Bomont Industries v. US, Court No. 86-05-00557.
| Citation | 733 F. Supp. 1507,14 CIT 208 |
| Decision Date | 28 March 1990 |
| Docket Number | Court No. 86-05-00557. |
| Parties | BOMONT INDUSTRIES, Plaintiff, v. UNITED STATES, Defendant, and Asahi Chemical Industry Co., Ltd., Intervenor-Defendant. |
| Court | U.S. Court of International Trade |
Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart and Geert De Prest, 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, Jeanne E. Davidson, and Office of the Chief Counsel for Import Administration, U.S. Dept. of Commerce, Tina M. Stikas, Washington, D.C., of counsel, for defendant.
Barnes, Richardson & Colburn, James S. O'Kelly, Matthew T. McGrath and Jack M. Simmons, III, New York City, for intervenor-defendant.
In this action, the court granted in part and denied in part plaintiff's motion for judgment on the agency record per 13 CIT ___, 718 F.Supp. 958, rehearing denied, 13 CIT ___, 720 F.Supp. 186 (1989), familiarity with which is presumed. Pursuant thereto, the matter was ordered remanded to the International Trade Administration, U.S. Department of Commerce ("ITA") for further proceedings as to alleged transshipments of the merchandise under consideration. That is, the petition below contained allegations concerning nylon impression fabric produced in Japan and transshipped through West Germany to the United States. After review of the administrative record in conjunction with plaintiff's motion, the court concluded that the ITA had failed to verify on its own, as required by 19 U.S.C. § 1677e(a) (1984), the information developed on those allegations and upon which it relied. Otherwise, the agency's final negative dumping determination reported at 51 Fed.Reg. 15,816 (April 28, 1986) was affirmed.
The ITA has filed with the court the results of the proceedings on remand which state (at page 3):
In accordance with the Court's instructions, we selected for verification a Japanese trading company that purchased NIF from Asahi and resold it to its subsidiary in the FRG during the period of investigation. In the FRG, we selected for verification the Japanese trading company's subsidiary, as well as two of the subsidiary's West German customers. We conducted on site verifications in Japan and the FRG during the week of October 2-6, 1989. We requested and were shown sales invoices, shipping documents, export files and contract ledgers for the period under investigation, which confirmed that all shipments of NIF were made either within the FRG or to countries other than the United States. As a result, Asahi's statement in its questionnaire response (and the supporting affidavits) that its merchandise subject to the investigation was not transshipped through the FRG to the United States is verified as being accurate.
Plaintiff's response has been to interpose a motion for further remand proceedings based upon its written Response in Opposition to the Remand Results Reached by the International Trade Administration.1 The response repeats a comment made to the agency during remand, namely, that the "investigation, because no additional verification of Asahi was conducted, does not exclude the possibility that additional sales were made via a second trading company." Id. at 9; remand record document 32 at 4-5. In effect, the plaintiff agrees that the ITA properly verified the transactions referred to originally in the affidavits provided by Asahi. And it "does not dispute that 19 U.S.C. § 1677e does not necessarily require ITA to verify every reported sale, and that verification of a sample of sales may be sufficient." Plaintiff's Response, p. 10. Rather, it clings to the concept that transactions occurred other than those now verified and, on remand, they should have been investigated by the ITA.
Clearly, the agency was at liberty on remand to conduct further investigation, but, on the record developed, little more than surmise existed (or exists) in support thereof. Cf. Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT ___, ___, 704 F.Supp. 1114, 1117 (1989) (). That is, the court has reviewed the record, which shows that the ITA has now verified in an acceptable manner the nature of sales of Asahi merchandise to West Germany. It also shows substantial evidence in support of the ITA's conclusion that that merchandise was not transshipped to the United States. It does not show evidence tending to support plaintiff's belief that other shipments of Asahi merchandise to Germany were intended from the outset for shipment to this country.
Of course, verification is like an audit, the purpose of which is to test information provided by a party for accuracy and completeness. Normally, an audit entails selective examination rather than testing of an entire universe. Hence, evasion is a common possibility, but only when audits uncover facts indicating the actuality thereof are auditors compelled to search further. The ITA's verification on remand herein did not point to evasion.
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