National Knitwear & Sportswear Ass'n v. US

• Citation: 779 F. Supp. 1364
• Decision Date: 15 November 1991
• Docket Number: Court No. 90-10-00537.
• Parties: NATIONAL KNITWEAR & SPORTSWEAR ASSOCIATION, Plaintiff, v. UNITED STATES, Defendant, and Peninsula Knitters Ltd. and Fang Brothers Knitting Ltd., Defendants-Intervenors.
• Court: U.S. Court of International Trade

779 F. Supp. 1364

NATIONAL KNITWEAR & SPORTSWEAR ASSOCIATION, Plaintiff, v. UNITED STATES, Defendant and Peninsula Knitters Ltd. and Fang Brothers Knitting Ltd., Defendants-Intervenors.

Court No. 90-10-00537.

United States Court of International Trade.

November 15, 1991.

Gibson, Dunn & Crutcher, Donald Harrison and Judith A. Ott, Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis, Thomas G. Ehr, of counsel, Atty. Advisor, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.

Grunfeld, Desiderio, Lebowitz & Silverman, Bruce M. Mitchell, Max F. Schutzman and David L. Simon, New York City, for defendants-intervenors.

MEMORANDUM OPINION AND ORDER

CARMAN, Acting Chief Judge:

Plaintiff seeks review of the final determination of the International Trade Administration, United States Department of Commerce, entitled, Final Determination of Sales at Less Than Fair Value: Sweaters Wholly or in Chief Weight of Man-Made Fiber from Hong Kong, 55 Fed.Reg. 30,733 (July 27, 1990) ("Final Determination"). Pursuant to Rule 56.1 of the Rules of this Court, Plaintiff seeks judgment upon the agency record regarding Commerce's action in excluding the affirmative dumping margin rate assigned to Prosperity, one of the respondents in the underlying investigation, in the "all others" rate. Defendant seeks to sustain the Final Determination as supported by substantial evidence on the record and otherwise in accordance with law. Defendant-Intervenors, Hong Kong manufacturers and exporters of the subject merchandise, join Defendant.

BACKGROUND

On September 22, 1989, National Knitwear & Sportswear Association ("NKSA") filed a petition concurrently with the United States Department of Commerce ("Commerce" or "Department") and the United States International Trade Commission ("Commission") for an antidumping investigation of sweaters made wholly or in chief weight of man-made fiber ("MMF sweaters") from Hong Kong, Taiwan, and the Republic of Korea. NKSA alleged that the imported sweaters were being, or were likely to be, sold in the United States at less than fair value and were materially injuring, or threatening material injury to, a United States industry. The case before this Court is limited to the investigation of MMF sweaters from Hong Kong.

The Department initiated an antidumping investigation of MMF sweaters from Hong Kong on October 19, 1989. Initiation of Antidumping Duty Investigations: Sweaters Wholly or in Chief Weight of Man-Made Fiber from Hong Kong, the Republic of Korea, and Taiwan, 54 Fed. Reg. 42,972 (Oct. 19, 1989). On April 27, 1990, the Department published its preliminary determination finding that the subject sweaters from Hong Kong were being sold in the United States at less than fair value. Preliminary Determination of Sales at Less Than Fair Value; Sweaters Wholly or in Chief Weight of Man-Made Fiber from Hong Kong, 55 Fed.Reg. 17,775 (Apr. 27, 1990). The preliminary determination was subsequently amended to correct a clerical error. Amendment to Preliminary Determination of Sales at Less Than Fair Value; Sweaters Wholly or in Chief Weight of Man-Made Fiber from Hong Kong, 55 Fed.Reg. 19,289 (May 9, 1990). On July 27, 1990, the Department published its final determination of sales at less than fair value. Final Determination, 55 Fed.Reg. at 30,733. On September 24, 1990, following an affirmative injury determination by the Commission, Sweaters Wholly or in Chief Weight of Man-Made Fibers from Hong Kong, the Republic of Korea, and Taiwan, USITC Pub. 2312, Inv. Nos. 731-TA-448-450 (Final) (Sept.1990), the Department published an antidumping duty order covering man-made fiber sweaters from Hong Kong. Antidumping Duty Order: Sweaters Wholly or in Chief Weight of Man-Made Fiber from Hong Kong, 55 Fed.Reg. 39,035 (Sept. 24, 1990).

