Magnesium Corp. of America v. US
| Decision Date | 27 August 1996 |
| Docket Number | Slip Op. 96-148. Court No. 95-06-00789. |
| Parties | MAGNESIUM CORPORATION OF AMERICA, et al., Plaintiffs, v. UNITED STATES, Defendant, and JSC Avisma Titanium-Magnesium Works, et al., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
COPYRIGHT MATERIAL OMITTED
Charles M. Darling, IV, William D. Kramer, Gregory D. Shorin, Clifford E. Stevens, Jr. (Baker & Botts, L.L.P.), Washington, DC, for plaintiffs.
Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director; Jeffrey M. Telep, Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; Robert J. Heilferty, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel, for defendant.
John D. Greenwald (Wilmer, Cutler & Pickering), Washington, DC, for defendant-intervenors Avisma Titanium-Magnesium Works and Solikamsk Magnesium Works.
Margaret R. Polito, George W. Thompson (Neville, Peterson & Williams), New York City, for defendant-intervenor Hunter Douglas Metals.
Frederick P. Waite, Denise Cheung (Popham, Haik, Schnobrich & Kaufman, Ltd.), Washington, DC, for defendant-intervenors Gerald Metals, Inc., Greenwich Metals, Inc., and Hochschild Partners.
This case is before the Court on a motion for judgment upon the agency record pursuant to USCIT R. 56.2. Plaintiffs, Magnesium Corporation of America, International Union of Operating Engineers, Local 564, and United Steelworkers of America, Local 8319 ("Plaintiffs") bring this action under section 516A of the Tariff Act of 1930 for review of the final affirmative determination of the International Trade Administration of the United States Department of Commerce ("Commerce") that imports of pure magnesium from Russia are sold at less than fair value ("LTFV"). Notice of Final Determinations of Sales at Less Than Fair Value: Pure Magnesium and Alloy Magnesium From the Russian Federation, 60 Fed.Reg. 16,440 (March 30, 1995) ("Final Determination").
On March 31, 1994, plaintiffs filed an antidumping petition alleging material injury by reason of LTFV imports of pure and alloy magnesium from China, Russia and Ukraine.1 Thereafter, Commerce initiated antidumping duty investigations. In June 1994 Commerce sent the antidumping questionnaire ("questionnaire") to Berezniki Titanium-Magnesium Works ("Avisma") and Solikamsk Magnesium Works ("Solikamsk") in Russia. Commerce subsequently requested information from 56 potential exporters of Russian magnesium.
On October 27, 1994, Commerce issued preliminary determination that imports of magnesium from Russia were being sold at less than fair value2 within the meaning of section 733(b) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673b(b) (1988).3
On March 30, 1995, Commerce published its final determination of LTFV sales for imports of magnesium from Russia.4 Commerce reaffirmed its conclusion in the preliminary determination that Russia is a nonmarket economy country ("NME"). Commerce determined that Avisma did not make direct exports of magnesium to the United States during the period of investigation ("POI"), and that Solikamsk did make direct exports and qualified for a separate rate, which Commerce set at zero. Certain reseller/exporters, i.e. AIOC Corporation ("AIOC"), Gerald Metals, Inc. ("Gerald Metals"), Greenwich Metals ("Greenwich"), Hunter Douglas Metals ("HDM"), Hochschild Partners ("Hochschild"), Interlink Metals and Chemicals, S.A. ("Interlink"), MG Metals ("MG"), and Razno-Alloys, Ltd. ("Razno"), received zero or de minimis dumping margins. Commerce also established a 100.25 percent "All Others" rate based on best information available ("BIA"), which applied to all exporters not assigned an individual rate. This rate would also apply to reseller/exporters which received an individual rate, if they were to sell magnesium produced by a Russian producer different from the producer from which they exported magnesium to the United States during the POI.
Commerce issued its Antidumping Duty Order, together with an Amended Final Determination on May 8, 1995.5
In the related proceeding before the International Trade Commission ("Commission"), the Commission determined that the domestic industry was materially injured by reason of imports of pure magnesium from China, Russia and Ukraine.6
This action presents the following issues:
1. Whether Commerce's use of Brazilian raw dolomite to establish a surrogate value for concentrated carnallite rather than for raw carnallite is supported by substantial evidence, and otherwise in accordance with law?
2. (a) Whether Commerce's calculation of the surrogate value for electricity used in the production of magnesium is supported by substantial evidence, and otherwise in accordance with law?
(b) Whether Commerce violated plaintiffs' due process rights when it relied on an outside expert's consultation which plaintiffs could not review?
3. Whether Commerce's determination to value factory overhead costs using a Brazilian silicomanganese producer's factory overhead as a surrogate value, and without including an adjustment reflecting the electrolytic cell rebuild costs incurred by petitioner MagCorp, is based on substantial evidence, and otherwise in accordance with law?
