Sanyo Electric Co. v. United States

15 Ct. Int'l Trade 609
CourtUnited States Court of International Trade
DecidedDecember 6, 1991
DocketCourt No. 89-09-00540
StatusPublished

This text of 15 Ct. Int'l Trade 609 (Sanyo Electric Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanyo Electric Co. v. United States, 15 Ct. Int'l Trade 609 (cit 1991).

Opinion

Musgrave, Judge:

Plaintiffs Sanyo Electric Co., Ltd., and Sanyo Electric Inc. (“Sanyo”) challenge the final determination of the Department [610]*610of Commerce not to revoke the antidumping finding T.D. 71-76 with respect to Sanyo. Television Receivers, Monochrome and Color, From Japan; Final Results of Antidumping Duty Administrative Review and Determination Not to Revoke in Part, 54 Fed. Reg. 35,517 (August 28, 1989). The Court has jurisdiction under 28 U.S.C. § 1581(c) (1991). Plaintiff s motion for judgment on the agency record is denied, and the case is dismissed.

Background

In 1971, The Treasury Department published T.D. 71-76, which found that televisions imported from Japan were being or were likely to be sold at less than fair value (“LTFV”) in the United States. Television Receiving Sets, Monochrome and Color, From Japan, 36 Fed. Reg. 4,597 (March 10, 1971). In 1983, the Department of Commerce published a tentative determination to revoke T.D. 71-76 with respect to Sanyo, based on the facts that Sanyo had not sold televisions at LTFV for two years and had submitted a letter of assurance agreeing to an immediate suspension of liquidation and reinstatement of T.D. 71-76 if there were indications that Sanyo had made sales at LTFV following revocation.

On August 28, 1989, Commerce published Television Receivers, Monochrome and Color, From Japan; Final Results of Antidumping Duty Administrative Review and Determination Not to Revoke in Part, 54 Fed. Reg. 35,517. After an analysis of the effect of various market conditions, Commerce stated, “ [W] e cannot conclude at this time that there is no likelihood of the resumption of LTFV sales by * * * Sanyo,” and determined not to revoke the order with respect to Sanyo.

Sanyo challenges the final determination on three grounds, as follow. First, the determination was unlawfully based upon an irrebuttable presumption that Sanyo would resume shipments of televisions to the United States. Second, there is no evidence in the record that supports Commerce’s presumption that Sanyo will resume sales upon revocation of the antidumping finding. Lastly, Commerce’s determination that Sanyo’s sales would be at LTFV, if they were to occur, is unsupported by substantial evidence in the record.

Standard of Review

Section 751 (c) of the Tariff Act of 1930 commits the decision to revoke an antidumping duty order to the unfettered discretion of the Department of Commerce: “The administering authority may revoke, in whole or in part * * * an antidumping duty order * * * after investigation under this section.” 19 U.S.C. § 1675(c) (1991) (emphasis added). Commerce regulations vest this broad discretion to determine whether or not to revoke in the Secretary of Commerce.

Whenever the Secretary determines that sales of merchandise subject to an Antidumping Finding or Order * * * are no longer being made at less than fair value * * * and is satisfied that there is no like[611]*611lihood of resumption of sales at less than fair value, he may act to revoke or terminate, in whole or in part, such Order or Finding * * *

19 C.F.R. § 353.54(a) (1988) (emphasis added).

The language of the regulation indicates that the Secretary is not compelled to grant revocation even when plaintiffs satisfy the requirements for revocation. Matsushita Electric Industrial Co. v. United States, 12 CIT 455, 463, 688 F. Supp. 617, 623 (1988), aff’d 861 F.2d 257, 7 Fed. Cir. (T) 13 (1988).

The Court shall hold the determination unlawful if it finds the determination to be unsupported by substantial evidence on the record, or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1991). However, the Court “must accord substantial weight to an agency’s interpretation of a statute it administers.” Zenith Radio Corporation v. United States, 437 U.S. 443, 450-51, 98 S. Ct. 2441, 2445, 57 L. Ed. 2d 337, 343 (1978). Commerce has broad discretion in enforcing the trade laws and the decision whether to revoke an antidumping order does not depend on the weight of the evidence, but on the expert judgment of the International Trade Administration based on the evidence of record. Manufacturas Industriales De Nogales, S.A. v. United States, 11 CIT 531, 535-36, 666 F. Supp. 1562, 1567 (1987).

Analysis

Sanyo first argues that the determination was based upon an irrebut-table presumption that Sanyo would resume sales in the United States. In its brief to the Court, Sanyo does not elaborate on the precise nature of the presumption, or where in the determination it is relied upon, but concentrates instead on showing why such a presumption is illegal. At oral argument, Sanyo stated that because no explicit consideration of Sanyo’s evidence that it would not resume shipments appears in the Department’s statement of its position, Commerce simply assumed that such shipments would occur.

An examination of the determination, however, reveals that Commerce did not presume or determine that Sanyo would resume shipments. Rather, Commerce stated that given market condition, “it is difficult to see how * * * Sanyo, if they were to resume shipments to the United States on a competitive basis, could compete in such a tight market without selling at LTFV.” Television Receivers, from Japan; Final Determination 54 Fed. Reg. at 35,519 (emphasis added). Based on this observation, Commerce found it could not conclude there was no likelihood that Sanyo would resume LTFV sales, and determined not to revoke the order with respect to Sanyo.

The regulation does not require Commerce to determine whether or not shipments will resume. Instead, the plaintiff must establish to the satisfaction of the Secretary that there is no likelihood of the resumption of LTFV sales. Commerce is not required to affirmatively find that shipments are likely to resume, or else be satisfied that no likelihood of [612]*612LTFV sales exists. By couching its assessment of whether Sanyo could export to the United States without selling at LTFV in the conditional, Commerce declined to assess the likelihood that Sanyo would resume shipping.

While as Sanyo argues, there can be no LTFV sales if there are no shipments, Sanyo does not argue that it cannot resume shipments, nor has it foresworn shipments. Instead, it argues it has no economic incentive to resume shipments. This Court does not review whether the evidence must satisfy the Secretary, but only whether the determination is lawful and supported by substantial evidence on the record. 19 U.S.C. § 1516a(b) (1) (B).

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