Kyowa Gas Chemical Industry Co., Ltd. v. US, Court No. 83-8-01226.

• Decision Date: 30 March 1984
• Docket Number: Court No. 83-8-01226.
• Citation: 7 CIT 138,582 F. Supp. 887
• Parties: KYOWA GAS CHEMICAL INDUSTRY COMPANY, LTD., Plaintiff, v. UNITED STATES, et al., Defendants, Rohm and Haas Company, Intervenor.
• Court: U.S. Court of International Trade

582 F. Supp. 887

7 CIT 138

KYOWA GAS CHEMICAL INDUSTRY COMPANY, LTD., Plaintiff, v. UNITED STATES, et al., Defendants, Rohm and Haas Company, Intervenor.

Court No. 83-8-01226.

United States Court of International Trade.

March 30, 1984.

Bayh, Tabbert & Capehart, Washington, D.C. (Thomas V. Vakerics and Kenneth G. Weigel, Washington, D.C., on the briefs and at the argument), for plaintiff.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C. (David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., and Velta A. Melnbrencis, New York City, on the brief and at the argument), for defendants.

Baker & McKenzie, Washington, D.C. (William D. Outman, II, Washington, D.C., on the brief and at the argument), for intervenor.

Memorandum Opinion and Order of Remand

BOE, Judge:

In the above entitled action, plaintiff, Kyowa Gas Chemical Industry Company, Ltd. ("Kyowa"), submitted a Rule 56.1 motion for review of an administrative determination upon an agency record, challenging the Final Results of Administrative Review of Antidumping Finding in Acrylic Sheet from Japan. 48 Fed.Reg. 34490 (July 29, 1983). Specifically, Kyowa seeks review of the Department of Commerce, International Trade Administration ("ITA") determination that Kyowaglas-XA, a product manufactured by the plaintiff, is within the scope of the antidumping finding in Acrylic Sheet from Japan, T.D. 76-240, 41 Fed.Reg. 36497 (August 30, 1976).

The pertinent facts are as follows. In 1976, the Secretary of the Treasury published a dumping finding on Acrylic Sheet from Japan, pursuant to section 201 of the Antidumping Act of 1921, as amended (19 U.S.C. § 160(a)). On January 1, 1980, the Trade Agreements Act of 1979 ("Act"), Pub.L. No. 96-39, 93 Stat. 144, became effective. Section 106(a) of the Act provides that prior findings "shall remain in effect, subject to review under section 751 of the Tariff Act of 1930."¹ On March 28, 1980, the Department of Commerce published a notice of intent to conduct administrative reviews of all outstanding findings, including Acrylic Sheet from Japan. 45 Fed.Reg. 20511.

The ITA published a notice of Final Results of Administrative Review of Antidumping Finding in Acrylic Sheet from Japan. 47 Fed.Reg. 993 (January 8, 1982). The scope of the review included:

shipments of acrylic sheet, which is made by polymerizing methyl methacrylate into a stiff, transparent, high molecular weight polymer with resistance to ultraviolet radiation, and includes sheet, whether or not cast, extruded, drilled, milled or ground on the edges.

The review did not specifically examine Kyowaglas-XA.

Kyowaglas-XA is a newly invented product, which obtained a United States Patent in 1978 and 1980. Until approximately September 1982, Kyowa exported Kyowaglas-XA to the United States without being subject to the 1976 antidumping finding. At that time, Customs at the Port of Baltimore took the position that Kyowaglas-XA was within the scope of the 1976 finding. Because of this action, plaintiff requested the ITA to make a determination with respect to Kyowaglas-XA.

On July 29, 1983, the ITA published a notice of its final results, determining that "KYOWAGLAS-XA is an acrylic sheet and is, therefore, subject to the finding." The Department of Commerce stated:

The Department's primary bases for determining whether a product is outside the scope of an antidumping finding are the descriptions of the product contained in the petition, the initial investigation, and the ITC, Treasury, or Commerce determinations.

When there is vagueness in the description of a product and the Department cannot make a determination concerning the scope of a finding or order based upon the information mentioned above, we use four additional criteria to make the determination on the scope. These criteria are: (1) Physical characteristics of the merchandise; (2) the uses for which the merchandise is imported; (3) the expectation of the ultimate purchasers; and (4) the channels of trade in which the merchandise moves.

In this instance the Department did not need to resort to the four additional criteria to make a determination. We reviewed the petition, the initial investigation, and the ITC's determination, and we find that acrylic sheet, that is clear and/or translucent, regardless of optical clarity, is included within the scope of the finding.

48 Fed.Reg. 34490 (1983). The plaintiff commenced the instant action by the filing of a summons and complaint on August 26, 1983. By order of the court dated December 22, 1983, the Rohm and Haas Company became an intervenor in this action.

It is undisputed that in a § 1675(a) review proceeding the ITA may clarify the scope of a prior dumping finding. Clarification of a dumping finding, however, must be distinguished from an attempt to modify or change the original finding. Royal Business Machines v. United States, 1 CIT 80, 86-87, 507 F.Supp. 1007, 1013-14 (1980), aff'd, 69 CCPA ___, 669 F.2d 692 (1982); Diversified Products Corp. v. United States, 572 F.Supp. 883, 6 CIT ___ (1983).

In determining the scope of an antidumping finding, the ITA has recognized and employed certain criteria in ascertaining whether an imported product, not previously included, is of the class or kind of merchandise contemplated by the finding. Among the factors considered by the ITA are the general physical characteristics of the product; the expectations of the ultimate purchaser; the channels of trade in which the product is sold; the manner in which the product is advertised and displayed; and the ultimate use of the product.² See Parts...