4. Whether Commerce properly used a Brazilian surrogate value to calculate the Russian producers' selling, general and administrative expenses ("SG & A")?
5. Whether Commerce's calculation of by-product credits to the Russian producers' cost of manufacturing magnesium without reducing the value of the by-product credits by the after separation processing costs is supported by substantial evidence, and otherwise in accordance with law?
6. Whether Commerce's reliance on sales information reported by Razno, Interlink and AIOC immediately prior to verification is consistent with existing Commerce precedent, supported by substantial evidence on the record, and otherwise in accordance with law?
7. Whether Commerce's exclusion of resellers' SG & A from the calculation of foreign market value ("FMV") is consistent with existing Commerce precedent, supported by substantial evidence, and otherwise in accordance with law?
8. (a) Whether Commerce's refusal to deduct from USP the export taxes paid by Russian producers to the Russian government is in accordance with law?
(b) Whether the exchange rate balancing requirement, to which Russian producers were subject, represents an implied export tax that should be deducted from USP?
The Court will uphold a Commission determination in an antidumping investigation unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law...." 19 U.S.C. § 1516a(b)(1)(B)(i) (1994). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951); Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). The court may not substitute its judgment for that of the agency. See Matsushita, 750 F.2d at 936. "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (citations omitted).
When Commerce's interpretation of the antidumping statute is challenged, this court applies the two step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984): Using the traditional tools of statutory construction the court ascertains whether congressional intent on the disputed issue is clear, and, if clear, the court applies the statute in the manner Congress intended, regardless of the agency's position.7 If the statute is ambiguous, the court, rather than interpreting the statute anew and rendering its own interpretation, must defer to an administrative agency's "permissible construction of the statute,"8 whether that construction manifests itself in the application of the statute, see, e.g., Daewoo Electronics Co., Ltd. v. International Union of Electronic Elec., Technical, Salaried and Mach. Workers, 6 F.3d 1511, 1516 (Fed.Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2672, 129 L.Ed.2d 808 (1994), or in the promulgation of a regulation, see, e.g., Smith Corona Group v. United States, 1 Fed.Cir. (T) 130, 136, 713 F.2d 1568, 1575 (1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). This deference is at its greatest level on issues involving Commerce's technical expertise in interpreting the antidumping statute it administers. Fujitsu General Ltd. v. United States, 88 F.3d 1034, 1039 (Fed.Cir.1996).
This case involves the review of Commerce's final determination in the investigation of exports of pure magnesium from the Russian Federation ("Russia") to the United States.9 Commerce determined that Russia is a nonmarket economy ("NME").10 The prices of the goods produced in an NME are subject to discrepancies which distort their value. Consequently, the antidumping statute provides that, in such cases, Commerce calculates the foreign market value ("FMV") of the merchandise "on the basis of the value of the factors of production utilized in producing the merchandise...." 19 U.S.C. § 1677b(c) (1988).11 Commerce utilizes, "to the extent possible, the prices or costs of factors of production in one or more market economy countries that are — (A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of comparable merchandise." 19 U.S.C. § 1677b(c)(4)....
To continue reading
Request your trial
-
Luoyang Bearing Factory v. U.S., Slip Op. 02-118.
...and to consider actual costs paid by the NME producer for each FOP. See Lasko, 43 F.3d at 1445-46; Magnesium Corp. of Am. v. United States, 20 CIT 1092, 1098, 938 F.Supp. 885, 892 (1996). The statute does not specify what constitutes "best available information," nor does it prescribe a spe......
-
Peer Bearing Co. v. U.S., SLIP OP. 01-125.
...actual costs paid by the NME producer for each FOP. See Lasko Metal Prods., 43 F.3d at 1445-46; Magnesium Corp. of Am. v. United States, 20 CIT 1092, 1098, 938 F.Supp. 885, 892 (1996). The statute does not specify what constitutes BIA, nor does it prescribe a specific method for valuing FOP......
-
Eregli Demir Ve Celik Fabrikalari T.A.S v. United States
...from the difference between normal value and CEP. See Arch Chemicals , 2011 WL 1449034, at *2 ; Magnesium Corp. of America v. United States , 20 CIT 1092, 1106, 938 F.Supp. 885, 899 (1996) ; Çolakoglu Mem. at 32 (distinguishing the consequences of Commerce's treatment of by-products and co-......
-
Coal. for Pres. of Amer Brake Drum & Rotor v. U.S., Slip Op. 99-20.
...data on the record).15 Therefore, "[i]n the end, the errors were corrected and the data were verified." Magnesium Corp. of America v. United States, 938 F.Supp. 885, 903 (CIT 1996). Plaintiff does not allege that Commerce incorrectly calculated the margins or implemented an arbitrary verifi......