|In the matter of:
GRAY PORTLAND CEMENT AND
CLINKER FROM MEXICO
||File no. USA-97-1904-02
Authority Selection of a BIA Rate
The final step in our analysis of whether the scope of the Investigating
Authoritys discretion under the "best information available" provision
includes the authority to apply as BIA a margin that was not in effect during the one-year
time period for administrative reviews, is to determine whether applying the 109.43
percent rate to Cemex under the circumstances of this case was unreasonable. The
Department has discretion to determine the BIA rate, but that discretion is not unlimited.
We must assess the reasonableness of the 109.43 percent rate under the Investigating
Authoritys 1st-tier BIA methodology in light of the purposes of the BIA provision
and the particular circumstances of the fourth administrative review.
purpose of the BIA rule is to
"facilitate the determination of dumping margins as accurately as possible within the
confines of extremely short statutory deadlines." 105
Since the Investigating Authority has no subpoena power, BIA
effectively induces respondents to comply with agency requests for data necessary to
conduct statutorily mandated administrative reviews. 106
Thus, the BIA rule induces respondents to provide timely,
complete and accurate information and prevents respondents from controlling the results of
administrative reviews by providing partial or delayed information. 107
For the purposes of this Panel review, Cemex
does not contest the Departments application of an adverse first-tier BIA margin. 108 Cemex contends, however, that application of a BIA rate
that came into effect only after the deadline for completion of the administrative review
is impermissible because it is contrary to the language and purpose of the entire
statutory scheme. The Investigating Authority argues that it is a reasonable exercise of
its discretionary authority to apply a BIA rate in effect on the date of its final results
in an annual administrative review, and that the application of the 109.43 percent rate in
this case was reasonably adverse to Cemex and was consistent with the purposes of
The Tariff Act of 1930, as amended, provides in relevant part as
"If . . . an interested party . . .
withholds information that has been requested by the administering authority . . . , fails
to provide such information by the deadlines for submission of the information or in the
form and manner requested . . . ,[or] significantly impedes a proceeding . . . the
administering authority . . . shall . . . use the facts otherwise available in reaching
the applicable determination under this title." 109
Applying the first step of the Chevron
analysis to §1677(e), it is apparent that neither the plain language of the statute nor
relevant legislative history reveal a clear Congressional direction regarding the
selection or application of "best information available". 110
The language of the statute evinces a clear Congressional intent that the Investigating
Authority use BIA with respect to a respondent who withholds requested information, or
does not supply information in a timely manner, or in the form required, or otherwise
impedes the proceeding. However, the statutory language is silent regarding the issue in
question in this panel review, whether the Investigating Authority can use as BIA a margin
that came into effect after the one-year period for completionof the administrative
review. Because the statute does not speak directly to the issue of temporal restrictions
on the Investigating Authoritys selection of BIA rates, this Panels review of
the Investigating Authoritys interpretation of §1677(e) is guided by Chevrons
second prong. Therefore this Panel must accord considerable deference to the Investigating
Authoritys interpretation of its statutory authority to select and apply a BIA rate
pursuant to §1677(e).
Our conclusion that the statutory language of §1677(e) indicates no
clear Congressional direction, and that Chevron thus commands this Panel to defer
to reasonable Investigating Authority interpretations of the BIA provision, is supported
by ample judicial authority. By not directly addressing what
constitutes best information available, Congress "explicitly left a gap for the
agency to fill." 111 Reviewing
courts have repeatedly recognized that the Investigating Authority has broad discretion in
executing the antidumping law. 112 Courts
recognize that enforcing the Tariff Act is a difficult task given the intricate framework
of the Act, the numbers of factors involved, the difficulty of quantification of those
factors, and the repercussions on foreign policy.113
Nevertheless, the Panel notes that the Investigating Authoritys
discretion under the antidumping statute, while broad, is not completely unfettered. While use of BIA is an informal club, 114 it cannot be wielded arbitrarily. 115
Accordingly, courts have at times constrained the Departments resort to BIA. For example, the Department cannot invoke its BIA authority by
making repeated requests for information which a party has already submitted until the
party becomes frustrated and refuses to comply, or characterize a failure to list sales as
a refusal to answer if in fact there were no sales. 116 Moreover, the Investigating Authority may not continue to use an
antidumping duty rate that has been vacated during judicial review as erroneous. 117 The question to percent margin lies beyond the
Investigating Authoritys discretion under Chevron, and therefore is not in
accordance with the law.
