Kyd Inc. v. United States

• Decision Date: 28 April 2011
• Docket Number: Slip Op. 11–49.Court No. 09–00034.
• Citation: 779 F.Supp.2d 1361
• Parties: KYD, INC., Plaintiff,v.UNITED STATES, Defendant,andPolyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation, Defendant–Intervenors.
• Court: U.S. Court of International Trade

779 F.Supp.2d 1361

KYD, INC., Plaintiff,

v.UNITED STATES, Defendant,andPolyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation, Defendant–Intervenors.

Slip Op. 11–49.Court No. 09–00034.

United States Court of International Trade.

April 28, 2011.

Riggle & Craven (David J. Craven) for Plaintiff KYD, Inc.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Carrie A. Dunsmore and Stephen C. Tosini); and Scott D. McBride, U.S. Department of Commerce, Of Counsel, for Defendant United States.King & Spalding LLP (Stephen A. Jones and Daniel L. Schneiderman) for Defendant–Intervenors Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation.

OPINION

WALLACH, Judge.

IINTRODUCTION

As a U.S. importer of polyethylene retail carrier bags (“PRCBs”) from Thailand, Plaintiff KYD, Inc. (“KYD”) continues its challenge to determinations made by the U.S. Department of Commerce (“Commerce”) in the 2006–07 administrative review of the antidumping duty order covering these bags. This challenge is limited to entries of the subject merchandise that were imported by KYD from King Pac Industrial Co., Ltd. (“King Pac”) and Master Packaging Co., Ltd. (“Master Packaging”) and are covered by this third administrative review (“the entries at issue”). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c).

In May 2010, the court remanded the instant action to Commerce. See KYD, Inc. v. United States, 704 F.Supp.2d 1323 (CIT 2010) (“ KYD II ”). Familiarity with KYD II is presumed. In September 2010, Commerce issued its Final Results of Redetermination. See Final Results of Redetermination (Doc. No. 66) (“Redetermination”).

Commerce is permitted to select rather than calculate an antidumping duty rate for the entries at issue. Furthermore, it may select a rate that is adverse to KYD. However, that rate must nonetheless be supported by substantial evidence and otherwise in accordance with law. Because the particular rate actually selected—122.88 percent—does not satisfy this standard with respect to the entries at issue, this matter is again REMANDED to Commerce.

IIBACKGROUND

KYD commenced the instant action to challenge the final results of Commerce's 2006–07 administrative review of an antidumping duty order covering certain plastic bags imported from Thailand. See Complaint (Doc. No. 7) at 1; Polyethylene Retail Carrier Bags from Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 74 Fed.Reg. 2,511, 2,511 (January 15, 2009) (“Final Results”); see generally KYD II, 704 F.Supp.2d at 1323–27 (describing this third administrative review).

Because two exporters that are unaffiliated with KYD—King Pac and Master Packaging—impeded this administrative review, Commerce used what it calls total adverse facts available (“TAFA”) to assign each of these exporters an antidumping duty rate of 122.88 percent. KYD II, 704 F.Supp.2d at 1326–27. This TAFA rate had been applied to King Pac in the second administrative review and was the highest transaction-specific rate alleged in the 2003 petition. See id.

In contrast to King Pac and Master Packaging, KYD actively participated in the third administrative review by providing information about its purchases from these exporters. See id. at 1325–26. Indeed, the record strongly suggests that Master Packaging would not have received any form of adverse facts available (“AFA”) rate but for the information volunteered by KYD. See id.¹ Nonetheless, Commerce selected 122.88 percent as the assessment rate for KYD's relevant entries. See id. at 1326.

In KYD II, the court held that substantial evidence did not support Commerce's implicit decision to disregard KYD's price information. See id. at 1324. Commerce had determined the assessment rate for KYD's entries “without regard to the information submitted by KYD even though it made no finding under 19 U.S.C. § 1677e(b) that KYD had failed to cooperate and no finding under 19 U.S.C. § 1677m(e) that it could decline to consider KYD's information.” Id. The court therefore remanded the matter to Commerce to “either consider this information in determining an assessment rate for KYD's entries or explain why it can decline to do so pursuant to 19 U.S.C. § 1677m(e).” Id. at 1334.

