Yamaji Fishing Net Co. v. US

• Citation: 17 CIT 889,830 F. Supp. 1502
• Decision Date: 13 August 1993
• Docket Number: Court No. 91-11-00790.
• Parties: YAMAJI FISHING NET CO., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

830 F. Supp. 1502

17 CIT 889

YAMAJI FISHING NET CO., Plaintiff, v. UNITED STATES, Defendant.

Court No. 91-11-00790.

United States Court of International Trade.

August 13, 1993.

George R. Tuttle, P.C., George R. Tuttle, III, San Francisco, CA, for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., David Cohen, Director, Civil Div., Commercial Litigation Branch, U.S. Dept. of Justice, Jeffrey M. Telep, Dean Pinkert, Atty. Advisor, Office of the Deputy Chief Counsel for Import Administration, U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant.

OPINION

CARMAN, Judge:

Plaintiff moves for judgment upon the agency record pursuant to Rule 56.1 of this Court. Plaintiff seeks review of Final Results of Antidumping Duty Administrative Reviews: Fishnetting of Man-made Fibers From Japan, 56 Fed.Reg. 49,456 (1991) (Final Determination). Plaintiff requests that the Court remand this matter to Commerce for submission of additional information or determination of a new best information available (BIA) rate. The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1988).

BACKGROUND

The U.S. Department of Treasury issued an antidumping order in 1972 which covered fishing net made of manmade fibers from Japan. Fish Netting of Manmade Fibers From Japan, 37 Fed.Reg. 11,560 (1972). Between 1972 and 1988 Commerce conducted three administrative reviews of the antidumping order, covering various periods of time. See Fish Netting of Man-Made Fibers From Japan; Final Results of Administrative Review of Antidumping Finding, 48 Fed.Reg. 43,210 (1983) (First Review); Fish Netting of Man-Made Fibers From Japan; Final Results of Administrative Review of Antidumping Finding, 49 Fed.Reg. 18,339 (1984) (Second Review); Fishnetting of Man-Made Fibers From Japan; Final Results of Antidumping Duty Administrative Review, 53 Fed.Reg. 10,264 (1988) (Third Review).

In the First Review, Yamaji failed to provide questionnaire data for one of the periods under review. As a result, Commerce used BIA and assigned Yamaji a dumping margin of 18.3% for that period. First Review, 48 Fed.Reg. at 43,211-12. Commerce assigned Yamaji its previous margin of 18.3% margin for one period of the Second Review when it was forced once again to resort to BIA due to Yamaji's failure to respond. Second Review, 49 Fed.Reg. at 18,339. During the Third Review, Commerce was able to calculate margins based on the information Yamaji provided, thus avoiding the need to resort to BIA. Third Review, 53 Fed.Reg. at 10,264.

Commerce's fourth administrative review of the antidumping order, the review at issue, covered three periods: (1) from June 1984 through May 1985; (2) from June 1985 through May 1986; and (3) from June 1986 through May 1987. Final Determination, 56 Fed.Reg. at 49,456. On November 15, 1990, Commerce sent plaintiff a supplemental questionnaire asking Yamaji to provide previously submitted information in a computerized format pursuant to 19 C.F.R. § 353.31(e)(3) (1990). R.Doc. 82. Plaintiff responded that it would be financially impractical for it to comply because it did not own a computer. R.Doc. 67. Because Yamaji failed to provide sales listings on computer tape and adequate information on adjustments for physical differences in the merchandise and the viability of its home market, Commerce resorted to BIA. Preliminary Results of Antidumping Duty Administrative Reviews and Intent To Revoke in Part: Fishnetting of Man-made Fibers From Japan, 56 Fed.Reg. 33,246, 33,247 (1991) (Preliminary Determination). Yamaji did not submit a brief in response to the preliminary determination.

Commerce subsequently published its final determination in which it determined that Yamaji was "substantially cooperative, despite its failure to respond to Commerce's requests for additional information and its failure to respond to certain requests in the form required." Final Determination, 56 Fed.Reg. at 49,457. Commerce assigned Yamaji a BIA margin of 18.3% ad valorem which was based on the highest margin for Yamaji from any previous review. Id.

