Universal Polybag Co., Ltd. v. U.S.

577 F.Supp.2d 1284

UNIVERSAL POLYBAG CO., LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, and Polyethylene Retail Carrier Bag Committee, et al., Defendant-Intervenors.

Slip Op. 08-88.

Court. No. 07-00043.

United States Court of International Trade.

August 28, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Riggle & Craven (David J. Craven) for Plaintiff King Pac Industrial Co., Ltd.

Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Brach, Civil Division, U.S. Department of Justice (Sameer Yerawadekar); and Mark Lehnardt, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for Defendant United States.

King & Spalding LLP, Washington, DC (Joseph W. Dorn, Stephen A. Jones, Daniel L. Schneiderman, and Elizabeth Duall) for Defendant-Intervenors Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation.

OPINION

WALLACH, Judge.

I INTRODUCTION

Plaintiff King Pac Industrial Co., Ltd. ("King Pac") and Defendant-Intervenors Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation (collectively "the Committee") challenge different aspects of the United States Department of Commerce's ("Commerce" or "the Department") findings in Polyethylene Retail Carrier Bags from Thailand: Final Results of Antidumping Duty Administrative Review, 72 Fed.Reg. 1,982 (January 17, 2007) ("Final Results") covering the period January 26, 2004 through July 31, 2005. This court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Because Commerce acted within its discretion, its determinations are sustained.

II BACKGROUND

Commerce entered an antidumping order on certain polyethylene retail carrier bags ("PRCBs") from Thailand on August 9, 2004. Antidumping Duty Order: Polyethylene Retail Carrier Bags from Thailand, 69 Fed.Reg. 48,204 (August 9, 2004). The following year, the Committee requested a review of King Pac and eleven other companies in response to the Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 70 Fed.Reg. 44,085, 44,086 (August 7, 2005). The Department then initiated an administrative review of the companies' exports of PRCBs during the period of review. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 70 Fed.Reg. 56,631, 56,632 (September 28, 2005).

On September 11, 2006, Commerce published its preliminary results, in which it determined that due to difficulties in verification the use of facts available was necessary and the application of adverse inferences was warranted. Polyethylene Retail Carrier Bags from Thailand: Preliminary Results of Antidumping Duty Administrative Review, 71 Fed.Reg. 53,405, 53,407 (September 11, 2006) ("Preliminary Results"). The Department selected an adverse facts available ("AFA") rate of 122.88%, determining that the rate was reliable and relevant, and corroborated "to the extent practicable." Id. Commerce also determined that the provisional measure cap, 19 U.S.C. § 1673f(a), applied, and so the merchandise was to be liquidated at the lesser of (1) the 122.88% rate that was assigned in the review, or (2) the amount of the bond or cash deposit provided upon entry. Release of Final Results and Draft Liquidation Instructions (January 10, 2007), Public Record ("P.R.") 278. The rate was therefore capped at the amount of the cash deposit provided upon entry of the merchandise. On October 11, 2006 King Pac filed a brief challenging Commerce's conclusions from the verification, and arguing that Commerce should not have applied adverse facts, or in the alternative, should have only applied partial adverse facts. On the same date, the Committee filed a brief arguing that the Department did not properly apply the provisional measures cap to King Pac's exports in this review.¹ Commerce published on January 17, 2007, the final results of its review, determining that the application of an AFA rate was warranted, and that the provisional measures cap was correctly applied to cap the duties at the amount collected prior to preliminary review. Final Results, 72 Fed.Reg. 1,982; Issues and Decisions Memorandum for the Antidumping Duty Administrative Review of Polyethylene Retail Carrier Bags from Thailand for the Period of Review January 26, 2004 through July 31, 2005 (January 9, 2007), P.R. 274 ("I & D Memo") cmt. 10, at 25-27, cmt. 11, at 29-31 (AFA rate), cmt. 12, at 32 (provisional measures cap). On February 16, 2007, Plaintiff and Defendant-Intervenors timely initiated their actions.²

III STANDARD OF REVIEW

This court will sustain an agency's findings, conclusions, or determinations unless they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i); see Magnesium Corp. of Am. v. United States, 166 F.3d 1364, 1368 (Fed.Cir.1999). Substantial evidence is "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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Courts have deemed substantial evidence to be "something less than the weight of the evidence," and have found that "the possibility of drawing two inconsistent conclusions" from the evidence presented will not necessarily prevent an agency's finding from being supported by substantial evidence. Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citing NLRB v. Nevada Consol. Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 86 L.Ed. 1305 (1942); Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21 (5th Cir.1960)).

When evaluating Commerce's statutory interpretation the court uses a two step analysis, first examining whether Congress has "directly spoken to the precise question at issue." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If this is the case, courts then must "give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778; see Household Credit Servs. v. Pfennig, 541 U.S. 232, 239 124 S.Ct. 1741, 158 L.Ed.2d 450 (2004). If instead Congress has left a "gap" for Commerce to fill, the agency's regulation is "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. Additionally, in matters of statutory construction this court will show "great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The agency's construction need not be the only reasonable one or even the same result this court would have reached had the question arisen in the first instance in a judicial proceeding. Id. (citing Unemployment Comp. Comm'n of Alaska v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946)).

IV DISCUSSION

A Commerce's Determination to Resort to Facts Available and to Use Adverse Inferences to Determine King Pac's Dumping Margin was Appropriate, and the AFA Rate Chosen was Sufficiently Corroborated

During an antidumping investigation, Commerce is to resort to the use of facts available to reach a determination when necessary information is not available or not provided appropriately by the interested party. 19 U.S.C § 1677e(a). According to the statute:

(a) In general. If—

(1) necessary information is not available on the record, or

(2) an interested party or any other person—

(A) withholds information that has been requested by the administering authority or the Commission under this subtitle,

(B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and

(e) of section 1677m of this title,

(C) significantly impedes a proceeding under this title, or

(D)provides such information but the information cannot be verified as provided in section 1677m(i) of this title, the administering authority and the Commission shall, subject to section 1677m(d) of this title, use the facts otherwise available in reaching the applicable determination under this subtitle.

19 U.S.C. § 1677e(a). In cases where the Department resorts to the use of facts available, it must first "promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigations or reviews under this subtitle." 19 U.S.C. § 1677m(d). The Department cannot decline to consider information that is provided by an interested party and is necessary to the determination but fails to meet the agency's requirements if:

(1) the information is submitted by the deadline established for its submission,

(2) the information can be verified,

(3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination,

(4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by [Commerce] or the Commission with respect to the information, and

(5) the information can be used without undue difficulties.

19 U.S.C. § 1677m(e). If a party's explanation of the deficiency is untimely or insufficient and one of the above five factors is not met, Commerce may disregard all or part of the information provided and use the facts otherwise available. 19 U.S.C. § 1677e(a).

Additionally, Commerce is permitted to apply an adverse...