652 F.Supp. 724 (CIT. 1987), Court 84-12-01709, PQ Corp. v. United States

Docket Nº:Court 84-12-01709
Citation:652 F.Supp. 724
Party Name:PQ Corp. v. United States
Case Date:January 27, 1987
Court:Court of International Trade
 
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652 F.Supp. 724 (CIT. 1987)

PQ CORPORATION, Plaintiff,

v.

The UNITED STATES, Defendant,

and

Rhone Poulenc, Inc.,

and

Rhone Poulenc, S.A., Defendants-Intervenors.

Court No. 84-12-01709.

United States Court of International Trade.

Jan. 27, 1987

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[Copyrighted Material Omitted]

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Mandel, Grunfeld & Sosnov (Bruce Mitchell and Steven R. Sosnov), New York City, for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (Sheila N. Ziff), Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

Donohue and Donohue (John M. Peterson and James A. Geraghty), New York City, for defendants-intervenors.

OPINION AND ORDER

RESTANI, Judge:

Plaintiff, a U.S. producer of anhydrous sodium metasilicate (ASM), challenges the final results of the third administrative review, made pursuant to 19 U.S.C. § 1675 (1982), by the United States Department of Commerce, International Trade Administration (ITA), of an antidumping order on ASM imported from France. In its review the ITA determined that dumping margins no longer exist for ASM, that no antidumping duty would be assessed, and that 60 percent cash deposits of estimated antidumping duties were no longer required. This matter is before the court pursuant to plaintiff's motion for judgment upon an agency record under Rule 56.1.

The question presented is whether ITA's determinations are supported by substantial evidence in the record and are otherwise in accordance with law, 19 U.S.C. § 1516a(b)(1)(B) (1982). Specifically:

(1) Whether ITA erred in considering the only importation of ASM from France during the review period, where the importation was admittedly made for the purpose of adjusting antidumping cash deposit rates;

(2) Whether ITA erred in determining United States price by applying purchase price to a transaction between a foreign manufacturer's U.S. subsidiary and an unrelated U.S. buyer, which occurred prior to importation;

(3) Whether ITA erred in not deducting the deposit of estimated antidumping duties from United States price, where the deposit was paid by the exporter's subsidiary without being passed onto the U.S. buyer, and where, as to the relevant merchandise, no antidumping duty was ever actually assessed;

(4) Whether ITA erred in basing its weighted average foreign market value upon home market sales of identical merchandise made during a 30 day period extending past the exportation or sales date.

BACKGROUND

On January 7, 1981, ITA published an antidumping order which, in pertinent part, directed Customs to require cash deposits of estimated antidumping duties in the amount of 60 percent ad valorem on ASM imported from France. 46 Fed.Reg. 1667 (1981). This 60 percent deposit rate remained

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in effect during the first and second administrative reviews of the antidumping order, during which time there had been no shipments of ASM. 47 Fed.Reg. 15620 (1982); 47 Fed.Reg. 44594 (1982).

Although defendant-intervenors claimed that the conditions which gave rise to the initial dumping had changed, 1 ITA's position was that it was without power to adjust cash deposit rates without an actual importation made during the period of review. In meetings with defendant-intervenors, ITA officials suggested that making an actual importation was the proper way to establish that conditions had changed. As a result, a "decision was made to make one sale in a commercial quantity to provide a predicate for the deposit adjustment." Intervenors' Brief at 5-6.

A single shipment of ASM was imported from France in 1982 pursuant to a back-to-back sale and resale involving Rhone Poulenc, S.A. (Rhone France), its U.S. subsidiary, Rhone Poulenc, Inc. (Rhone U.S.), and an unrelated U.S. buyer. 2 The transactions occurred as follows: July 7, 1982, Rhone U.S. placed an order with Rhone France; 3 July 9, Rhone France confirmed Rhone U.S.'s order, Rhone U.S. recorded an order for an unrelated U.S. buyer, and the buyer confirmed its order; July 19, the merchandise was exported from France; and July 27, the merchandise was imported into the United States in the name of Rhone U.S. and sent directly from the port of entry to the U.S. buyer.

The 60 percent deposit of estimated antidumping duties was paid by Rhone U.S., through its broker and apparently was never included in the price paid by the U.S. buyer.

