Bomont Industries v. US

• Decision Date: 30 June 1989
• Docket Number: No. 86-05-00557.,86-05-00557.
• Citation: 718 F. Supp. 958
• Parties: BOMONT INDUSTRIES, Plaintiff, v. UNITED STATES, Defendant, and Asahi Chemical Industry Co., Ltd., Intervenor-Defendant.
• Court: U.S. Court of International Trade

718 F. Supp. 958

BOMONT INDUSTRIES, Plaintiff, v. UNITED STATES, Defendant, and Asahi Chemical Industry Co., Ltd., Intervenor-Defendant.

No. 86-05-00557.

United States Court of International Trade.

June 30, 1989.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Charles A. St. Charles, Mary Tuck Staley and John M. Breen, Washington, D.C., for plaintiff.

Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Sheila N. Ziff (Douglas A. Riggs, Gen. Counsel, M. Jean Anderson, Chief Counsel for Intern. Trade, and William Perry, Office of the Deputy Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., of counsel), for defendant.

Barnes, Richardson & Colburn, James S. O'Kelly, Leonard Lehman and Matthew T. McGrath, New York City, for intervenor-defendant.

OPINION AND ORDER

AQUILINO, Judge:

The plaintiff complains at length about the performance of the International Trade Administration, U.S. Department of Commerce ("ITA") in resolving a proceeding sub nom. Antidumping; Nylon Impression Fabric From Japan; Final Determination of Sales at Not Less Than Fair Value, 51 Fed.Reg. 15,816 (April 28, 1986), wherein the agency determined that imports of the indicated merchandise by or for the account of Shirasaki Tape Co., Ltd. and Asahi Chemical Industry Company, Ltd. were not being, or likely to be, sold in the United States at less than fair value.

In 1977, the Treasury Department had determined that, with the exception of the merchandise supplied by Shirasaki and by Asahi, impression fabric of man-made fiber from Japan was being sold at less than fair value within the meaning of the Antidumping Act of 1921, as amended.¹ The weighted-average margin on Asahi's sales was considered de minimis, whereas Shirasaki was excluded from the finding of dumping² because the weighted-average margin on its sales was considered to be "minimal" in relation to their total volume, and "formal assurances" of no future sales at less than fair value were received. See 42 Fed. Reg. at 65,345.

Bomont Industries and a domestic competitor filed a petition with the ITA pursuant to the Trade Agreements Act of 1979, as amended by the Trade and Tariff Act of 1984, alleging dumping by Asahi and Shirasaki. The agency concluded that the petition contained sufficient grounds upon which to initiate an investigation of merchandise by or for the accounts of those two enterprises. After the International Trade Commission determined that there was reasonable indication that imports of nylon impression fabric from Japan were materially injuring the U.S. industry³, the ITA investigated the period January 1 through June 30, 1985 and reached the final negative determination cited above.

Plaintiff's complaint pleads some 18 causes of action. Its motion for judgment on the agency record pursuant to CIT Rule 56.1 is spelled out in a 142-page brief and 61-page reply brief encompassing five fundamental claims, to wit: (1) the ITA's decision not to expand the period of investigation was unsupported by substantial evidence and contrary to law; (2) the agency's failure to investigate sales of Japanese impression fabric transshipped through West Germany was an abuse of discretion and unsupported by substantial evidence of record; (3) the ITA failed to verify transfer prices between related parties and based its final determination of foreign-market value on related-party or fictitious prices contrary to the statute, regulations and agency precedent; (4) the ITA's determination was based on unverified and questionable information submitted by Shirasaki and thus was unsupported by substantial evidence; and (5) the agency abused its discretion by allowing Asahi and Shirasaki to submit public versions of their questionnaire responses that did not comply with the law.

Jurisdiction is based on subparagraphs (A)(i)(I) and (B)(ii) of 19 U.S.C. § 1516a(a)(2) (1984) and upon 28 U.S.C. § 1581(c).

I

In response to plaintiff's primary point, the defendant states that

Commerce has consistently taken the position that its normal practice is to conduct a six-month investigation and that it will not expand the investigation period without good cause.⁴

The petitioners recognized this fact, as revealed, for example, in experienced counsel's letter requesting a broader investigative period although admitting that an investigative period of January 1 through June 30, 1985 would conform with normal agency practice.⁵ Nevertheless, the plaintiff in its present papers, as well as in prior proceedings in open court, has sought to show unfair treatment, "so fundamentally prejudicial as to constitute a deprivation of due process"⁶, by the ITA.

