Manifattura Emmepi SpA v. US

• Decision Date: 20 July 1992
• Docket Number: Court No. 90-06-00275.
• Parties: MANIFATTURA EMMEPI S.p.A., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

799 F. Supp. 110

16 CIT 619

MANIFATTURA EMMEPI S.p.A., Plaintiff, v. UNITED STATES, Defendant.

Court No. 90-06-00275.

United States Court of International Trade.

July 20, 1992.

Siegel, Mandell & Davidson, P.C., Brian S. Goldstein and David Newman, Washington, D.C., for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, U.S. Dept. of Justice, Civ. Div., Velta A. Melnbrencis, and Counsel for Import Admin., U.S. Dept. of Commerce, D. Michael Kaye, Washington, D.C., of counsel, for defendant.

OPINION & ORDER

AQUILINO, Judge:

In this action, the plaintiff has interposed a motion for judgment upon the record compiled by the International Trade Administration, U.S. Department of Commerce ("ITA") sub nom. Final Results of Antidumping Duty Administrative Review; Spun Acrylic Yarn From Italy, 55 Fed. Reg. 18,925 (May 7, 1990), accompanied by a form of order postulating, among other things, that the determination "is unlawful and of no effect". The gravamen of the motion is that it was not in accordance with law for the ITA to have refused to accept questionnaire responses and to have relied in lieu thereof on a ten-year-old cash deposit rate as best information otherwise available.

Jurisdiction of the court is pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c).

I

Shortly after publication of the Treasury Department's Spun Acrylic Yarn From Italy; Antidumping Withholding of Appraisement Notice and Determination of Sales at Less Than Fair Value, 44 Fed. Reg. 75,547 (Dec. 20, 1979), the Trade Agreements Act of 1979 transferred responsibility for antidumping and countervailing duties to the ITA, which published an antidumping-duty order based on the foregoing determination at 45 Fed.Reg. 23,684 (April 8, 1980).

The plaintiff was not party to Treasury's investigation. It began exporting spun acrylic yarn from Italy to the United States in 1986, at which time the cash-deposit rate for exporters not involved in prior proceedings was 4.92 percent. In May 1988, the ITA published notice of initiation of an administrative review of its order for the period April 1, 1987 to March 31, 1988. In a letter to the agency on June 24, 1988, Emmepi acknowledged receipt of a questionnaire and requested an extension of time to respond until 15 days after the results of the ITA's review of the preceding period April 1986-March 1987 were made available. In a follow-up letter, counsel indicated that the requested extension would make responses due on August 15th. See Record Document ("R.Doc") 8. Another letter requested 15 additional days, or until August 30th. See R.Doc 15. On August 24, 1988, the ITA granted a 15-day extension but warned that "any undue delays or lack of response would result in its proceeding with appraisements based on the best information available." R.Doc 17. No date was specified then by the agency, although in the final results at bar the ITA states it to have been September 8, 1988. See 55 Fed.Reg. at 18,926.

The claim now is that the agency did not receive responses to its questionnaire for the 1987-88 review period or any other communication from Emmepi during the next seven months. Defendant's Memorandum, pp. 5-6. On its part, the plaintiff contends that on September 1, 1988 it requested another extension to file responses. See Plaintiff's Memorandum, p. 7. The plaintiff also refers to letters dated September 30th and March 20, 1989 stating that responses had not yet been filed because it was still awaiting the results of the 1986-87 review. See R.Doc 84. The September 30 letter claimed that Emmepi had been advised that those results would be available within a few months, but 14 had gone by and the company still had not learned of them. The ITA was requested to

(1) expedite the dissemination of the results of the review, (2) exclude Manifattura Emmepi, S.p.A. pursuant to 19 C.F.R. 353.45 from any determination, (3) revoke any and all Antidumping Duty Findings or Orders with respect to it pursuant to 19 C.F.R. 353.54(b) and (4) cease to include it in any further administrative reviews.

Id. The March 1989 follow-up letter again requested the results of the 1986-87 review and represented that "millions of dollars of business were being lost ... as a result of ... inability to quote prices as to whether additional duty would be payable and, if levied, at what rate." The letter requested a meeting to discuss the matter.

