Slip Op. 07-79
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
______________________________
:
ELKEM METALS CO. and :
GLOBE METALLURGICAL, INC., :
:
Plaintiffs, :
: Court No. 02-00232
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
RIMA INDUSTRIAL S/A, :
:
Defendant-Int. :
______________________________:
[Final Results of Redetermination Affirmed. Action dismissed.]
DLA Piper US LLP (William D. Kramer, Martin Schaefermeier)for
Plaintiffs Elkem Metals Co., and Globe Metallurgical, Inc.
Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Reginald T. Blades, Jr.); Robert
LaFrankie, Office of Chief Counsel for Import Administration,
United States Department of Commerce, of counsel, for defendant.
Greenberg Traurig, LLP (Philippe M. Bruno, Rosa S. Jeong) for
Defendant-Intervenor, Rima Industrial S/A.
May 18, 2007
MEMORANDUM OPINION & ORDER
In Elkem Metals Co., v. United States, this Court ordered the
United States Department of Commerce to recalculate the dumping
Court No. 02-00232 Page 2
margin of Rima Industrial S/A (“Rima”)in light of any adjustments
made in the Final Results of Redetermination Pursuant to Court
Remand, Elkem Metals Co. v. United States, (Dep’t of Commerce Mar.
16, 2005), but applying the methodology promulgated in Silicon Metals
from Brazil, 63 Fed. Reg. 42,001 (Dep’t Commerce Aug. 6, 1998). See
Elkem Metals Co. v. United States, 30 CIT __, Slip Op. 06-189 (Dec.
22, 2006) (not published in the Federal Supplement) (“Elkem III”).
Therein, the Court explained that Commerce’s policy interpreting 19
U.S.C. § 1677b(e) (2000) and calculating constructed value (“CV”)
directs that value added tax (“VAT”) may be included as a “cost” only
to the extent that the exporter/producer does not fully use the VAT
credits generated by export sales. Id. (citing 63 Fed. Reg. at
42,004). The Court found that Commerce’s determination that VAT paid
by Rima should be excluded from constructed value is based on a
permissible construction of § 1677b(e). Id. As a result, and due to
the “deferential lens of Chevron,” the Court did not upset Commerce’s
determination that the Brazilian tax system can have the effect of
offsetting VAT via a VAT credit, and that during the period of
review, Rima, a producer, fully offset its VAT costs by using its VAT
credits. Id. Accordingly, this Court remanded the matter to
Commerce to allow it to recalculate Rima’s dumping margin, but with
instructions to limit its adjustments to circumstances where Rima
fully offset its VAT costs using its VAT credits. Id.
Court No. 02-00232 Page 3
Pursuant to the Court’s order, on March 14, 2007 Commerce filed
its final remand results. See Final Results of Redetermination
Pursuant to Court Remand (Dep’t Commerce Mar. 14, 2007) (“Remand
Results”). Both the petitioners and Rima had the opportunity to, but
did not file comments to the Remand Results. As such, the Court
treats the remand results as uncontested. In its Remand Results
Commerce “recalculated Rima’s dumping margin in light of the
adjustment made in the Second Remand Redetermination but using the
methodology promulgated in the Final Results and applied in the First
Remand Redetermination.” See id. Specifically, in accordance with
this Court’s remand instructions Commerce “excluded certain VAT paid
by Rima from the calculation of CV . . . [and] limited its
adjustments to . . . where Rima fully offset its VAT costs using VAT
credits.” Id. Within these parameters, Commerce recalculated Rima’s
dumping margin for the period of July 1, 1999 to June 30, 2000. The
rate did not change from the rate announced in its February 12, 2002
final results of the ninth review. Id.
For foregoing reasons, the Court finds that Commerce complied
with its remand instructions. Commerce recalculated Rima’s dumping
margin pursuant to the remand instructions set forth in Elkem Metals
III. It excluded certain VAT paid by Rima in its calculation of CV
and limited its adjustments to the factual circumstances
Court No. 02-00232 Page 4
circumscribed by the remand order. Therefore, the Court affirms
Commerce’s Final Results of Redetermination Pursuant to Court Remand
and dismisses this action. Judgment shall be entered accordingly.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: May 18, 2007
New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
______________________________
:
ELKEM METALS CO. and :
GLOBE METALLURGICAL, INC., :
:
Plaintiffs, :
: Court No. 02-00232
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
RIMA INDUSTRIAL S/A, :
:
Defendant.-Int. :
______________________________:
JUDGMENT
Upon consideration of the United States Department of Commerce’s
Final Results of Redetermination Pursuant to Court Remand (Dep’t
Commerce Mar. 14, 2007) (“Remand Results”), all other papers filed
and proceedings herein, and Commerce having complied with the Court’s
remand instructions, it is hereby:
ORDERED that the Remand Results are affirmed; and it is further
ORDERED that this action is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: May 18, 2007
New York, New York