In the Final Determination, the Department found that MMF sweaters from Hong Kong, except those of Crystal Knitters, Ltd. ("Crystal") and Laws Fashion Knitters, Ltd. ("Laws"), were being, or were likely to be, sold in the United States at less than fair value during the period of investigation. 55 Fed.Reg. at 30,733. The overall weighted-average dumping margins for two respondents, Crystal and Laws, were considered zero and de minimis respectively, so that sweaters produced in Hong Kong by these respondents were excluded from the antidumping duty order. See 19 C.F.R. §§ 353.21(c), 353.6(a). The final dumping margin determined by the Department for the third respondent, Comitex Knitters, Ltd. ("Comitex"), was 5.86 percent. 55 Fed.Reg. at 30,744. The fourth respondent, Prosperity Clothing Co., Ltd./Estero Enterprises, Ltd. ("Prosperity") was assigned a final dumping margin of 115.15 percent. Id.

In addition to calculating the antidumping margins for the respondents, Commerce must also calculate an "all others" rate for the remaining firms that were not investigated. In this case, for reasons set forth below, Commerce applied Comitex' 5.86 percent antidumping margin to the "all others" rate and excluded Prosperity's 115.15 percent final dumping margin from this calculation. Plaintiff challenges Commerce's decision to include Prosperity's affirmative dumping margin, which was based on best information available, in the calculation of the "all others" rate.

STANDARD OF REVIEW

Pursuant to the Tariff Act of 1930 ("Act"), in reviewing a final determination of the International Trade Administration, this Court must uphold that determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence has been defined as being "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). When applying the substantial evidence standard "`the court may not substitute its judgment for that of the agency when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo....'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom. Armco, Inc. v. United States, 3 Fed.Cir. (T) 123, 760 F.2d 249 (1985) (quoting Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464).

In determining whether to sustain the agency's construction of the antidumping statute or regulations, the Court need not find the agency's interpretation to "be the only reasonable interpretation or the one which the court views as the most reasonable." ICC Indus., Inc. v. United States, 5 Fed.Cir. (T) 78, 85, 812 F.2d 694, 699 (1987) (citing Consumer Products Div., SCM Corp. v. Silver Reed America, Inc., 3 Fed.Cir. (T) 83, 90, 753 F.2d 1033, 1039 (1985). Moreover, judicial review of the agency determination is limited. Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (1990). "It is not within the Court's domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record." Id. (citations omitted).

In addition, where, as in the instant case, the statute does not provide explicit guidance on a particular issue, the agency acts within its discretionary authority to interpret the intention and purposes of the law. Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978). "The question is thus whether, in light of the normal aids to statutory construction, the Department's interpretation is `sufficiently reasonable' to be accepted by a reviewing court." Id. (citing Train v. Natural Resources Defense Council, 421 U.S. 60, 75, 95 S.Ct. 1470, 1480, 43 L.Ed.2d 731 (1975); American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). In American Lamb, the Court stated:

A reviewing court must accord substantial weight to an agency's interpretation of a statute it administers. Though a court may reject an agency interpretation that contravenes clearly discernible legislative intent, its role when that intent is not contravened is to determine whether the agency's interpretation is `sufficiently reasonable.' The agency's interpretation need not be the only reasonable construction or the one the court would adopt had the question initially arisen in a judicial proceeding.

4 Fed.Cir. (T) at 54, 785 F.2d at 1001 (citations omitted).

DISCUSSION

The Methodology Employed by Commerce

The Department's antidumping investigations are based on questionnaires sent to a number of foreign producers requiring that these producers (and related importers) provide information covering their sales during the Department's period of investigation which is normally the period five months before and one month after the first day of the month in which the petition was filed. See 19 C.F.R. § 353.42(b) (1990). The Department's antidumping regulations further provide that the Department "normally will examine not less than 60 percent of the dollar value or volume of the merchandise sold" during the period of investigation. Id.

However, in the instant case, it is undisputed that the Department did not follow its normal practice of sending questionnaires to foreign producers accounting for "not less than 60 percent" of sales during the period of investigation. Instead, the Department sent questionnaires to only four Hong Kong companies that the Department identified as the major quota holders to export MMF sweaters from Hong Kong to the United States during the period of...