Cemex argues that applying the 109.43 percent in the fourth
administrative review is unreasonable because it had no notice of Investigating Authority
policy to apply a BIA margin that was not in effect during the 12-month period for
completion of administrative reviews. In its brief, Cemex asserted that the Investigating
Authority could cite no case where it applied as BIA a margin that was not in effect
during the period for completion of administrative reviews. At oral argument, counsel for
Southern Tier seemed to state that the BIA rate applied in the final results of the third
administrative review came into existence after the 12-month period. The
third review was initiated on September 30, 1993 118
therefore the 12-month period for completing the administrative review elapsed on
September 30, 1994. In the final results of the third review,
issued well after the 12-month period on May 19, 1995, the Investigating Authority applied
a BIA margin of 61.85 percent. 119 This
61.85 percent BIA rate was Cemexs own margin determined pursuant to the final remand
in the original investigation, and approved by the CIT on September 24, 1994. 120 Thus the 61.85 percent BIA
rate, applied in the final results of the third review, had been judicially approved
before completion of the 12-month period for the administrative review. 121
Neither the Investigating Authority nor Southern Tier has provided this Panel with a
precedent for applying a BIA rate in the final results of an administrative review that
was not in effect during the 12-month period.
However, we are cognizant that the 109.43 percent BIA rate is
respondents own margin from a previous review, and we consider this relevant to the
reasonableness of applying the 109.43 percent margin to Cemex in the circumstances of the
fourth administrative review. As the Investigating Authority
notes, this number is based on information provided by Cemex itself during the second
review, and was upheld by the CAFC after litigation in which Cemex participated
In holding that the Departments two-tier
methodology "is a reasonable and permissible exercise of the [Departments]
statutory authority to use best information available when a respondent refuses or is
unable to provide requested information," the CAFC cited with approval the "
common sense inference that the highest prior margins are the most indicative
of current market conditions." 123 Selection of the highest prior margin as BIA thus "avoids
rewarding the uncooperative and recalcitrant party for its failure to supply requested
information." 124 Similarly,in the present case,
the Department may rationally regard the selection of the 109.43 percent BIA rate as
"most indicative of current market conditions" and therefore as reasonably
calculated to achieve the purposes of §1677(e).
The Participants disagree whether applying the 109.43 percent margin to
Cemex in this review furthers the statutory purpose of inducing cooperation and preventing
respondents from manipulating the review process. Cemex contends
that the 109.43 percent margin was punitive because Cemex did eventually proffer the
requested information in the fourth administrative review, and thus resort to BIA was
unnecessary. 125 Yet Cemex conceded in its brief and
before this Panel that it does not contest the Departments application of 1st-tier
uncooperative BIA in the fourth review.
The only basis for holding that the Investigating Authority exceeded its
authority under the BIA statute would require a showing that use of the 109.43 percent
margin was an unreasonable or otherwise unsupportable exercise of the Investigating
Authoritys discretion. No such showing has been made.
Our colleagues dissenting opinion suggests that the
Departments selection of the 109.43 percent margin was arbitrary and unreasonable,
given that that number did not become available until long after the 12 month period for
reviews had passed. The majority disagree. If, as this opinion demonstrates, the
Investigating Authority faces no legal obstacle in taking more than 12 months to complete
an administrative review, and cannot be penalized for doing so, the Investigating
Authority has the discretion in seeking the highest available first tier BIA
to use the highest BIA approved in any prior review within the extended period, in this
case, 109.43 percent. There is here no question of retroactivity. The 109.43 percent
applied in the Departments final results in this fourth Administrative Review cannot
be characterized as "retroactive" for two reasons: First, the 109.43 percent was
derived from a prior review (the second Administrative Review), and, second, final
judicial approval of the 109.43 percent in the second Administrative Review took place
prior to the time at which the Department concluded the fourth Administrative Review.
