Smith Corona Corp. v. US

Decision Date20 September 1988
Docket NumberConsolidated Court No. 87-02-00157.
Citation698 F. Supp. 240
PartiesSMITH CORONA CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and Brother Industries, Ltd., Brother International Corp., Nakajima All Co., Ltd., Canon Inc., Canon U.S.A., Inc., Silver Seiko, Ltd., Silver Reed America, Inc., Matsushita Electric Industrial Co., Ltd., Kyushu Matsushita Electric Industrial Co., Ltd. and Panasonic Company and Panasonic Industrial Company, Divisions of Matsushita Electric Corporation of America, Intervenor-Defendants.
CourtU.S. Court of International Trade

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and John M. Breen, Washington, D.C., Robert E. Walton, New Canaan, Conn., Smith Corona Corp., of counsel, for plaintiff.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Velta A. Melnbrencis, New York City, and Office of the Chief Counsel for Intern. Trade, U.S. Dept. of Commerce, Jean Heilman Grier, Washington, D.C., for defendant.

Tanaka Ritger & Middleton, H. William Tanaka and Patrick F. O'Leary, Washington, D.C., for intervenor-defendants Bro. Industries, Ltd. and Bro. Intern. Corp.

McDermott, Will & Emery, R. Sarah Compton, Kurt J. Olson and John H. Walsh, Washington, D.C., and Patton, Boggs & Blow, Frank R. Samolis and Michael D. Esch, Washington, D.C., for intervenor-defendant Nakajima All Co., Ltd.

Covington & Burling, Harvey M. Applebaum, David R. Grace and Jonathan A. Olsoff, Washington, D.C., and Delson & Gordon, Norman Moloshok and Jeffrey M. Samberg, New York City, for intervenor-defendants Canon Inc. and Canon U.S.A., Inc.

Willkie Farr & Gallagher, Christopher Dunn and Zygmunt Jablonski, Washington, D.C., for intervenor-defendants Silver Seiko, Ltd. and Silver Reed America, Inc.

Weil, Gotshal & Manges, A. Paul Victor, Stuart M. Rosen and Charles H. Bayar, New York City, for intervenor-defendants Matsushita Elec. Indust. Co., Ltd., Kyushu Matsushita Elec. Indus. Co., Ltd. and Panasonic Co. and Panasonic Indus. Co., Divisions of Matsushita Elec. Corp. of America.

OPINION AND ORDER

AQUILINO, Judge:

The International Trade Administration, U.S. Department of Commerce ("ITA") has issued the Final Results of Revised Scope Determination for Antidumping Duty Order on Portable Electric Typewriters from Japan Pursuant to Court Remand.1 The remand was pursuant to an order in conjunction with this court's slip op. 87-145, 11 CIT ___, 678 F.Supp. 285 (1987), and has resulted in a determination that portable electric typewriters containing calculators fall within the ambit of the antidumping-duty order, 45 Fed.Reg. 30,618 (May 9, 1980), while portable electric typewriters capable of text memory do not.

The plaintiff has interposed a motion for judgment on the agency record, as supplemented during remand, requesting, among other things, that the court

(1) hold that the ITA's final remand redetermination with respect to portable electric typewriters incorporating text memory is unsupported by substantial evidence, (2) hold that the ITA's final remand redetermination with respect to portable electric typewriters incorporating a calculator function is supported by substantial evidence and in accordance with law, (3) reverse the redetermination with respect to text-memory portable typewriters, (4) remand the action to the agency for publication of a revised determination....2
The intervenor-defendants oppose plaintiff's motion, and all but Nakajima All Co., Ltd. ("Nakajima") (and the defendant) seek reversal of the ITA's redetermination regarding typewriters with calculators. Intervenor-defendants Brother Industries, Ltd. and Brother International Corp. ("Brother") assert in addition that the ITA's analysis of the scope issue by means of the criteria set forth in Diversified Products Corporation v. United States, 6 CIT 155, 572 F.Supp. 883 (1983), is not in accordance with law, although the result is correct with regard to the typewriters with text memories. Similarly, intervenor-defendants Matsushita Electric Industrial Co., Ltd., Kyushu Matsushita Electric Industrial Co., and Panasonic Company and Panasonic Industrial Company, Divisions of Matsushita Electric Corporation of America ("Panasonic") urge the court to find that the typewriters at issue had been expressly excluded from the original order3. Intervenor-defendants Canon Inc. and Canon U.S.A., Inc. ("Canon") stress the same point and also contend that "there is ... no record evidence supporting the assertion that portable automatic typewriters did not exist at the time of the original investigation"4, and that TSUS item 676.0510 referenced in the 1980 order should control the scope.

