Rhone Poulenc, Inc. v. US

• Citation: 13 CIT 218,710 F. Supp. 341
• Decision Date: 21 March 1989
• Docket Number: Court No. 88-03-00198.
• Parties: RHONE POULENC, INC., and Rhone Poulenc Chimie de Base S.A., Plaintiffs, v. UNITED STATES, Defendant, and PQ Corporation, Defendant-Intervenor.
• Court: U.S. Court of International Trade

710 F. Supp. 341

13 CIT 218

RHONE POULENC, INC., and Rhone Poulenc Chimie de Base S.A., Plaintiffs, v. UNITED STATES, Defendant, and PQ Corporation, Defendant-Intervenor.

Court No. 88-03-00198.

United States Court of International Trade.

March 21, 1989.

Donohue and Donohue and James A. Geraghty, for plaintiffs.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, U.S. Dept. of Justice, Washington, D.C., M. Martha Ries, Office of the Chief Counsel for Intern. Trade, U.S. Dept. of Commerce, and Craig L. Jackson, for defendant.

Sosnov & Sosnov and Steven R. Sosnov, Norristown, Pa., for defendant-intervenor.

DiCARLO, Judge:

Pursuant to Rule 56.1 of the Rules of this Court, Rhone Poulenc, Inc. and Rhone Poulenc Chimie de Base, S.A. (plaintiffs) challenge the final determination under 19 U.S.C. § 1675(a) (1982 & Supp. IV 1986) of the International Trade Administration of the United States Department of Commerce (Commerce) in the 1984 administrative review of the antidumping duty order entered on anhydrous sodium metasilicate (ASM) from France. Anhydrous Sodium Metasilicate From France; Final Results of Antidumping Duty Administrative Review, 53 Fed.Reg. 4195 (Feb. 12, 1988).

The Court has jurisdiction under 28 U.S.C. § 1581(c) (1982). The Court finds that Commerce may require respondents who maintain their relevant business information in a computerized data base to make their submissions on computer tape, and that Commerce may apply the best information otherwise available when a respondent refuses to supply information in the requested form and where the information provided is deficient. The Court holds that where the most recent information is based on only a small number of sales or is otherwise not representative, the best information otherwise available may not necessarily be the most recent data available. The Court also finds that the plaintiffs did not raise timely objections to Commerce's failure to adjust the dumping margin to reflect fluctuations in the interest rate and exchange rate of the French franc.

BACKGROUND

Plaintiffs are the sole French producer and importer of ASM, a sodium silicate compound sold in a variety of grades for use in waste paper de-inking, cleaning processes, bleach stabilization or floatation, and clay processing. R. 12 at 4.

Commerce found that French ASM was being sold in the United States at a less than fair value sales margin of 60 percent, and the United States International Trade Commission found material injury to a domestic industry by reason of the dumped imports. Anhydrous Sodium Metasilicate From France; Antidumping Duty Order, 46 Fed.Reg. 1667 (Jan. 7, 1981). Over the course of the first four administrative reviews of the antidumping duty order, Commerce found only two shipments of French ASM between November 1, 1980 and December 31, 1983, which it determined were not sold at less than fair value. Anhydrous Sodium Metasilicate From France; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed.Reg. 43,733 (Oct. 31, 1984); Anhydrous Sodium Metasilicate From France; Final Results of Antidumping Duty Administrative Review, 53 Fed.Reg. 4195 (Feb. 12, 1988). In the administrative review covering 1984 (1984 review), Commerce applied, as the best information otherwise available, the 60 percent dumping margin from the original investigation in 1980, after rejecting plaintiffs' submissions as inadequate and for being in a format other than that requested. The review covering 1985 is the subject of a separate action.

DISCUSSION

Plaintiffs assert Commerce's final determination in the 1984 review was contrary to law because (1) Commerce abused its discretion in rejecting plaintiffs' submission in toto and applying the best information otherwise available rule as a punitive measure, (2) Commerce lacks authority to require that respondents submit information on computer tape, (3) assuming plaintiff's submission was deficient, Commerce should have used the data from the most recent administrative reviews as the best information otherwise available rather than only the 1980 data, and (4) Commerce did not adjust the dumping margin to reflect fluctuations in the exchange rate of the French franc and interest rates between 1980 and 1984.

