Wieland-Werke Ag v. U.S., Slip Op. 98-23.
| Decision Date | 06 March 1998 |
| Docket Number | Slip Op. 98-23.,Court No. 96-10-02297. |
| Citation | 4 F.Supp.2d 1207 |
| Parties | WIELAND-WERKE AG, Langenberg Kupfer und Messingwerke GmbH KG and Metallwerke Schwarzwald GmbH, Plaintiffs, v. UNITED STATES, Defendant, and Hussey Copper Ltd., the Miller Company, Outokumpu American Brass, Revere Copper Products, Inc., International Association of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFLCIO), Mechanics Educational Society of America (Local 56), and United Steelworkers of America (AFL-CIO/CLC), Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Arnold & Porter (Claire E. Reade, Richard A. Johnson, Ranjit Dhindsa), Washington, DC, for Plaintiffs.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (Randi-Sue Rimerman), for Defendant; David W. Richardson, Intern. Office of Chief Counsel for Import Admin., of counsel.
Collier, Shannon, Rill & Scott (David A. Hartquist, Jeffrey S. Beckington, Mary T. Staley), Washington, DC, for Defendant-Intervenors.
Plaintiffs, Wieland-Werke AG, Langenberg Kupfer-und-Messingerwerke GmbH, and Metallwerke Schwarzwald GmbH (collectively "Wieland") contest certain aspects of the Department of Commerce, International Trade Administration's ("Commerce") final determination in Brass Sheet and Strip From Germany; Final Results of Antidumping Duty Administrative Review and Determination Not To Revoke in Part, 61 Fed.Reg. 49,727 (Sept. 23, 1996) ("Final Results"), as unsupported by substantial evidence and contrary to law. They claim that Commerce was required to revoke the Antidumping Duty Order as it applied to Wieland.
Commerce admits that it failed to provide the parties with an opportunity to comment on some of the information upon which it relied in making its determination not to revoke the Antidumping Duty Order. Consequently, Commerce asks for a remand in order to provide the parties with an opportunity to comment, and to enable Commerce to reconsider its determination in light of any comments received. For the reasons that follow, the Court grants Commerce's request. This Court has jurisdiction under 19 U.S.C § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994).
The Final Results at issue are the eighth administrative review of the Antidumping Duty Order concerning brass sheet and strip from Germany. See Antidumping Duty Order; Brass Sheet and Strip from the Federal Republic of Germany, 52 Fed.Reg. 6997 (Mar. 6, 1987) ("Order"). That Order was the result of an antidumping investigation initiated at the request of Defendant-Intervenors Hussey Copper, Ltd., The Miller Company, Outokumpu American Brass, Revere Copper Products, Inc., International Association of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFL-CIO), Mechanics Educational Society of America (Local 56), and United Steelworkers of America (AFL-CIO/CLC) (collectively "Petitioners"), among others not participating in this appeal. Final Determination of Sales at Less Than Fair Value; Brass Sheet and Strip From the Federal Republic of Germany, 52 Fed.Reg. 822 (Jan. 9, 1987).
At Wieland's request, Commerce initiated this review for the purpose of determining the dumping margin and considering whether the Order should be revoked as it applied to Wieland. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 60 Fed.Reg. 19,017 (Apr. 14, 1995). Previously, Commerce had found that Wieland had a de minimis margin in both the sixth and seventh administrative reviews. See Brass Sheet and Strip From Germany; Final Results of Antidumping Duty Administrative Reviews, 60 Fed.Reg. 38,542, 38,546 (Jul. 27, 1995) and Brass Sheet and Strip From Germany; Final Results of Antidumping Duty Administrative Review, 60 Fed.Reg. 38,031, 38,035 (Jul. 25, 1995), respectively.