The parties have fully briefed and argued their respective positions.

I

As discussed in slip op. 87-145, the original antidumping-duty order covered typewriters which were portable and electric. By the time of the first administrative review thereof, technology had brought forth typewriters which are portable and "electronic". This advancement led the ITA, in conjunction with publication in 1983 of the preliminary results of that first administrative review, to invite interested parties to comment on whether these portable electronic typewriters are within the scope of the 1980 order. Thereafter, the agency concluded that they are — in reasoning reported sub nom. Portable Electric Typewriters From Japan; Final Results of Administrative Review of Anti-dumping Duty Order, 48 Fed.Reg. 7,768, 7,769-70 (Feb. 24, 1983), and repeated at length in slip op. 87-145. The agency's reasoning was based on (1) general physical characteristics, (2) the expectations of the ultimate purchaser, (3) the ultimate use of the merchandise and (4) the channels of trade in which the merchandise moves, the same approach approved by the court in Diversified Products Corporation v. United States, supra, for determining whether merchandise developed after issuance of an antidumping-duty order is nevertheless within the order's scope.5

In any event, the ITA concluded that its order covers portable electric and electronic typewriters, which are referred to from time to time hereinafter as "PETs". Technology has not stood still since then, however, with some machines equipped with calculators and more recently text memories, the latter of which give rise to characterizations of "automatic". In slip op. 87-145, the court found the record "clear that the typewriters at issue ... were not in existence at the times of either the filing of the original petition or the issuance of the May 1980 order"6 and that the order did not expressly exclude them from its coverage. See 11 CIT at ___, 678 F.Supp. at 289-90. See also Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007 (1980), aff'd, 669 F.2d 692 (CCPA 1982); Diversified Products Corporation v. United States, 6 CIT at 160, 572 F.Supp. at 888. This finding was made in the face of intervenor-defendants' contentions to the contrary.

The ITA's scope determination originally challenged in this case was that the PETs with calculators or text memories were excluded from the 1980 order. However, in response to plaintiff's motion to reverse that determination, the defendant took the following position:

After reviewing the administrative record in this case along with arguments advanced by plaintiff in support of its motion for judgment upon the agency record, the ITA concedes that its determination that PETs incorporating calculators or text memory were specifically excluded from the original investigation and order is not supported by substantial evidence in the administrative record. Furthermore, Commerce concedes that its prior conclusion to the effect that under the criteria established in Diversified Products, ... PETs incorporating calculators or text memory should be excluded from the scope of the outstanding antidumping duty order on portable electric typewriters from Japan is not supported by substantial evidence. Therefore, the Department requests that that part of this consolidated case which deals with the scope issue (the entire Court No. 84-1-00046 and Count 8 of the complaint in Court No. 87-02-00157) be remanded so that it can reconsider its scope determination and publish a revised scope determination which would be supported by substantial evidence in the administrative record.7

In contrast to this position, the intervenor-defendants urged the court to search the record for substantial evidence. The court did so, but found the facts tending to support their position insubstantial and therefore granted the remand.

Now that the record has been supplemented, the intervenor-defendants do not show that it contains evidence that the PETs presently at issue had been excluded from the 1980 antidumping-duty order. Rather, they repeat arguments already considered unpersuasive in slip op. 87-145, 11 CIT ___, 678 F.Supp. 285.

II

Under 19 U.S.C. § 1516a(b)(1)(B), the standard of review to which the court must adhere in considering the remand results is whether they are supported by substantial evidence on the record and are otherwise in accordance with law. See, e.g., Ceramica Regiomontana, S.A. v. United States, 10 CIT ___, 636 F.Supp. 961, 965 (1986), aff'd, 810 F.2d 1137 (Fed. Cir.1987). As pointed out, for example, in Carlisle Tire & Rubber Co. v. United States, 9 CIT 520, 523, 622 F.Supp. 1071, 1074-75 (1985), the "substantial evidence standard `frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute'", quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966). Nevertheless, findings must be based on "`such relevant evidence as a reasonable mind might accept as...

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