides that administrative review take place at least once during the 12-month period beginning on the anniversary of the date of publication of all findings under the Antidumping Act, 1921, or orders under title VII of the Tariff Act of 1930, as amended (93 Stat. 150). Current findings and their dates of publications are listed in the Appendix to this notice. The administrative review of the findings listed in appendix will be completed by the anniversary in 1981 of the date of publication of the finding. Questionnaires are being, or will be, delivered to affected foreign manufacturers, producers or exporters. The responses will be analyzed and then, in accordance with section 353.53(d) of the Commerce Regulations (19 CFR 353.53(d), 45 FR 8205), the parties to the proceeding can request disclosure of the non-confidential information (or, pursuant to an administrative protective order, of confidential information) on the basis of which the determination will be made. Where disclosure is requested, it will be made generally about 30 days prior to the date a notice of review is published. Written views may be presented, and an opportunity to present oral views may be requested, by any party to whom disclosure was made. After providing an opportunity for comment by interested parties, the Department of Commerce will publish in the Federal Register the results of such review, together with notice of any antidumping duties to be assessed and estimated antidumping duties to be deposited.

This notice is published pursuant to section 751(a)(1) of the Act (93 Stat. 175, 19 U.S.C. 1675(a)(1)).

Administrative Review of Antidumping Determinations, 45 Fed.Reg. 20511, 20511-512 (1980).

In August of 1980, the ITA submitted questionnaires to Momoi and other exporters of fish netting from Japan, requesting sales data for the period April 1, 1978 through May 31, 1980. The letter to Momoi, dated August 6, 1980, requested submission of the answers to the ITA "within 30 days from the date the questionnaire is received" and warned Momoi that "any undue delays or lack of response may result in the ITA proceeding with appraisements based on the best information available." A.R.R. at doc. 56.

A letter dated September 17, 1980 and addressed to the ITA from Momoi was received by the ITA. The letter referred to the questionnaire it had received from the ITA and responded it had previously replied with a request for a one month extension of time due to the absence of its manager who would complete the questionnaire when he returned October 10, 1980. A.R.R. at doc. 71. The ITA denies having any such knowledge, on the record, of receiving this letter.

By cable, dated November 18, 1980, to the U.S. Embassy in Tokyo, the ITA communicated its receipt of 17 out of 43 responses to the questionnaires and only two of the 26 non-responding firms had been granted extensions, both of which were also overdue. The ITA requested advice on the intentions of the nonresponding firms. A.R.R. at doc. 110. By cable, dated November 19, 1980, the U.S. Embassy in Tokyo advised the ITA it was closing the files in connection with ten of the 26 nonresponding firms, including Momoi. The cable indicated that Momoi's response was due on September 27, 1980, and that the embassy had "followed up" on the matter on October 31, 1980. A.R.R. at doc. 111.

On May 5, 1981, the ITA published its first preliminary results of the administrative review for the periods 1976-1978 and 1978-1980 for fish netting of manmade fibers from Japan which covered 21 manufacturers and 25 exporters. The notice stated 35 firms, including Momoi, either "refused to respond or provided inadequate responses of to the questionnaires. The notice continued the ITA used the best information available for those nonresponding firms. This information consisted of third country sales to Canada of fish netting as the best evidence of fair market value to compare to the export sales price to the United States. Fish Netting of Manmade Fibers From Japan; Preliminary Results of Administrative Review of Antidumping Finding, 46 Fed.Reg. 25118 (1981).

On June 1, 1981, the U.S. Embassy received Momoi's answers to the 1979 Treasury questionnaires for the period September 1, 1976 through March 31, 1978, and to the ITA questionnaires for the period December 1, 1977 through May 31, 1980. A.R.R. at doc. 212. On June 12, 1981, the ITA held a hearing over the preliminary results of the administrative review of the fish netting from Japan. At this hearing, the Director of the Office of Compliance of the ITA stated the position of the ITA that where firms had made a good faith effort to respond to the questionnaires, but had responded inadequately or could show mitigating circumstances for failure to respond, supplemental responses would be accepted for filing. In the case of nonresponding companies failing to demonstrate a good fair effort to submit information, the Director stated the ITA would use the best information available pursuant to 19 U.S.C. § 1677e(b), which provides as follows:

(b) Determinations to be made on best information available

In making their determinations under this subtitle, the administering authority and the Commission shall, whenever a party or any other person refuses or is unable to produce information requested in a timely manner and in the form required, or otherwise significantly impedes an

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