Chefline Corp. v. U.S., Slip Op. 02-81.
| Decision Date | 05 August 2002 |
| Docket Number | Court No. 00-05-00212.,Slip Op. 02-81. |
| Citation | 219 F.Supp.2d 1303 |
| Parties | CHEFLINE CORPORATION, et al., Plaintiffs, v. UNITED STATES, Defendant, and The Stainless Steel Cookware Committee, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Hogan & Hartson LLP (Lynn G. Kamarck, Craig A. Lewis), Washington, DC, for Plaintiffs.
Lyn M. Schlitt, General Counsel; Marc A. Bernstein, Acting Assistant General Counsel; Laurent M. de Winter, Attorney, Office of General Counsel, U.S. International Trade Commission, Washington, DC, for Defendant.
King & Spalding (Joseph W. Dorn, Stephen A. Jones, Christine E. Savage), Washington, DC, for Defendant-Intervenor.
Before: POGUE, Judge.
On September 26, 2001, this Court remanded certain aspects of the United States International Trade Commission's ("Commission") final determination in Porcelain-on-Steel Cooking Ware from China Mexico, and Taiwan, and Top-of-the-Stove Stainless Steel Cooking Ware from Korea and Taiwan, Inv. Nos. 701-TA-267 & 268 (Review) and 731-TA-297-299, 304 & 305 (Review), USITC Pub. 3286, (March 2000) ("Review Determination"). See Chefline v. United States, 25 CIT ___, 170 F.Supp.2d 1320 (2001) ("Chefline I").1
The remand order directed the Commission to reconsider its decision to cumulate top-of-the-stove stainless steel cookware from Korea and Taiwan. In the event that the Commission should decide not to cumulate, the Commission was instructed to reconsider whether revocation of the orders on Korean top-of-the-stove cookware would likely lead to continuation or recurrence of material injury to the domestic industry, within a reasonably foreseeable time.
After reopening the record, the Commission determined that there was not enough evidence to support cumulating subject imports from Korea and Taiwan, and affirmed its determination that subject imports from Korea would, upon revocation of the antidumping and countervailing duty orders, likely result in injury to the United States market within a reasonably foreseeable time. Plaintiffs Chefline Corporation, Inc., Daelim Trading Co., Ltd., Dong Won Metal Co., Ltd., Hai Dong Stainless Steel Co., Ltd., Kyung Dong Industrial Do., Ltd., Namyan Kitchenflower Co., Ltd., O'bok Stainless Steel Co., Ltd., and Sam Yeung Industrial Co., Ltd. (collectively "Plaintiffs" or "Chefline") contest the Commission's affirmative determination of antidumping and countervailing duty orders on top-of-the-stove stainless steel cookware from Korea. After review of the issues raised by the Plaintiff, we uphold the Commissions' determination.
The Commission's determination will be upheld unless it is unsupported by substantial evidence in the administrative record or is otherwise not in accordance with the law. See 19 U.S.C. § 1516a(b)(1)(B)(I) (1994).
Substantial evidence is "more than a mere scintilla," Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938), but "something less than the weight of the evidence." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). The Court's function is not to re-weigh the evidence but rather to ascertain whether there exists "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co., 305 U.S. at 229, 59 S.Ct. 206.
Under 19 U.S.C. § 1675a(a)(7), either a finding that imports will have no discernible adverse impact on the domestic industry or a finding that there is no reasonable overlap of competition between imports from different countries is sufficient to preclude cumulation. See also Neenah Foundry Co. v. United States, ___ CIT ___, ___, 155 F.Supp.2d 766, 771 (2001). In our original review of the Commission's sunset determination we found that there was not substantial evidence supporting either a finding of reasonable overlap of competition between Korean and Taiwanese imports or a finding that Taiwanese imports would have a discernible adverse impact.
Upon remand, the Commission sought to supplement the record by sending questionnaires to over forty companies in Taiwan, in order to gather information on the nature of Taiwanese subject imports. Remand Determ. at 8. Although none of the Taiwanese producers provided data in response to the questionnaires, the Commission was able to collect information from telephone conversations with Taiwanese producers and importers of Taiwanese top-of-the-stove stainless steel cooking ware. Id.
