899 F.2d 1185 (Fed. Cir. 1990), 89-1395, Rhone Poulenc, Inc. v. United States

Docket Nº:89-1395, 89-1402.
Citation:899 F.2d 1185
Party Name:RHONE POULENC, INC. and Rhone Poulenc Chimie De Base, S.A., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, PQ Corporation, Defendant-Appellee.
Case Date:March 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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899 F.2d 1185 (Fed. Cir. 1990)

RHONE POULENC, INC. and Rhone Poulenc Chimie De Base, S.A.,

Plaintiffs-Appellants,

v.

The UNITED STATES, Defendant-Appellee,

PQ Corporation, Defendant-Appellee.

Nos. 89-1395, 89-1402.

United States Court of Appeals, Federal Circuit

March 27, 1990

Rehearing Denied April 20, 1990.

Suggestion for Rehearing In Banc Declined May 2, 1990.

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James A. Geraghty, Donohue & Donohue, New York City, argued for plaintiffs-appellants.

M. Martha Ries, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With her on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin. and Pamela A. Green, Atty. Advisor, Office of the Chief Counsel for Import Admin., Dept. of Commerce, Washington, D.C., of counsel. Steven R. Sosnov, Sosnov & Associates, Norristown, Pa., argued for defendant-appellee.

Before RICH, NEWMAN and MICHEL, Circuit Judges.

RICH, Circuit Judge.

These consolidated appeals are from final judgments of the Court of International Trade, dismissing actions brought by importers of anhydrous sodium metasilicate (ASM) from France. 1 The importers challenged the final determinations of the Department of Commerce, International Trade Administration (ITA), in the 1984 and 1985 administrative reviews of the antidumping duty order covering French ASM. We affirm.

BACKGROUND 2

Appellants Rhone Poulenc Chimie de Base, S.A. and Rhone Poulenc, Inc. (collectively Rhone Poulenc) are the sole French producer and importer of ASM, a sodium silicate compound used in detergents, waste paper de-inking, and clay processing. In 1981, the ITA found that French ASM was being sold in the United States at a less-than-fair-value (LTFV) sales margin of 60 percent, and the United States International Trade Commission found material injury to the domestic industry by reason of the imports. Accordingly, the ITA issued an antidumping duty order covering French ASM. Anhydrous Sodium Metasilicate

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From France; Antidumping Duty Order, 46 Fed.Reg. 1667 (1981). The order required the United States Customs Service (Customs) to collect cash deposits of estimated antidumping duties in the amount of 60 percent ad valorem.

During the first and second administrative reviews of the antidumping order (covering November, 1980 through December, 1981), the ITA determined that there had been no imports of ASM from France. 47 Fed.Reg. 15620 (1982); 47 Fed.Reg. 44594 (1982). During this period, Rhone Poulenc requested a reduction of the 60 percent cash deposit rate determined in the original investigation, claiming that economic conditions had changed. The ITA concluded that it was without power to adjust the margin without an importation during the period of review, and suggested that making an actual importation was the proper way to establish that conditions had changed. See PQ Corp v. United States, 652 F.Supp. 724, 727 (CIT 1987).

Accordingly, Rhone Poulenc imported a single shipment of ASM during the following review period (1982). In the administrative review covering 1982 entries, the ITA determined that the sale was bona fide and at fair value. It ordered liquidation of the entry without any antidumping duty, and reduced the cash deposit rate to zero percent until publication of the final results of its next administrative review. 49 Fed.Reg. 43733 (1984). 3

In 1983, as in 1982, Rhone Poulenc made one ASM sale to the United States. In its administrative review covering 1983, the ITA determined that this sale was also at fair value. 53 Fed.Reg. 4195 (1988). 4

In 1984 and 1985, Rhone Poulenc made numerous imports of ASM into the United States. Pursuant to requests by PQ Corporation, a domestic producer of ASM, the ITA initiated its fifth and sixth administrative reviews of the antidumping duty order, covering 1984 and 1985 entries respectively. As before, the ITA sent Rhone Poulenc its standard antidumping duty questionnaires, requesting information on Rhone Poulenc's business organization and home market and United States sales.

To make a long story short, the present dispute was precipitated by Rhone Poulenc's responses to the ITA's 1984 and 1985 questionnaires. The ITA found the responses inadequate because they were submitted on paper rather than computer tape, and because sales dates, freight costs, and sales expenses were not stated in sufficient detail. 52 Fed.Reg. 28582 (1987) (1984 review); 52 Fed.Reg. 9320 (1987) (1985 review). In its preliminary results of the 1984 and 1985 administrative reviews, the ITA rejected Rhone Poulenc's questionnaire responses in their entirety, and stated that it was relying upon the "best information otherwise available" 5 to compute Rhone Poulenc's dumping margin, if any. As "best information" of Rhone Poulenc's current margins (1984 and 1985), the ITA stated its intention to revert to the 60 percent margin from the original LTFV investigation, which had been determined on the basis of sales made in 1980. Id.; 45 Fed.Reg. 77498 (1980). It then invited comments from interested parties.

Rhone Poulenc vigorously defended its questionnaire responses, insisting that they contained enough data to enable the ITA to ascertain every element necessary for a LTFV calculation, and were no less specific than those the ITA had accepted in the original LTFV investigation and earlier administrative reviews. It asserted that even if the responses were not 100% compliant, the ITA could not totally ignore them and

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resort to stale margins from the original LTFV investigation. Finally, it contended that the zero percent margins from the more recent administrative reviews were the "best information"...

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