National Ass'n of Mirror Mfrs. v. US, Court No. 87-04-00592.

• Decision Date: 25 August 1988
• Docket Number: Court No. 87-04-00592.
• Citation: 12 CIT 771,696 F. Supp. 642
• Parties: NATIONAL ASSOCIATION OF MIRROR MANUFACTURERS, Plaintiff, v. UNITED STATES, Defendant. and Solaglass Coventry, Ltd., Sun Mirror, Hi Mirror, Mie Glass, Mitsubishi International Corporation, Mitsui and Co., U.S.A., Inc., Orient Glass Co., Sentinel Enterprises, Inc., and Glaverbel S.A., Defendants-Intervenors.
• Court: U.S. Court of International Trade

696 F. Supp. 642

12 CIT 771

NATIONAL ASSOCIATION OF MIRROR MANUFACTURERS, Plaintiff, v. UNITED STATES, Defendant and Solaglass Coventry, Ltd., Sun Mirror, Hi Mirror, Mie Glass, Mitsubishi International Corporation, Mitsui and Co., U.S.A., Inc., Orient Glass Co., Sentinel Enterprises, Inc., and Glaverbel S.A., Defendants-Intervenors.

Court No. 87-04-00592.

United States Court of International Trade.

August 25, 1988.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., and Geert De Prest, Washington, D.C., for plaintiff.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Jeanne E. Davidson, U.S. Intern. Trade Com'n, Paul R. Bardos, Washington, D.C., for defendant.

Brownstein, Zeidman and Schomer, Irwin P. Altschuler, Steven P. Kersner, David R. Amerine, and Donald S. Stein, Washington, D.C., for defendant-intervenors Solaglass Coventry, Ltd., Sun Mirror, Hi Mirror, Mie Glass, Mitsubishi Intern. Corp., Mitsui and Co., U.S.A., Inc., Orient Glass Co., and Sentinel Enterprises, Inc.

Ulmer, Berne, Laronge, Glickman and Curtis, Morton L. Stone, Ronald H. Isroff, and Peter A. Rome, Cleveland, Ohio, for defendant-intervenor Glaverbel S.A.

DiCARLO, Judge:

The National Association of Mirror Manufacturers (NAMM) moves under Rule 56.1 of the Rules of this Court for judgment on the agency record to contest the final determinations of the United States International Trade Commission (Commission) that an industry in the United States is not materially injured or threatened with material injury by reason of less than fair value imports in Certain Unfinished Mirrors from the Federal Republic of Germany, Italy, Japan, Portugal, and the United Kingdom, Inv. Nos. 731-TA-321 through 325 (Final), USITC Pub. 1938 (Jan. 1987), and Certain Unfinished Mirrors from Belgium, Inv. No. 731-TA-320 (Final), USITC Pub.1957 (Mar. 1987). This Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(A)(i) and (B)(ii) (Supp. IV 1986) and 28 U.S.C. § 1581(c) (1982). The Court finds the Commission's determinations to be based on substantial evidence in the administrative record as a whole and according to law. The Court also finds that the Commission's determinations did not rely upon the additional views of two Commissioners on the issue of causation which the Commission did not reach after finding no material injury or threat of material injury to the domestic industry.

BACKGROUND

NAMM filed petitions with Commerce and the Commission alleging that a United States industry was materially injured or threatened with material injury by reason of less than fair value imports of unfinished mirrors in stock sheet and lehr end sizes from Belgium, the Federal Republic of Germany, Italy, Japan, Portugal, and the United Kingdom. The Commission defined the product as unfinished mirrors, 15 square feet or more in reflecting area, provided for in item 544.54 of the Tariff Schedules of the United States, which have not been subjected to any finishing operations such as beveling, etching, edging, or framing. Mirrors subject to investigation are produced in a limited number of standard sizes and are frequently used in large projects such as hotel lobbies. USITC Pub. 1938 at 5.

Commerce found that unfinished mirrors imported from the Federal Republic of Germany, Italy, Japan, Portugal, and the United Kingdom were being sold at less than fair value. 51 Fed.Reg. 43,403-11 (Dec. 2, 1986). The Commission determined by a 4-1 vote that a United States industry was not materially injured or threatened with material injury, and that the establishment of a domestic industry was not materially retarded, by reason of unfinished glass mirrors imported from these countries. Certain Unfinished Mirrors From the Federal Republic of Germany, Italy, Japan, Portugal, and the United Kingdom, 52 Fed.Reg. 2459 (Jan. 22, 1987); USITC Pub. 1938 at 1.