The court did not resolve KYD's arguments “that the total adverse facts available dumping rate that Commerce selected for King Pac and Master Packaging was improperly corroborated and impermissibly punitive.” Id. at 1328 n. 6. Although the court had “previously rejected similar arguments” when it upheld application of the same rate to King Pac in the second administrative review, it acknowledged that “[r]eassessment of these arguments may be appropriate in light of” Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed.Cir.2010) (vacating and remanding Gallant Ocean (Thailand) Co. v. United States, 602 F.Supp.2d 1337 (Wallach, J.)). Id. Three weeks after KYD II, the Federal Circuit affirmed the court's decision concerning that second administrative review. See KYD, Inc. v. United States, 607 F.3d 760 (Fed.Cir.2010) (affirming KYD, Inc. v. United States, 613 F.Supp.2d 1371 (CIT 2009)) (collectively “ KYD I ”); see also infra Part IV.D.

On remand, Commerce explained why it declined to use KYD's information to calculate dumping margins, see Redetermination at 4–9, and took issue with the court's statement of relevant antidumping law, see id. at 3, 9–10, 15–16, 18, 20–21, 22, 23–24. In particular, Commerce reiterated its position that “the antidumping duty statute does not require, or even contemplate, the Department calculating separate dumping margins for individual importers.” Id. at 3; see also infra Parts IV.A–B.

IIISTANDARD OF REVIEW

The court will hold unlawful a determination by Commerce resulting from an administrative review of an antidumping duty order if that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see 19 U.S.C. § 1516a(a)(2)(B)(iii).

A determination is supported by substantial evidence if the record contains “evidence that a reasonable mind might accept as adequate to support a conclusion.” Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed.Cir.2007) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Such evidence must be “more than a mere scintilla.” Ad Hoc Shrimp Trade Action Comm. v. United States, 618 F.3d 1316, 1321 (Fed.Cir.2010) (quoting Ningbo Dafa Chem. Fiber Co. v. United States, 580 F.3d 1247, 1253 (Fed.Cir.2009)). The “court reviews the record as a whole, including any evidence that ‘fairly detracts from the substantiality of the evidence,’ in determining whether substantial evidence exists.” Gallant, 602 F.3d at 1323 (quoting Micron Tech., Inc. v. United States, 117 F.3d 1386, 1393 (Fed.Cir.1997)).

To determine whether Commerce's interpretation and application of an antidumping statute at issue is otherwise “in accordance with law,” the court must conduct the two-step analysis articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001) (“[S]tatutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under Chevron.”).

Under the first step of the Chevron analysis, the court must ascertain “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 (Fed.Cir.2007) (quoting Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778). Of particular importance to the instant action is the “strong presumption that ‘Congress expresses its intent through the language it chooses' and that the choice of words in a statute is therefore deliberate and reflective,” Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, 1347 (Fed.Cir.2004) (quoting INS v. Cardoza–Fonseca, 480 U.S. 421, 433 n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Without more, “[i]t is not for [the court] to try to avoid the conclusion that Congress did not mean what it said.” Miles v. United States, 61 Cust. Ct. 245, 248, 61 Cust.Ct. 245, 290 F.Supp. 395 (1968) (quoting Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64, 73 S.Ct. 580, 97 L.Ed. 821 (1953)); see also Wheatland Tube, 495 F.3d at 1359.

The court reaches the second step of the Chevron analysis only “if the statute is silent or ambiguous with respect to the specific issue.” Wheatland Tube, 495 F.3d at 1359 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Under this step, the court must evaluate whether Commerce's interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The agency's construction need not be the only reasonable interpretation or even the most reasonable interpretation. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978). The court must defer to Commerce's reasonable interpretation of a statute even if it might have adopted another interpretation had the question first arisen in a judicial proceeding. Id.

IVDISCUSSION

This action is properly limited to entries of the subject merchandise that were imported by KYD from King Pac and Master Packaging and are covered by the third administrative review. See infra Parts IV.A–B. Because King Pac and Master Packaging were uncooperative, Commerce is required to use the facts otherwise available to...