Olympic Adhesives, Inc. v. US
| Decision Date | 17 February 1989 |
| Docket Number | Court No. 83-10-01441. |
| Citation | 708 F. Supp. 344 |
| Parties | OLYMPIC ADHESIVES, INC., Plaintiff, v. The UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sharretts, Paley, Carter & Blauvelt, P.C., Gail T. Cumins, New York City, for plaintiff.
John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Sheila N. Ziff, Washington, D.C., for defendant.
This lawsuit was commenced in accordance with Section 516A of the Tariff Act, as amended, 19 U.S.C. § 1516a, in order to seek review of a final determination of the U.S. Department of Commerce, International Trade Administration (ITA) in a 19 U.S.C. § 1675(a) administrative review of Treasury Decision 78-3, an outstanding Finding of Dumping against Animal Glue and Inedible Gelatin from Sweden. 48 Fed.Reg. 40769-70.
The administrative review which is the subject of this action covered entries of Animal Glue and Inedible Gelatin from Sweden made during the period from June 1, 1978 through November 30, 1980. Through their review, ITA determined that antidumping duties of 92.72 percent should be assessed on animal glue exported from Sweden during that period by Extraco AB.
The court has jurisdiction under 28 U.S.C. § 1581(c) (1982).
In January of 1977 the Department of Treasury initiated an antidumping duty proceeding in response to information submitted by domestic U.S. glue manufacturers indicating that animal glue and inedible gelatin from Sweden was being sold in the United States at less than fair value. 42 Fed.Reg. 4921.
Treasury's fair value investigation, which covered the period from August 1, 1976 to January 31, 1977, disclosed that only one Swedish producer of animal glue, Extraco, exported its products to the U.S., and that all of Extraco's sales in the U.S. were to plaintiff Olympic.
In making its determination Treasury compared the prices of grades 12, 16, and 20 glue sold by Extraco to Olympic, with the prices at which Extraco sold the same grades of glue to an unrelated purchaser in its home market. Based upon these comparisons, Treasury determined that the weighted-average dumping margin on exports of animal glue from Sweden to the U.S. during the relevant period was 92.72 percent. 42 Fed.Reg. 39288-89 (August 3, 1977).
The International Trade Commission (ITC) subsequently notified Treasury that imports of Swedish animal glue were injuring the domestic industry. An Antidumping Duty Finding, T.D. 78-3, was published in the Federal Register on December 22, 1977. 42 Fed.Reg. 64116.
Treasury's first administrative review of the dumping finding on animal glue from Sweden covered the period from August 3, 1977 through May 31, 1978. In response to the Customs Service's antidumping questionnaire Extraco reported sales to the United States of grades 14, 18, and 22 glue (as opposed to the sales of grades 12, 16 and 20 glue which were made during the fair value investigation), sales to third countries of 12, 16, and 20 glue, and home market sales of all six of these grades of glue (R. 379, 419, 423-29.) Through this review Treasury determined that the grades of glue imported into the U.S. from Sweden during the period in question were not being sold at less than fair value.
On May 2, 1979, Treasury commenced a second administrative review of the dumping finding on animal glue from Sweden for the period from June, 1978 through December, 1978. Before the completion of this review, however, responsibility for administering the antidumping law was transferred to the Department of Commerce, International Trade Administration (ITA). The ITA's first administrative review, which is the subject of this action, covers the period from June 1, 1978 through November 30, 1980. During this period Olympic purchased animal glues from Extraco of grades 14, 18, and 22. (R. 20-40.) Based on Extraco's questionnaire responses ITA compared Extraco's sales to Olympic with Extraco's home market sales of those same grades of glue and preliminarily determined that the dumping margin on the sales to Olympic during the period from June 1, 1978 through December 31, 1978 was 8.95 percent, and on sales during the period from January 1, 1979 through November 30, 1980 was 1.93 percent. 46 Fed. Reg. 41540-41 (August 17, 1981).
In October of 1981 counsel for the domestic interested parties submitted to the ITA documents which alleged that Extraco's home market sales of grades 14, 18, and 22 glue were not made in the ordinary course of trade, and that the change in the grades of glue purchased by Olympic from Extraco from 12, 16, and 20 to 14, 18, and 22 did not represent bona fide sales, but were undertaken for the purposes of avoiding antidumping duties. (R. 182-90, 200-19.)
If Extraco's sales in Sweden of glues of grades 14, 18, and 22 were made for the purpose of creating a fictitious home market, and the change in the grades of glue purchased by Olympic were undertaken for the purpose of avoiding antidumping duties then those sales would not have been made in the ordinary course of trade, and thus foreign market value could not properly be determined as required by 19 U.S.C. § 1677b. See 19 C.F.R. § 353.3(a)(1). Consequently, the ITA determined that it was necessary to explore the allegations of fictitious sales, and for this purpose sought additional information from Olympic and Extraco.
On September 9, 1983, ITA issued its final results of administrative review based upon best information available, with antidumping duties to be assessed at the rate of 92.72 percent, ad valorem — the weighted average margin found by Treasury during its fair value investigation. 48 Fed. Reg. 40769-70.
This case presents two basic questions for review. First, whether ITA's decision to base its determination on best information available is supported by substantial evidence in the record and is otherwise in accordance with law? Second, whether ITA's decision to base the margin of dumping on the rate determined in the fair value investigation as the best information available is supported by substantial evidence in the record and is otherwise in accordance with law?
In reviewing challenges to administrative reviews this Court must sustain the ITA's determination unless it is found to be "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516(b)(1)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., ___ CIT ___, 679 F.Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a "mere scintilla", but sufficient to reasonably support a conclusion. Ceramica Regiomontana, S.A. v. U.S., ___ CIT ___, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed.Cir.1987); See Also Smith-Corona Group v. U.S., 713 F.2d 1568, 1571 (Fed.Cir.1983).
Because a reviewing court must accord due weight to an agency's interpretation of a statute it administers, this Court will defer to the agency's interpretation, provided it is "sufficiently reasonable". See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed.Cir.1986). Furthermore, so long as the agency's methodology and procedures are reasonable means of effectuating the statutory purpose, and the agency's conclusions are supported by substantial evidence on the record, the Court will accept the sufficiency of the agency's investigation and will not question its methodology. Ceramica Regiomontana, supra, 636 F.Supp. at 966. At the same time, the Court will not permit the agency to contravene or ignore the intent of Congress under the guise of lawful discretion. Id.
Whether ITA's decision to base its determination on best information available is supported by substantial evidence on the record or otherwise in accordance with law?
On September 9, 1983 ITA issued the final results of its administrative review based upon the best information available. Plaintiff alleges, and defendant admits, that the decision to rely on...
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Olympic Adhesives, Inc. v. U.S.
...Circuit Judge. This appeal is from the final judgment of the Court of International Trade in Olympic Adhesives, Inc. v. United States, 708 F.Supp. 344 (Ct.Int'l Trade 1989) (Musgrave, J.). Animal glue imported from Sweden has been subject to an antidumping order imposed by the Treasury Depa......