As discussed above, the standard of review applicable in panel review of
agency determinations in the United States requires this Panel to afford the Investigating
Authority great deference in interpreting the antidumping laws. Considering that the
109.43 percent margin applied in the final results was calculated from data supplied by
Cemex in a prior review, we believe that selection of this margin is neither arbitrary nor
irrational and was within the Departments discretion.
For the reasons set forth in this opinion, the final results of the
fourth administrative review of the antidumping order in Gray Portland Cement and Clinker
from Mexico are affirmed.
Decision Issued on December 4, 1998.
Executed in the original:
David A. Gantz, Chairman
Lewis H. Goldfarb
Daniel G. Partan
Jose Alejandro Romero Carreto
Continue to the DECISION OF VICTOR CARLOS
Aerospace Co. v. U.S., 996 F.2d 1185, 1191 (Fed. Cir. 1993).
quoting Olympic Adhesives, Inc. v. United States, 899 F.2d 1565, 1571 (Fed. Cir.
Rhone-Poulenc, Inc. v. United States, 710 F.Supp 341, 347 (Ct. Intl Trade
1989)(stating that the purpose of using best information available is to elicit the
fullest cooperation from recalcitrant respondents).
108 Cemex brief at
110 Other than a
statement that Congress intended the Investigating Authority to use the most up-to-date
information available, the House and Senate Reports accompanying the Trade Agreements Act
of 1979 are silent on what constitutes BIA. See H.R. Rep. No. 317, 96th Cong., 1st Sess.
77 (1979); S. Rep. No. 249, 96th Cong., 1st Sess. (1979).
Aerospace Co. v. United States, 996 F.2d 1185, 1911 (Fed. Cir. 1993), quoting Chevron,
467 U.S. at 834-44.
Electronics Co., Ltd. v. International Union, 6 F.3d 1511, 1516 (Fed. Cir. 1993)
(recognizing the ITA as the "master" of antidumping law worthy of considerable
deference); American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed. Cir.
1986) (deferring to ITAs interpretation of statutory "reasonable
indication" standard as entailing more than "mere possibility" as
permissible in light of language and statutory intent).
Group, Consumer Products Div., SCM Corp. v. United States, 713 F.2d 1568, 1571 (Fed.
Atlantic Sugar, 744 F.2d 1556, 1560 (Fed. Cir. 1984).
115 See Olympic
Adhesive, Inc. v. United States, 899 F.2d 1565, 1572 (Fed. Cir.1990).
Supply Co. v. United States, 113 F.3d 1220, 1224 (Fed. Cir. 1997); Sigma Corp. v.
United States, 117 F.3d 1401, 1410 (Fed. Cir. 1997) (rejecting the Departments
use of an invalidated BIA).
118 58 Fed. Reg.
50153 (Sept. 30, 1993).
119 60 Fed. Reg.
26865 (May 19, 1995).
120 Ad Hoc
Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 18 CIT
917 (1994), 1994 WL 534945, affd 68 F.3d 487 (1995).
121 Counsel for
Southern Tier, in discussing the third review, stated that it was a precedent "where
Commerce changed the rate from the preliminary to the final and after the one-year point
had passed." OT at 84. For purposes of determining whether Cemex was on notice of
this practice, however, changing the rate after the one-year period to a number that had
been judicially approved within the one-year period is not the same as changing the rate
to a number that was still in litigation and had not been judicially approved.
Authority brief at 28-29.
Signal, 996 F.2d at 1192, quoting Rhone Poulenc, 889 F.2d at 1190.
Signal at 1192.
communicated to the Investigating Authority on February 8, 1996 that it was ready to
submit the requested information regarding Type I. In a letter dated February 16, 1996,
the Investigating Authority responded that the administrative record was closed and no
further factual information would be accepted.