On May 6, 1996, Commerce issued its preliminary results, finding a de minimis dumping margin and indicating that it intended to grant Wieland's request to revoke the Order. Brass Sheet and Strip From Germany; Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent To Revoke Order in Part, 61 Fed.Reg. 20,214 (May 6, 1996) ("Preliminary Results"). After the Preliminary Results were issued, Petitioners expressed concern about the intent to revoke and submitted new factual information on the issue of whether it was likely that Wieland would resume dumping. Commerce rejected that information as untimely, but subsequently collected additional information on its own. That data included the information untimely submitted by Petitioners and rejected by Commerce pursuant to 19 C.F.R. § 353.31(a)(3) (1996). See Final Results Analysis Mem. at 3, Administrative Record ("AR"), Fiche 14, Fr. 1. Commerce had rejected two articles (Boerson Zeitung from March 5, 1996 and Handelsblatt from March 7, 1996) as well as statistical information regarding U.S. imports of brass, and then gathered the same information. See June 5, 1996 Pet. Case Brief, at appendix 1 to Def.-Int.'s Oppos. To Plaintiff's Mot. for Jdmt on the Agency Record and Final Results Analysis Mem., Appendix 2, AR, Fiche 14, Fr. 1. Commerce also obtained material that it had not previously rejected as untimely. Those articles were from the following publications: Metal Bulletin, Purchasing, Metal Statistics, American Metal Market, and 1985 U.S. Foreign Trade Highlights. Final Results, 61 Fed.Reg. at 49730-31; Final Results Analysis Mem., Appendix 2, AR, Fiche 14, Fr. 1.
Although Commerce used this information in reaching its Final Results, it failed to provide the parties with an opportunity to comment upon it. Subsequently, even though the investigation resulted in a zero dumping margin for Wieland, Commerce did not revoke the Order with respect to Wieland. Final Results, 61 Fed.Reg. at 49,732. Commerce was not satisfied that there was no likelihood that Wieland would resume dumping if the order were revoked. Id.
In reviewing a final ITA determination, this Court will "hold unlawful any determination finding, or conclusion 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). "Substantial evidence `is something less than the weighing of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the administrative agency's finding from being supported by substantial evidence.'" Matsushita Elec. Indus. Co., Ltd. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984) (quoting Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). The Court is not to weigh the quality or quantity of the evidence or to reject finding on grounds of a "differing interpretation" of the record. Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 894 F.2d 385 (Fed.Cir. 1990).
In reviewing an agency's construction of the statute that the agency administers, the Court's initial inquiry is to determine "whether Congress has directly spoken to the precise question at issue." Chevron U.S.A. Inc. v. Nat. Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation." Id. at 843-44, 104 S.Ct. 2778. Consequently, "[t]he court will defer to the agency's construction of the statute as a permissible construction if it `reflects a plausible construction of the plain language of the statute[s] and does not otherwise conflict with Congress' express intent.'" Torrington Co. v. United States, 82 F.3d 1039, 1044 (Fed.Cir.1996) (citations omitted).
Commerce Applied The Correct Legal Standard Because The Phrase "no likelihood of" Has The Same Meaning As "not likely to"
Wieland's primary argument is that the phrase "no likelihood" sets a different and higher standard than the words "not likely to". As a matter of proof, Wieland has failed to carry its burden to establish that proposition, and as a matter of law, it fails under standard rules of statutory construction.
The statute provides that "[t]he administering authority may revoke, in whole or in part, ... an antidumping duty order or finding, ... after [a periodic review of amount of duty]...." 19 U.S.C. § 1675(d)(1) (1994). Commerce has implemented regulations in accordance with the broad discretion granted to it by the statute. Commerce's regulations provide:
The Secretary may revoke an order in part if the Secretary concludes that:
(i) One or more producers or resellers covered by the order have sold the merchandise at not less than foreign market value for a period of at least three consecutive years;
(ii) It is not likely that those persons will in the future sell the merchandise at less than foreign market value; and
(iii) For producers or resellers that the Secretary previously has determined to have sold the merchandise at less than foreign market value, the producers or resellers agree in writing to their immediate reinstatement in the order, as long as any producer or reseller is subject to the order, if the Secretary concludes under § 353.22(f) that the producer or reseller, subsequent to the revocation, sold the merchandise at less than foreign market value.
19 C.F.R. § 353.25(a)(2)(i) (1996). Thus, in addition to three consecutive years of zero or de minimis dumping margins and certification that they will agree to the reinstatement of the order if necessary, Commerce must be satisfied that the respondents are not likely to dump in the future before it will revoke the Order.
The parties agree that Wieland satisfied the...
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