795 F.Supp. 417 (CIT. 1992), 91-05-00389, Shikoku Chemicals Corp. v. United States

Docket Nº:Court No. 91-05-00389.
Citation:795 F.Supp. 417
Party Name:SHIKOKU CHEMICALS CORPORATION, Mitsubishi Corporation, and Mitsubishi International Corporation, Plaintiffs, v. The UNITED STATES, Defendant.
Case Date:May 18, 1992
Court:Court of International Trade
 
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795 F.Supp. 417 (CIT. 1992)

SHIKOKU CHEMICALS CORPORATION, Mitsubishi Corporation, and Mitsubishi International Corporation, Plaintiffs,

v.

The UNITED STATES, Defendant.

Court No. 91-05-00389.

United States Court of International Trade.

May 18, 1992.

Weil, Gotshal & Manges, A. Paul Victor, Douglas A. Nave and David W. Oliver, New York City, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (Vanessa P. Sciarra, Jeffrey C. Lowe, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel), for defendant.

OPINION

RESTANI, Judge:

The plaintiffs in this action, Shikoku Chemicals Corporation ("Shikoku"), Mitsubishi Corporation, and Mitsubishi International Corporation, 1 challenge the final results of the Department of Commerce ("Commerce") in the antidumping administrative reviews for cyanuric acid and its chlorinated derivatives from Japan as set forth in Cyanuric Acid and its Chlorinated Derivatives from Japan, 56 Fed.Reg. 19,338 (Dep't Comm. Apr. 26, 1991) ("Final Det."). This determination covered cyanuric acid and its chlorinated derivatives, dichloro isocyanurates ("DCA") and trichloro isocyanuric acid ("TCA"). 2 Plaintiffs are not appealing Commerce's determination regarding cyanuric acid; for reasons which will explained infra, the only merchandise involved in the present appeal is DCA.

Background

On February 29, 1984, Commerce published a notice of final determination in the Federal Register that cyanuric acid, DCA and TCA from Japan were being sold at

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less than fair value in the United States. Cyanuric Acid and its Chlorinated Derivatives from Japan Used in the Swimming Pool Trade, 49 Fed.Reg. 7,424 (Dep't Comm.1984). An antidumping duty order covering the subject merchandise was published on April 27, 1984. Cyanuric Acid and its Chlorinated Derivatives from Japan Used in the Swimming Pool Trade, 49 Fed.Reg. 18,148 (Dep't Comm.1984).

Over a period of almost five years, Commerce conducted four administrative reviews of cyanuric acid, DCA and TCA. 3 In the determination at issue in this appeal, Commerce published the results of its fifth and sixth administrative reviews. Final Det. at 19,338.

Although Commerce established a margin of .66 percent for plaintiffs' sales of TCA in the first administrative review, no dumping margins above a de minimis level were found in the second, third and fourth administrative reviews. After finding a de minimis dumping margin in the fifth and sixth administrative reviews, Commerce revoked the antidumping duty order covering TCA. Final Det. at 19,342. Plaintiffs do not challenge Commerce's determination regarding TCA.

For plaintiffs' sales of DCA, Commerce established a dumping margin of 9.66 percent in the first administrative review. The dumping margin was found to be de minimis in the second administrative review. In the third and fourth administrative reviews, Commerce assigned DCA a margin of zero. In the fifth and sixth administrative reviews, however, Commerce established a dumping margin of .81 and .91 percent, respectively, for plaintiffs' DCA sales. Accordingly, Commerce refused plaintiffs' request to revoke the antidumping duty order covering DCA. 4

Plaintiffs appeal Commerce's decision, and request the court to issue a judgment on the administrative record. Briefs were submitted by the parties, and oral argument was held on February 27, 1992. At oral argument, the court requested the parties file supplemental briefs regarding Commerce's calculation of plaintiffs' adjustment for home market packing expenses.

Issues

In the original LTFV investigation and the first four administrative reviews, Commerce permitted Shikoku to adjust home market prices to reflect charges paid by Shikoku to its subcontractor for repacking DCA from exportable granular merchandise to a form suitable for home market sale. Commerce calculated the amount of the home market price adjustment by dividing Shikoku's total expenses for repackaging by the total volume of repackaged granular and tablet merchandise. In the final determination, however, Commerce altered its method of allocation by excluding from the repacking costs identifiable costs of making tablets. Under this approach, the home market repacking expenses were diminished, and a more than de minimis margin resulted.

Plaintiffs argue that they have been unfairly penalized because Commerce has applied a new methodology retroactively in spite of Shikoku's reliance over the years on the old formula. In addition, plaintiffs argue the new method is rife with inconsistencies and errors.

In response, Commerce argues that the method of calculation employed in the final determination is reasonable because the foreign market value adjustment should reflect

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only the percentage of repackaging expenses that is directly attributable to granular merchandise since this is the only form sold in the United States. The crux of Commerce's argument is that the revised calculation is in fact more accurate...

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