One took place on April 5, 1989 at which questionnaire responses for 1987-88 were finally submitted. The ITA rejected them as untimely. On April 25, 1989, the agency published Spun Acrylic Yarn From Italy: Preliminary Results of Antidumping Duty Administrative Review for 1986-87, 54 Fed.Reg. 17,803, and on October 13, 1989 the final results for that period were published, confirming the zero percent margin for Emmepi in the preliminary determination.¹

On December 29, 1989, the preliminary determination for the subsequent review periods, April 1, 1987 to March 31, 1988 and April 1, 1988 to March 31, 1989², was published in which Emmepi's dumping margin was set at 48.05 percent ad valorem based on best information available. The company requested that the ITA reconsider and modify the determination based on its questionnaire responses. See R.Doc 84. The agency's response was publication on May 7, 1990 of the final results now at issue. They confirmed the 48.05% margin for Emmepi as well as for two other firms, one which no longer existed and one which had supplied inadequate questionnaire responses. The ITA confirmed that it used the cash deposit rate published in 1980 as best information available and stated that it had not considered Emmepi's responses to the questionnaire because they were untimely, notwithstanding grant of an extension.

The plaintiff now argues that the ITA's equation of the 1980 rate with best information available was "completely unjustifiable and unreasonable", deviated from agency practice, violated the Administrative Procedure Act and injured plaintiff's right to due process. In addition, the plaintiff claims the ITA neglected to consider whether its merchandise should be excluded from the scope of the antidumping-duty order.

II

The defendant counters that the plaintiff did not exhaust administrative remedies on these issues and that this court therefore should not address them. Defendant's Memorandum, pp. 12-14. Among other points, the plaintiff replies that the defendant has waived any right to press this position, which has not been pleaded as an affirmative defense.

CIT Rule 8(d), which is analogous to Rule 8(c) of the Federal Rules of Civil Procedure, requires a party to plead its affirmative defenses. The Court of International Trade has held that failure to do so results in waiver of such defenses and their exclusion from an action. See, e.g., United States v. Atkinson, 6 CIT 257, 259, 575 F.Supp. 791, 793 (1983), and cases cited therein. See also Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir.1988); Little v. United States, 794 F.2d 484, 487 n. 2 (9th Cir.1986) ("exhaustion of administrative remedies ... must be pleaded in the trial court"). In fact, in this action the defendant had more than one opportunity to so plead; plaintiff's complaint was amended twice, and the defendant interposed two answers. Since neither includes as an affirmative defense the point sought to be pressed now, it cannot foreclose consideration of plaintiff's motion.³

III

With regard to the issue of best information available, the record shows that the agency was lax in disposing of the requests for extensions of time, but this did not amount to license not to respond to the questionnaire or to justification of submission some seven months after the deadline. When information requested for an administrative review is not forthcoming, the government will rely on best information otherwise available. The Trade Agreements Act states that, in

making their determinations under this subtitle, the administering authority and the Commission shall, 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, use the best information otherwise available.

19 U.S.C. § 1677e(c). Section 1677f(e) provides that data

shall be submitted to the administering authority or the Commission during the course of a proceeding on a timely basis and shall be subject to comment by other parties within such reasonable time as the administering authority or the Commission shall provide. If information is submitted without an adequate opportunity for other parties to comment thereon, the administering authority or the Commission may return the information to the party submitting it and not consider it.

This statute has been enforced by the ITA and upheld in court. See, e.g., Zenith Electronics Corp. v. United States, 14 CIT ___, ___, 755 F.Supp. 397, 414 (1990); Seattle Marine Fishing Supply Co. v. United States, 12 CIT 60, 68-71, 679 F.Supp. 1119, 1126-28 (1988), aff'd, 883 F.2d 1027 (Fed.Cir.1989); Ansaldo Componenti, S.p.A. v. United States, 10 CIT 28, 36-37, 628 F.Supp. 198, 204-05 (1986), citing Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556 (Fed.Cir.1984), and UST, Inc. v. United States, 9 CIT 352 (1985). On the other hand, the agency does have discretion to accept late submissions, but it is not required to do so, and deadlines generally have been sustained. Cf. Brother Industries, Ltd. v. United States, 15 CIT ___, ___, 771 F.Supp. 374, 383-84 (1991).

If the record indicated lack of adequate warning or of sufficient time in which to respond, resort to best information available would, at least arguably, have been inappropriate. See, e.g., Daewoo Electronics Co. v. United States, 13 CIT 253, 266-67, 712 F.Supp. 931, 944-45 (1989). However, it is clear that, in the absence of extension(s) from...