Globe Metallurgical, Inc. v. U.S.

350 F.Supp.2d 1148

GLOBE METALLURGICAL, INC. and Simcala, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Bratsk Aluminium Smelter and Rual Trade Limited, Defendant-Intervenors.

Slip Op. 04-123.

Court No. 03-00202.

United States Court of International Trade.

September 24, 2004.

COPYRIGHT MATERIAL OMITTED

Piper Rudnick LLP, (William D. Kramer and Clifford E. Stevens, Jr.), Washington, DC, for Globe Metallurgical, Inc. and Simcala, Inc., plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael Panzera); Jonathan J. Engler, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, defendant, of counsel.

Shearman & Sterling LLP, (Jeffrey M. Winton and Sam J. Yoon and Quentin M. Baird), Washington, DC, for Bratsk Aluminium Smelter and Rual Trade Limited, defendant-intervenors.

OPINION

TSOUCALAS, Senior Judge.

This consolidated action concerns the claims raised by plaintiffs, Globe Metallurgical, Inc. and SIMCALA, Inc. (collectively, "Plaintiffs"), and defendant-intervenors, Bratsk Aluminium Smelter and Rual Trade Limited (collectively, "Defendant-Intervenors"), who move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging the Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Notice of Final Determination of Sales at Less Than Fair Value for Silicon Metal From the Russian Federation, ("Final Determination"), 68 Fed.Reg. 6,885 (Feb. 11, 2003), as amended by Notice of Amended Final Determination of Sales at Less Than Fair Value for Silicon Metal From the Russian Federation, ("Amended Final Determination") 68 Fed.Reg. 12,037 (Mar. 13, 2003).

Plaintiffs challenge two aspects of the Final Determination. First, Plaintiffs argue that Commerce improperly excluded a surrogate value cost of recycled fines from the calculation of normal value ("NV") and ultimately understated NV and the dumping margin. Second, Plaintiffs contend that Commerce improperly rejected a non-aberrational Egyptian surrogate market economy price of imported wood charcoal and, therefore, violated past agency practice.

Defendant-Intervenors contend that 19 U.S.C. § 1677b (2000), regulations promulgated by Commerce, and caselaw do not require Commerce to base factor values on prices in a surrogate country that are different from the country under investigation. Defendant-Intervenors also contend that Commerce failed to use the best available information when determining not to use post nonmarket economy ("NME") Russian values for the period of investigation ("POI"). Defendant-Intervenors argue that Commerce improperly calculated NV by failing to use the post-NME Russian values in evaluating the reliability of potential surrogate values.

BACKGROUND

This case concerns the antidumping duty order on silicon metal from Russia for the POI covering July 1, 2001, through December 31, 2001. See Final Determination, 68 Fed.Reg. at 6,885. Commerce initiated the investigation on April 3, 2002. Notice of Initiation of Antidumping Duty Investigation for Silicon Metal From the Russian Federation, 67 Fed.Reg. 15,791 (Apr. 3, 2002). On April 30, 2002, Commerce issued a memorandum identifying the Philippines Egypt, Thailand, Columbia, and Tunisia as appropriate surrogate countries for Russia. See Pls.' App. Br. Supp. Mot. J. Upon Agency R. ("Globe's App.") at Ex. 7. On June 6, 2002, in a separate proceeding, Commerce determined to treat Russia as a market economy country effective April 1, 2002, three months after the end of the POI. See Globe Metallurgical, Inc. SIMCALA, Inc.'s Br. Opp'n Brastk's Mot. J. Upon Agency R. ("Globe's Opp'n Br.") at 5. On September 20, 2002, Commerce published its preliminary determination, finding that silicon metal from Russia was being sold at less-than-fair-value. Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination for Silicon Metal From the Russia Federation ("Preliminary Determination"), 67 Fed.Reg. 59,253 (Sept. 20, 2002). For its Preliminary Determination, Commerce selected Egypt as the primary surrogate country. See id. On February 11, 2003, Commerce published its final determination. See Final Determination, 68 Fed.Reg. at 6,885. Commerce subsequently published an amended final determination on March 13, 2003. See Amended Final Determination, 68 Fed.Reg. at 12,037.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (2000) and 28 U.S.C. § 1581(c) (2000).

STANDARD OF REVIEW

In reviewing a challenge to Commerce's final determination in an antidumping administrative review, the Court will uphold Commerce's determination 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) (2000).

I. Substantial Evidence Test

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence "is something less than the weight of the evidence, and 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, 16 L.Ed.2d 131 (1966) (citations omitted). Moreover, "the court may not substitute its judgment for that of the [agency] when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983) (quoting, in turn, Universal Camera, 340 U.S. at 488, 71 S.Ct. 456)).

II. Chevron Two-Step Analysis

To determine whether Commerce's interpretation and application of the antidumping statute is "in accordance with law," the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step, the Court reviews Commerce's construction of a statutory provision to determine whether "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ[s] the `traditional tools of statutory construction.'" Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed.Cir.1998) (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). "The first and foremost `tool' to be used is the statute's text, giving it its plain meaning. Because a statute's text is Congress' final expression of its intent, if the text answers the question, that is the end of the matter." Id. (citations omitted). Beyond the statute's text, the tools of statutory construction "include the statute's structure, canons of statutory construction, and legislative history." Id. (citations omitted); but see Floral Trade Council v. United States, 23 CIT 20, 22 n. 6, 41 F.Supp.2d 319, 323 n. 6 (1999) (noting that "not all rules of statutory construction rise to the level of a canon") (citation omitted).

If, after employing the first prong of Chevron, the Court determines that the statute is silent or ambiguous with respect to the specific issue, the question for the Court becomes whether Commerce's construction of the statute is permissible. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Essentially, this is an inquiry into the reasonableness of Commerce's interpretation. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996). Provided Commerce has acted rationally, the Court may not substitute its judgment for the agency's. See Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994) (holding that "a court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another"); see also IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed.Cir.1992). The "Court will sustain the determination if it is reasonable and supported by the record as a whole, including whatever fairly detracts from the substantiality of the evidence." Negev Phosphates, Ltd. v. United States, 12 CIT 1074, 1077, 699 F.Supp. 938, 942 (1988) (citations omitted). In determining whether Commerce's interpretation is reasonable, the Court considers the following non-exclusive list of factors: the express terms of the provisions at issue, the objectives of those provisions, and the objectives of the antidumping scheme as a whole. See Mitsubishi Heavy Indus. v. United States, 22 CIT 541, 545, 15 F.Supp.2d 807, 813 (1998).

BACKGROUND

I. Factual Background

During the Cold War, Commerce considered the Soviet Union an NME country, a status Russia inherited. On June 6, 2002, Commerce determined that Russia had shifted to a market economy and revoked Russia's NME status. See Br. Bratsk Aluminum Smelter & Rual Trade Ltd. Supp. R. 56.2 Mot. J. Agency R. ("Bratsk's Br.") at Ex. 1. Effective April 1, 2002, Russia was treated as a market economy country by Commerce.¹ See id. On March 7, 2002, however, two United States producers filed a petition alleging that imports of silicon metal from Russia were being sold in the United States at less-than-fair-value. Commerce began its investigation on April 3, 2002 and used its NME methodology during the investigation because the POI predated the effective date of Russia's new status. See ...