Of course, in an action such as this, challenging a final negative determination, the standard of review prescribed in the 1979 act, as amended, is whether the agency decision is unsupported by substantial evidence on the record, or otherwise not in accordance with law. The standard set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), for holding agency action unlawful as arbitrary, capricious and an abuse of discretion does not apply here. Compare 19 U.S.C. § 1516a(b)(1)(B) with id., § 1516a(b)(1)(A). Nevertheless, the plaintiff correctly argues that parties are entitled to some degree of due process from agencies, consonant with the rights affected and type of proceeding involved, citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), and Goldberg v. Kelly, 397 U.S. 254, 267-71, 90 S.Ct. 1011, 1020-22, 25 L.Ed.2d 287 (1970).

The petition below was filed on June 10, 1985, which led to the ITA's conducting an investigation for the period January 1 through June 30th of that year in accordance with 19 C.F.R. § 353.38(a), which provides, in part:

... Ordinarily the Secretary will require a foreign manufacturer, producer, or exporter subject to the investigation to submit pricing information covering a period of at least 150 days prior to, and 30 days after, the first day of the month during which the petition was received in acceptable form.

This regulation also states that the Secretary

may, however, require the submission of pricing information for such other period as he deems necessary and he may also require the submission of pricing information on a current basis during the course of an investigation.

At the outset of the investigation, in commenting on the agency's draft questionnaire, the petitioners requested that the ITA "obtain information for a longer period of time—specifically 12 months, July 1, 1984 through June 30, 1985." R.Doc 10 at 2. In support of this position, they referred to

their belief that the Japanese producers and exporters have taken temporary steps to minimize the dumping taking place. As recognized ... in the injury investigation before the International Trade Commission, imports of the product under the investigation have decreased in the first quarter of 1985.... This recent decline has occurred even though imports from 1981 through 1984 increased steadily. The decline in imports in the first quarter of 1985 supports petitioners' belief that the Japanese producers were aware of the impending filing of an antidumping petition, and so changed some of their practices. Thus, the agency should investigate an entire year to ensure that the information provided is truly representative of Japanese sales of nylon impression fabric. R.Doc 17 at 2.

Thereafter, during the course of the investigation, the petitioners called upon the ITA to "require current price information for the period August 24, 1985 through February 24, 1986 (or September 1, 1985 through February 28, 1986, whichever is easier administratively)." R.Docs 137, 139. In other words, a period past the time actually covered in accordance with agency practice and the above regulation should be investigated. The ITA disagreed.

It is this more recent (rather than the earlier) proposed period of time which is now the focus of plaintiff's complaint. Its reply brief underscores (at page 5) its contention that

all of the evidence in the record supports the conclusion that Japanese nylon impression fabric was sold at LTFV by the end of 1985. Not even a scintilla of evidence in the record has been identified either by the ITA or Asahi to support the ITA's refusal to investigate beyond June 1985.

In response to this contention, the defendant relies initially on the language of 19 U.S.C. § 1673(1), pursuant to which an antidumping duty can be imposed if "foreign merchandise is being, or is likely to be, sold in the United States at less than fair value." The significance of the disjunctive, in the view of the defendant, is stated to be as follows:

... The statute speaks in the alternative, i.e., Commerce may determine that sales at LTFV have occurred, or it may determine that such sales are likely to occur. There is no requirement that it do both. Under prevailing practice in LTFV investigations, Commerce examines the likelihood of sales at LTFV only where no sales have been made or reported during the period of investigation.⁷

Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979). Here, the context is foreign merchandise sold in the United States at less than fair value. The above auxiliary verbs connected by "or" simply set the tenses, not the substance, of the statute. And even if the act were drawn to differentiate in a substantive way one time from the other⁸, the antidumping law is remedial, not punitive⁹, and remedial statutes are to be construed liberally. See, e.g., 3 Sutherland Stat. Const. § 60.01 (4th rev. ed. 1986) and cases cited therein. In short, the foregoing view of the defendant is too...