Commerce later found that unfinished mirrors imported from Belgium were being sold in the United States at less than fair value. 52 Fed.Reg. 3156 (Feb. 2, 1987). The Commission determined by a 5-0 vote that a domestic industry was not materially injured or threatened with material injury, and that the establishment of a domestic industry was not materially retarded, by reason of the Belgian dumping. Certain Unfinished Mirrors From Belgium, 52 Fed.Reg. 8656 (Mar. 19, 1987); USITC Pub. 1957 at 1.

The Commission based its 4-1 and 5-0 determinations on a preponderance of positive indicators of the domestic industry's performance. The Commission's findings on the domestic industry's condition is virtually identical in both determinations because they are based on an identical record. The Commission's analysis on the threat of material injury is, however, different in each determination.

DISCUSSION

In reviewing final negative determinations in antidumping duty investigations, the Court will hold unlawful those determinations of the Commission found "to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1982). Judicial review of a Commission determination for substantial evidence is a limited standard of review. American Permac, Inc. v. United States, 831 F.2d 269, 273 (Fed.Cir.1987), cert. dismissed, ___ U.S. ___, 108 S.Ct. 1067, 99 L.Ed.2d 229 (1988); Matsushita Elec. Indus. Co. v. United States, 3 Fed.Cir. (T) 44, 45, 750 F.2d 927, 936 (1984). Under the substantial evidence standard for review, the Court will affirm the Commission's findings if they are supported in the record by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Federal Trade Comm'n v. Indiana Fed'n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2015-16, 90 L.Ed.2d 445 (1986); Surface Technology, Inc. v. United States Int'l Trade Comm'n, 801 F.2d 1336, 1340 (F.E. Cir.1986); Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). Substantial evidence is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the Commission's findings from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966); Corning Glass Works v. United States Int'l Trade Comm'n, 4 Fed.Cir. (T) 118, 123, 799 F.2d 1559, 1566 (1986); Atlantic Sugar, 2 Fed. Cir. (T) at 136, 744 F.2d at 1562.

To prevail under the substantial evidence standard, a plaintiff must show either that the Commission has made errors of law or that the Commission's factual findings are not supported by substantial evidence. It is within the Commission's discretion to make reasonable interpretations of the evidence and to determine the overall significance of any particular factor or piece of evidence. Maine Potato Council v. United States, 9 CIT 460, 463, 617 F.Supp. 1088, 1091 (1985); S.Rep. 249, 96th Cong., 1st Sess. 74-75, reprinted in 1979 U.S.Code Cong. & Admin.News 381, 460. It is not this Court's function to decide that, were it the Commission, it would have made another decision on the basis of the evidence. Matsushita Elec. Indus. Co., 3 Fed.Cir. (T) at 54, 750 F.2d at 936. However, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Alberta Pork Producers' Marketing Bd. v. United States, 11 CIT ___, 669 F.Supp. 445, 463 (1987).

A. The Material Injury Determinations

NAMM contends both determinations that a domestic industry was not materially injured are invalid because they are not supported by substantial evidence on the record as a whole.

The Commission is directed to make final determinations of whether an industry in the United States is materially injured or threatened with material injury. 19 U.S.C. § 1673d(b)(1)(A) (1982). Congress defined "material injury" as "harm which is not inconsequential, immaterial, or unimportant." 19 U.S.C. § 1677(7)(A) (1982). See also S.Rep. No. 1298, 93d Cong., 2d Sess. 180 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7186, 7317 ("Injury must be a harm which is more than frivolous, inconsequential, insignificant, or immaterial").

The antidumping law is not punitive in nature, but is remedial and designed to protect industries in the United States from sales of imported merchandise at less than fair value which either caused or threatened to cause material injury. Badger-Powhatan v. United States, 9 CIT 213, 216-17, 608 F.Supp. 653, 656 (1985). As part of its injury determination the Commission considers the impact of imports on domestic producers of like products. 19 U.S.C. § 1677(7)(B)(iii) (1982); 19 C.F.R. § 207.26(a)(3) (1988). In examining the impact of less than fair value imports on a domestic industry, the Commission

shall evaluate all relevant economic factors which have a bearing on the state of the industry, including, but not limited to—

(I) actual and potential decline in output, sales, market share, profits, productivity, return on investments, and utilization of capacity,

(II) factors affecting domestic prices, and

(III) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment.

19 U.S.C. § 1677(7)(C)(iii) (1982); 19 C.F.R. § 207.26(b)(3) (1988). The Commission's determinations must be based upon an independent evaluation of the factors with respect to the unique economic situation of each product and industry under investigation. Alberta Pork Producers' Marketing Bd., 11 CIT at ___, 669 F.Supp. at 461. Neither the presence nor the absence of any factor listed in the statute is decisive with respect to whether an industry is materially injured, and the significance to be assigned to a...