Although one Taiwanese manufacturer stated that it produced high-end merchandise, the Commission was unable to ascertain whether the Taiwanese high-end merchandise was equivalent to high-end merchandise sold in the U.S. market. In another telephone conversation, an importer of subject merchandise from Korea and Taiwan indicated that "although Taiwan had the capability of producing higher-end stainless steel cooking ware, Taiwan producers were not as good at producing it." Id. The Commission also found that the average unit value of cooking ware from Taiwan is substantially less than that for cooking ware from Korea, suggesting that recent imports from Taiwan were probably not high-end cooking ware. Based on this new information, the Commission concluded that subject imports from Taiwan were of a lower quality than the Korean product. See Remand Determ. at 6. Therefore, the Commission found that there was no reasonable overlap of competition between subject imports from Korea and Taiwan and declined to cumulate subject imports from the two countries. See Id. at 5 (). On the limited record here, the evidence of Taiwanese production is sufficient for a reasonable person to conclude that the Taiwanese producers do not sell high-end products. Accordingly, we find the Commissions decision not to cumulate imports from Taiwan and Korea to be supported by substantial evidence.
Because the Commission determined there was not enough evidence to support cumulating subject imports from Korea and Taiwan, it was required to reexamine the determination that revocation of the antidumping and countervailing duty orders on Korean subject imports would be likely to lead to a continuation or recurrence of material injury within a reasonably foreseeable time. The Commission found that even without cumulating subject imports, the orders regarding Korean subject imports should not be revoked.
As a preliminary matter, Chefline appeals the Commission's rejection of Chefline's rebuttal comments and asks the Court to take judicial notice of these comments.
In the remand proceeding, the Commission reopened the record "for the limited purpose of (1) seeking basic information regarding subject product from Taiwan and (2) seeking to cure the possible inclusion of non-subject products in official import data." Letter from USITC to Hogan & Hartson, LLP (Dec. 10, 2001), Pl.'s App. 1, at 1. The Commission asked all interested parties to submit two sets of comments. The first set of comments was limited to information on the likelihood of overlap of competition between Taiwanese and Korean imports with the domestic like product, whether using a value-based instead of a quantity-based statistic would be a more accurate measure of subject import volume and "the extent to which non-subject merchandise from Korea and Taiwan is included in United States [HTSUS] 7323.93.00.30 (i.e. the ratio of subject to non-subject merchandise)." Id. at 2. These comments, due by December 28, 2001, could include new factual information.2
The parties were also informed that they could submit a second set of comments "responding to other parties' first sets of comments or to new information released to the parties by the Commission too late to be included in the first set of comments." Id. The Commission made clear that these comments, due at the close of business on January 4, 2001, could not include any new factual information. Id.3
As part of their first set of comments, Defendant-Intervenor Stainless Steel Cookware Committee provided a sworn affidavit by the Executive Vice President of the Cookware Manufacturers Association ("CMA"), Hugh Rushing. See Comments on Remand by the Stainless Steel Cookware Committee at Ex. 1("Rushing Affidavit") (Dec. 20, 2001), Def.-Int.'s Conf.App. at 16 ("Committee's Remand Comments").4 The Rushing Affidavit, based on CMA data, estimated that 97 percent of Korean 7323.93.0030, HTSUS, imports were top-of-the-stove stainless steel cookware. On January 7, several days after the end of the comment period, Chefline submitted rebuttal comments on the Rushing Affidavit to the Commission.
The Commission rejected Chefline's comments for being untimely and containing new information, in violation of its instructions. Chefline argues that nothing in the Commission's statute or regulations addresses this type of situation and that 19 U.S.C. § 1677m(g), contrary to the Commission's suggestion, does not apply to new information submitted by parties to the case; rather, Chefline argues that 19 U.S.C. § 1677m(g) is only applicable for new information obtained by the Commission. Pl.'s Mem. Supp. Mot. J. Agency R. at 18 ("Chefline Br."). Chefline also claims that the "Commission was clearly wrong to reject this data," because "[t]he Rushing Affidavit clearly provided information beyond the parameters of the instructions to the parties regarding written submissions." Id. at 17. Lastly, Chefline contends that the information contained in the rebuttal comments is public information of the type for which judicial notice is appropriate.
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