Melex USA, Inc. v. US

• Citation: 19 CIT 1130,899 F. Supp. 632
• Decision Date: 25 August 1995
• Docket Number: Slip Op. 95-152. Court No. 92-04-00298.
• Parties: MELEX USA, INC. and Pezetel, Ltd., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

899 F. Supp. 632

19 CIT 1130

MELEX USA, INC. and Pezetel, Ltd., Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 95-152. Court No. 92-04-00298.

United States Court of International Trade.

August 25, 1995.

McDermott, Will & Emery, Washington, DC (Carl W. Schwarz, David J. Levine) for plaintiffs.

Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (Reginald T. Blades, Jr.); of counsel: Stephen J. Claeys, Attorney-Advisor, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.

MEMORANDUM OPINION

MUSGRAVE, Judge.

Plaintiffs, Melex USA, Inc. and Pezetel, Ltd. (hereinafter referred to as "Melex," "Pezetel" or Plaintiffs), move for judgment on the agency record, challenging the final results of the administrative review of antidumping announced by the International Trade Administration, U.S. Department of Commerce ("ITA" the "government" or "Commerce"), Electric Golf Cars From Poland; Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 10334 (March 25, 1992), as amended, Electric Golf Cars From Poland; Amendment of Final Results of Antidumping Duty Administrative Review, 57 Fed.Reg. 18129 (April 29, 1992). The review covered unliquidated entries during the period July 1, 1976 through June 10, 1980, and resulted in a 2.91% antidumping duty.

Specifically, plaintiffs contest Commerce's (1) assessment of antidumping duties upon Melex's pre-1980 entries after the ITC had revoked the finding of injury due to changed circumstances in 1980; (2) assessment contrary to statements made by Commerce officials outside of the Administrative review process; (3) use of the Spanish rate of inflation rather than the Polish rate of inflation for the adjustment of Spanish costs used in constructed value; (4) recalculation of Melex's credit expenses; and (5) use of petitioners' information to determine the costs of producing Melex's 4-wheel golf cars.

Background

The original antidumping petition in this matter was filed on April 29, 1974, by Outboard Marine Corporation of Lincoln, Nebraska, then a domestic manufacturer of golf cars. Wytwornia Sprzetu Komunikacyjnego ("WSK"), a Polish state enterprise, mass-produced the golf cars (approximately 6,000 units per year) at a factory in Mielec, Poland. Pezetel (formerly known as "Pezetel, the Foreign Trade Enterprise of the Polish Aviation Industry") exported the product to Melex, a wholly-owned subsidiary of Pezetel, and to other, unrelated, firms.

On September 16, 1975, the Commission made a determination of injury which was published on October 21, 1975. 40 Fed.Reg. 49153. On November 18, 1975, the Department of Treasury published a finding of dumping of electric golf cars from Poland. Antidumping—Electric Golf Cars from Poland, 40 Fed.Reg. 53383.

The ITC's determination of injury remained in effect until June 11, 1980, when the ITC conducted a "changed circumstances review" and determined that the domestic industry would not be threatened with material injury if the antidumping finding on Polish electric golf cars was revoked. ITC Changed Circumstances Determination 45 Fed.Reg. 39581 (June 11, 1980).

On August 8, 1980, the Department of Commerce issued Electric Golf Cars From Poland: Revocation of Dumping Findings; Antidumping Duties. Fed.Reg. 52870, which stated: "Unapprised entries of electric golf cars from Poland, made prior to June 11, 1980, remain unaffected by this notice, and continue to be subject to appraisement under the antidumping duty finding." Id. at 52871.

On October 30, 1985, Melex requested that Commerce initiate an administrative review of Melex's entries between July 1, 1976 and June 10, 1980. Melex had requested this review in a timely fashion after the implementation of the Trade and Tariff Act of 1984, which provided that annual reviews would be conducted only upon the request of an interested party. Pub.L. No. 98-573. The regulation implementing the review-upon-request rule provided that outstanding entries would be liquidated as entered with antidumping duties assessed at the rate of the estimated cash deposit rate, or at the bond rate. Plaintiffs' Brief at 14.