In the third administrative review, which covered the July 1982 sale of ASM, ITA determined that no dumping margins existed for 1982, that antidumping duties should not be assessed upon the 1982 entry, and that no cash deposits of estimated antidumping duties shall be required until publication of the final results of the next administrative review. 49 Fed.Reg. 43733 (1984). It is this third review which is at issue.

I. ANNUAL REVIEW BASED UPON A SINGLE ENTRY

Section 751 of the Tariff Act of 1930 provides for administrative review of antidumping duty orders. At the time of the third review, section 751(a) required, in pertinent part, that ITA review its antidumping duty orders at least once a year, 4 and that it:

shall determine--

(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and

(B) the amount, if any, by which the foreign market value of each such entry

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exceeds the United States price of the entry.

19 U.S.C. § 1675(a)(2) (1982). The statutory definition of foreign market value provides that "[i]n the ascertainment of foreign market value for the purposes of this subtitle no pretended sale or offer for sale, and no sale or offer for sale intended to establish a fictitious market, shall be taken into account." 19 U.S.C. § 1677b(a)(1) (1982). There is no comparable provision in the statute's definition of United States price. See 19 U.S.C. § 1677a (1982).

A. "EACH" ENTRY

Plaintiff argues that, in conducting its third administrative review, pursuant to section 751(a), ITA should not have determined the foreign market value and United States price of the July 1982 entry. Specifically, plaintiff states that "[o]ne entry alone in a given year does not fit into the statutory mold" and, relying upon a dictionary definition of the word "each" as it is used in § 751(a), asserts that "[t]here must be more than one entry to use correctly the word 'each.' " In addition, plaintiff contends that " an 'actual sale' for the purpose of creating a fictitious market is no sale at all," Plaintiff's Brief at 12, and urges that "to affirm the Congressional intent, common sense, and reality, section 773(a)(1), 19 U.S.C. § 1677b(a)(1) [the definition of foreign market value] should be read in pari materia with the provisions relating to United States price, section 772, 19 U.S.C. § 1677a." Id. at 13-14.

Plaintiff's reliance upon the dictionary definition of the word "each" 5 if allowed to govern interpretation of section 751(a), would lead to absurd results that are contrary to Congressional policy. As the court has noted in an earlier interpretation of section 751(a):

[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Asahi Chemical Industry Co., Ltd. v. United States, 4 CIT 120, 124, 548 F.Supp. 1261, 1265 (1982) (citing Learned Hand in Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945)).

In Asahi the court rejected the literal interpretive approach of the plaintiff and party-in-interest and, after examining related statutory provisions and their legislative history, concluded that:

These statutory provisions and the legislative history set out above thus evidence Congress' intent that the ITA is to consider only the actual entry, sale and purchase of merchandise when calculating antidumping duty assessments and estimates under section 751(a). Projecting how Congress would have dealt with the concrete situation of determining LTFV margins when no shipments occur during a review period, it is reasonable to conclude that Congress would have directed the ITA to use the most recent price and value information available based on actual entries, sales, and purchases of merchandise--as the ITA has consistently done.

4 CIT at 127, 548 F.Supp. at 1267. The court rejected Asahi's interpretation that ITA must limit its review exclusively to facts and circumstances as they exist during the review period, even when there has not been a single entry during the period. Id. The court noted that Asahi's interpretation, taken to its logical extreme would lead to the absurd conclusion that in the absence of entries during a review period, U.S. price is no longer less than foreign market value, and thus there can be no

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antidumping margin. 4 CIT at 127-28, 548 F.Supp. at 1267.

Plaintiff cites Asahi in arguing that "[f]or much the same reason that the court did not permit the absence of a shipment to erase the estimated deposit requirement, it should not permit the presence of this one sale to do the same: viz. such would be contrary to the intent of Congress." Plaintiff's Brief at 9. As the court made clear in Asahi, Congress' intent was that "ITA is to consider only the actual entry, sale and purchase of merchandise when calculating antidumping duty assessments and estimates under section 751(a)." 4 CIT 127, 548 F.Supp. at 1267. ITA has not based its determination upon the absence of data, but rather it used the most recent price...

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