Transcom, Inc. v. U.S., Slip Op. 00-146.

• Decision Date: 07 November 2000
• Docket Number: No. 97-02-00248.,Slip Op. 00-146.,97-02-00248.
• Parties: TRANSCOM, INC., Plaintiff, L & S Bearing Company, Plaintiff-Intervenor, v. The UNITED STATES, Defendant, The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

121 F.Supp.2d 690

TRANSCOM, INC., Plaintiff L & S Bearing Company, Plaintiff-Intervenor, v. The UNITED STATES, Defendant The Timken Company, Defendant-Intervenor.

Slip Op. 00-146.

No. 97-02-00248.

United States Court of International Trade.

November 7, 2000.

COPYRIGHT MATERIAL OMITTED

Neville, Peterson & Williams, Westfield, NJ (George W. Thompson, John M. Peterson and Curtis W. Knauss) for plaintiff.

Cohen Darnell & Cohen, P.L.L.C. (Mark A Cohen) for plaintiff-intervenor.¹

David W. Ogden, Assistant Attorney General; David M. Cohen, Director; Commercial Litigation Branch, Civil Division, United States Department of Justice (Henry R. Felix); of counsel: Mildred E. Steward, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for defendant.

Stewart and Stewart (Terence P. Stewart, James R. Cannon, Jr. and Amy S. Dwyer) for defendant-intervenor.

OPINION

TSOUCALAS, Senior Judge.

Plaintiff, Transcom, Inc. ("Transcom"), a United States corporation, moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the United States Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Final Results of Antidumping Duty Administrative Review and Revocation in Part of Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China ("Final Results"), 62 Fed.Reg. 6189 (Feb. 11, 1997). Specifically, Transcom contends that Commerce: (1) failed to provide notice to Transcom and Transcom's Hong Kong exporters as required under 19 U.S.C. §§ 1675(a), 1677e(b)(1994) and 19 C.F.R. § 353.22(a),(c) (1994); (2) unlawfully resorted to punitive use of best information available in determining the antidumping rate applicable to Transcom's entries from Transcom's Hong Kong exporters in violation of 19 U.S.C. § 1675(a) and 19 C.F.R. § 353.22, 355.37; and (3) by doing so, deprived Transcom of its Fifth Amendment Due Process rights.

BACKGROUND

This case concerns the seventh administrative review of the antidumping duty order on tapered roller bearings ("TRBs") and parts thereof, finished and unfinished, imported from the People's Republic of China ("PRC") during the period of review ("POR") covering June 1, 1993, through May 31, 1994. Commerce published the preliminary results on September 26, 1995. See Preliminary Results of Antidumping Administrative Review on Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China ("Preliminary Results"), 60 Fed. Reg. 49,572. Commerce published Final Results on February 11, 1997. See 62 Fed.Reg. 6189.

Since this administrative review was initiated before December 31, 1994, the applicable statutory provisions are those that existed prior to January 1, 1995, the effective date of the amendments made by the Uruguay Round Agreements Act ("URAA"), Pub.L. No. 103-465, 108 Stat. 4809 (1994) (effective Jan. 1, 1995).

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).

STANDARD OF REVIEW

In reviewing a challenge to Commerce's final determination in an antidumping administrative review, the Court will uphold Commerce's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (1994).

I. Substantial Evidence Test

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). 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 an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted). Moreover, "[t]he court may not substitute its judgment for that of the [agency] when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983) (quoting, in turn, Universal Camera, 340 U.S. at 488, 71 S.Ct. 456)).

II. Chevron Two-Step Analysis

To determine whether Commerce's interpretation and application of the antidumping statute is "in accordance with law," the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step, the Court reviews Commerce's construction of a statutory provision to determine whether "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ[s] the `traditional tools of statutory construction.'" Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed.Cir.1998) (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). "The first and foremost `tool' to be used is the statute's text, giving it its plain meaning. Because a statute's text is Congress's final expression of its intent, if the text answers the question, that is the end of the matter." Id. (citations omitted). Beyond the statute's text, the tools of statutory construction "include the statute's structure, canons of statutory construction, and legislative history." Id. (citations omitted); but see Floral Trade Council v. United States, 23 CIT ___, ___ n. 6, 41 F.Supp.2d 319, 323 n. 6 (1999) (noting that "[n]ot all rules of statutory construction rise to the level of a canon, however") (citation omitted).

If, after employing the first prong of Chevron, the Court determines that the statute is silent or ambiguous with respect to the specific issue, the question for the Court becomes whether Commerce's construction of the statute is permissible. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Essentially, this is an inquiry into the reasonableness of Commerce's interpretation. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996). Provided Commerce has acted rationally, the Court may not substitute its judgment for the agency's. See IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed.Cir.1992); see also Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994) (holding that "a court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another"). The "[C]ourt will sustain the determination if it is reasonable and supported by the record as a whole, including whatever fairly detracts from the substantiality of the evidence." Negev Phosphates, Ltd. v. United States Dep't of Commerce, 12 CIT 1074, 1077, 699 F.Supp. 938, 942 (1988) (citations omitted). In determining whether Commerce's interpretation is reasonable, the Court considers the following non-exclusive list of factors: the express terms of the provisions at issue, the objectives of those provisions and the objectives of the antidumping scheme as a whole. See Mitsubishi Heavy Indus. v. United States, 22 CIT ___, ___, 15 F.Supp.2d 807, 813 (1998).

III. Southern Cal. Edison Co. Analysis

If the language of a regulation validly implemented under the Chevron test speaks unambiguously to the issue at hand, the precise letter of this regulation must be followed. See Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1663, 146 L.Ed.2d 621 (2000). Otherwise, the Court's deference to a contrary agency position would "permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation." Id.

Conversely, an agency's interpretation of its own regulation is entitled to deference when the language of the regulation is ambiguous or the regulation is silent about the issue at hand. See id. (citing Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). Deference, however, is proper only if the agency's interpretation is reasonable. "[A]n agency's interpretation of its own regulations must be given effect `so long as the interpretation sensibly conforms to the purpose and wording of the regulations.'" Southern Cal. Edison Co. v. United States, 226 F.3d 1349, 1356 (Fed.Cir.2000) (quoting Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991)). The Court's deference is particularly appropriate when

the agency is applying its regulations to a complex or changing circumstance, thus requiring the agency to bring to bear its unique expertise and policy-making prerogatives. When ... judicial deference is [proper], a court must accept the agency's reasonable interpretation of a regulation, even if there may be other reasonable interpretations to which the regulation is susceptible, and even if the court would have preferred an alternative interpretation.

Id. at 1357 (internal citations omitted).

DISCUSSION

I. Proper and Sufficient Notice

A. Background

This case concerns Commerce's procedure for conducting an administrative review and imposing antidumping duties. The procedure involves four steps: (1) Commerce publishes a notice of Opportunity to Request an Administrative Review for the POR at issue; (2) upon receipt of such request, Commerce publishes a notice of Initiation of an Administrative Review in the Federal Register; (3) Commerce, in order to obtain pertinent information, distributes or makes available questionnaires to those entities Commerce...