Based on the new regulation, if it did not request a review, Melex faced an assessment at bonded rates ranging from 20 to 50 percent, for the unliquidated entries which had entered between 1976-1978. For nearly six years, no action was taken on Melex's request for a review of its unliquidated entries. Plaintiffs' Brief at 15.

On April 18, 1991, Commerce finally initiated an administrative review of the antidumping duty order on electric golf cars from Poland. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 56 Fed.Reg. 15856. The period of review was July 1, 1976 through June 10, 1980. Id. On December 9, 1991, Commerce preliminary determined that Melex sold golf cars at less-than-fair-value during the period of review. Golf Cars from Poland; Preliminary Results of Antidumping Duty Administrative Review, 56 Fed.Reg. 64239. It is the final results of this Administrative Review, as amended, which are now being challenged. The Court's jurisdiction over this matter is derived from 28 U.S.C. § 1581(c) (1988).

Standard of Review

In reviewing injury, antidumping, and countervailing duty investigations and determinations, this Court must hold unlawful any determination unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1982). Substantial evidence "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. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938). Substantial evidence supporting an agency determination must be based on the whole record. See Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464-65. The "whole record" means that the Court must consider both sides of the record. It is not sufficient to examine merely the evidence that sustains the agency's conclusion. Id. In other words, it is not enough that the evidence supporting the agency decision is "substantial" when considered by itself. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Id. at 478, 488, 71 S.Ct. at 459, 464.

The interpretation of the laws administered by Commerce should be sustained if that interpretation is reasonable. United States v. Zenith Radio Corp., 64 CCPA 130, C.A.D. 1195, 562 F.2d 1209 (1977), aff'd, 437 U.S. 443, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978); American Lamb Company v. United States, 785 F.2d 994 (Fed.Cir.1986). Furthermore, this Court should not reject the interpretation of a statute or regulation administered by an agency unless it has compelling reasons to do so. Wilson v. Turnage, 791 F.2d 151, 155-56 (Fed.Cir.1986), cert. denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986).

With regard to judicial review of an agency's construction of a statute it administers, the Supreme Court has held that absent direct Congressional instruction as to the precise question at issue, the question for the Court to decide is whether the agency's interpretation is based upon a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Where the agency's interpretation of a statute represents a reasonable accommodation of manifestly competing interests, it is entitled to deference. Id. at 865, 104 S.Ct. at 2792-93. Since Commerce administers the trade laws and its implementing regulations, it is entitled to deference in its reasonable interpretations of those laws and regulations. PPG Industries, Inc. v. United States, 13 CIT 297, 299, 712 F.Supp. 195, 198 (1989), aff'd, 978 F.2d 1232 (Fed.Cir.1992). This should not suggest the vacation of meaningful judicial review, but rather a recognition that administrative agencies must be permitted to effectively employ their administrative expertise in carrying out their legislative mandates. Id.

Discussion

A. Commerce's assessment of antidumping duties upon Melex's 1978-1980 entries after the ITC had revoked the finding of injury due to changed circumstances in 1980.

Plaintiffs contend that the assessment of antidumping duties for the 1976-1980 entries is contrary to the GATT and U.S. law which require a current injury finding for antidumping duties to be assessed. Plaintiffs' Brief at 18. Although the ITC made a determination of injury in 1975, plaintiffs argue that because the ITC determined in 1980 that changed circumstances allowed the revocation of the finding of injury, the assessment after that finding is contrary to the GATT and U.S. law. Defendant argues that "Melex's interpretation would improperly cause the ITC's finding of no injury to become retroactive." Defendant's Brief at 14. In their reply brief, "plaintiffs stipulate to the prospective nature of revocations." Plaintiff's Reply Brief at 7.

This Court finds plaintiffs' argument to be unpersuasive. Plaintiffs seek an interpretation of prospectivity which is inconsistent with the meaning of that term as it was interpreted by the ITC Commissioners in the instant case. Plaintiffs' argument is founded on the assertion that the revocation of the finding of injury by the Commission in 1980 and the subsequent revocation of the antidumping order by Commerce in 1980 bars the levy against those entries which occurred before the effective date of revocation, June 11, 1980.

According to the statement of reasons of Vice Chairman Bill Alberger and Commissioner Michael J. Calhoun in the Changed Circumstances Determination; Electric Golf Cars From Poland of June 11, 1980, "this review proceeding is the...