In reviewing challenges to administrative reviews, the Court is to sustain Commerce's determination unless it is 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) (1982); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984); Fuji Elec. Co. v. United States, 12 CIT ___, 689 F.Supp. 1217, 1221 (1988).

A. BEST INFORMATION OTHERWISE AVAILABLE

In reaching its determination, Commerce rejected plaintiffs' entire submission and used the dumping margin from the original antidumping investigation as the best information otherwise available because plaintiffs' submission was not in the required format and plaintiffs did not provide certain requested data.

Plaintiffs contend that they cooperated fully with Commerce and submitted complete data sufficient to cover every element necessary for a less than fair value calculation. Accordingly, plaintiffs argue Commerce improperly rejected their submission and applied the best information rule against them.

In making its determination in an antidumping investigation, Commerce is directed to use the "best information otherwise available" "whenever a party or any other person refuses or is unable to produce information requested in a timely manner and in the form required, or otherwise significantly impedes an investigation...." 19 U.S.C. § 1677e(b) (1982). See Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1560 (Fed.Cir.1984); U.H.F.C. Co. v. United States, 13 CIT ___, 706 F.Supp. 914, 922 (1989).

The first reason Commerce stated for rejecting plaintiffs' submissions is that transaction data were not on computer tape as Commerce had requested several times. Plaintiffs counter that because Commerce's regulations mention only written submissions, Commerce may not require respondents to submit their data on computer tape.

19 C.F.R. § 353.46(a)(2) (1988) covers submissions in Commerce investigations. While the regulation details procedures to be utilized only as to document submissions, it does not limit submissions to this form alone. Therefore, there is no conflict between the regulation and the additional requirement.

Commerce changed its submission format policy to facilitate the complex analysis necessary to make a determination. The court has already recognized that the complexity of antidumping investigations may necessitate use of computer tapes. See, e.g., American Brass v. United States, 12 CIT ___, 699 F.Supp. 934, 937 (1988); Timken Co. v. United States, 11 CIT ___, 659 F.Supp. 239, 242 (1987). Considering the complexity of antidumping investigations and administrative reviews of antidumping duty orders, it is not unreasonable for Commerce to insist that those respondents who maintain a computerized data base for their business data submit the information requested in a form that would facilitate Commerce's investigation, unless it would be an unreasonable burden to produce the information on computer tape.

Commerce gave plaintiffs instructions on how to (a) submit computer tapes in a form compatible with Commerce's computer system, and (b) provide documentation of the contents and location of data on the tapes. R. 4, Appendix III. Commerce informed plaintiffs that failure to provide the information as requested would subject them to the best information otherwise available rule. R. 4, General Instructions, at 1. Plaintiffs admit that they maintain the information sought in a computerized data base. Rather than submit computer tapes or request an exemption from the requirement, plaintiffs stated only that their computer software "does not permit retrieval in a form or manner suitable for antidumping margin analyses." R. 15 at 4. Plaintiffs also admit that the data they submitted "might not have been in the most convenient to use format for purposes of an antidumping analysis...." Plaintiffs' Brief in Support of Motion for Summary Judgment, at 7.

Commerce also rejected plaintiffs' submission because (1) home market sales dates were not provided, (2) United States selling expenses were not adequately identified or quantified, (3) home-market selling expenses were not specific, and (4) documentation of plaintiffs' packing and inland freight costs was insufficient.

Plaintiffs argue that missing home-market sales dates is a "bogus issue" because Commerce could have chosen whatever operative date it wished as the date of sale. In this case, plaintiffs argue that home market sales dates are the same as the shipment dates stated in their submission. Plaintiffs' Brief in Support of Motion for Summary Judgment, at 6-7. The only reference in plaintiffs' submission pertaining to a home-market sale is a column entitled DATEXP, which is defined as the date of shipment. Conf. R. 3, Section B.

Commerce counters that determining the date of sale is not simply a matter of picking any date as plaintiffs suggest, but requires much more explanatory information than plaintiffs supplied. The date of sale is an important factor in an administrative review of an antidumping duty order because it allows Commerce to match the home-market sale with the United States sale in order to compare prices within the proper review period. There is no indication whether the sales contracts in question were entered into before or at the time of shipment. Commerce found that plaintiffs' submission does not provide any information to determine whether the date of shipment is the date on which the sale was actually made.

As justification for not providing more detailed information on sales dates in the 1984 review, plaintiffs cite a document contained in...