CONTENTIONS OF THE PARTIES

Plaintiff argues 19 C.F.R. § 353.31(e)(3) (1990), was not in effect at the time Commerce initiated Yamaji's annual review. Therefore, according to Yamaji, Commerce improperly applied the regulation to plaintiff in a retroactive manner. In addition, plaintiff claims Commerce violated the Administrative Procedure Act and the Due Process Clause by failing to notify Yamaji of the formal procedures for waiving the computerized data requirement. Yamaji further argues Commerce failed to notify it of the inadequacy of its response as required by 19 C.F.R. § 353.51(b) (1988). Finally, Yamaji contends its assessed margin of 18.3% is penal in nature and, therefore, should not be applied to a respondent found to be substantially cooperative.

Defendant maintains it complied with all statutory, regulatory and due process requirements, and therefore, its decision to resort to BIA was in accordance with law. Furthermore, defendant contends because Yamaji failed to provide current information in the proper format, Commerce was entitled to presume the 18.3% margin assessed against Yamaji in a prior review represented Yamaji's actual margin. Commerce argues it could not have failed to notify Yamaji of waiver procedures regarding the requirement of computerized data because such procedures do not exist. In response to plaintiff's claimed violation of the Administrative Procedure Act, defendant claims Commerce did not engage in rulemaking under the Act.

STANDARD OF REVIEW

In an action challenging Commerce's use of BIA, this Court must decide whether Commerce's determination is supported by substantial evidence on the record and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1988). "Substantial evidence is something more than a `mere scintilla,' and must be enough reasonably to support a conclusion." Ceramica Regiomontana S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff'd, 5 Fed.Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted).

The Court must accord substantial weight to the agency's interpretation of the statute it administers. American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986) (citations omitted). "An agency's `interpretation of the statute need not be the only reasonable interpretation or the one which the court views as the most reasonable.'" ICC Indus., Inc. v. United States, 5 Fed.Cir. (T) 78, 85, 812 F.2d 694, 699 (1987) (emphasis in original) (citation omitted). Where "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). However, the agency must not "contravene or ignore the intent of the legislature or the guiding purpose of the statute." Ceramica Regiomontana, 10 CIT at 405, 636 F.Supp. at 966 (citations omitted).

DISCUSSION

A. Computer Tape Requirement

Yamaji contends Commerce cannot apply the computer tape requirement of 19 C.F.R. § 353.31(e)(3) (1990) to plaintiff's deficiency questionnaire because (1) the regulation is contrary to congressional intent; and (2) such application produces an improper retroactive effect. The applicable regulation according to plaintiff is 19 C.F.R. § 353.46(a)(2) (1988). This regulation requires documents to "be submitted on letter-size paper, double-spaced, not permanently bound, but held securely together," but does not require parties to submit documents on computer tape. Id. The Court finds no merit in plaintiff's argument. Contrary to plaintiff's position, 19 C.F.R. § 353.31(e)(3) (1990), not the 1988 regulation upon which plaintiff relies, was in effect when Commerce issued its deficiency questionnaire to Yamaji.

On August 13, 1986, Commerce published its proposed rule and requested comments from the public. 51 Fed.Reg. 29,046. Commerce explained that 19 C.F.R. § 353.31 contained a new paragraph pertaining to the submission of computer tapes and printouts and that nonconforming submissions would be rejected. Id. at 29,052. On March 28, 1989, Commerce published the final rule which was to be effective as of April 27, 1989. 54 Fed.Reg. 12,742. The relevant part of the final rule reads as follows:

Computer tapes and printouts. The Secretary may require submission of factual information on computer tape unless the Secretary decides that the submitter does not maintain records in computerized form and cannot supply the requested information on computer tape without unreasonable additional burden in time and expense. In an investigation or administrative review, the tape shall be accompanied by three copies of any computer printout and three copies of the public version of the printout.

19 C.F.R. § 353.31(e)(3) (1990).

Yamaji argues that Commerce's computer tape submissions requirement clearly violates Congress' intent as expressed in the legislative history of § 776(c) of the Trade Agreements Act of 1979. Plaintiff cites the following language:

To further expedite assessment, the bill authorizes the Authority to require that information be submitted in a particular form and manner if reasonably available. For example, the Authority may require the exporter to furnish information on computer tape if the exporter maintains records in that form, but it may not require the exporter to purchase a computer or computerize information.

H.R.REP. No. 317, 96th Cong., 1st Sess. 69 (1979). Plaintiff contends this legislative history precludes Commerce from demanding computer tapes from any respondent that does not maintain computerized records.

"It is an established principle of jurisprudence that where a statute's meaning is clear, that meaning will be controlling, even if relevant legislative history suggests another plausible...