Slip Op. 07-63
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
ELKEM METALS COMPANY and :
GLOBE METALLURGICAL INC., :
:
Plaintiffs, :
:
v. : Court No. 03-00020
:
UNITED STATES :
:
Defendant, :
:
RIMA INDUSTRIAL S/A, COMPANHIA :
BRASILEIRA CARBURETO DE CALCIO :
and COMPANHIA FERROLIGAS MINAS :
GERAIS-MINASLIGAS, :
:
Defendant-Intervenors. :
________________________________________:
MEMORANDUM OPINION & ORDER
May 3, 2007
Held: This action is stayed pending the final outcome of the
companion case Elkem Metals v. United States, Court No.
02-00232.
DLA Piper US LLP, (Clifford E. Stevens, Jr.; William D.
Kramer) for Plaintiffs Elkem Metals Company and Globe Metalurgical,
Inc.
Peter D. Keisler, Assistant Attorney General Civil Division,
United States Department of Justice; Jeanne E. Davidson, Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice; International Trade Section, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Michael D. Panzera); United States Department of Commerce,
Office of Chief Counsel for Import Administration (Marisa Beth
Goldstein), of counsel, for Defendant.
Court No. 03-00020 Page 2
Greenberg Traurig, LLP, (Phillipe M. Bruno) for Defendant-
Intervenors Rima Industrial S/A; Companhia Brasileira Carbuerto de
Calcio and Companhia Ferroligas Minas Gerais-Minsasligas.
Tsoucalas, Senior Judge: This matter is before the Court
upon Plaintiffs’ Elkem Metals Company and Globe Metallurgical Inc.,
(collectively “Plaintiffs”) motion for judgment upon the agency
record. Although styled as a Rule 56.2 motion, Plaintiffs’
memorandum in support thereof puts forth little argument advancing
its position regarding judgment on the agency record. See
generally Pl.s’ Br. Supp. Mot. J. Agency Rec. (“Pl.’s Br.”).
Instead, Plaintiffs devote the majority of their brief to
advocating the issuance of alternative declaratory judgments or a
stay of proceedings. See Pl.s’ Br. at 8–12. For the reasons set
forth below, the Court finds that a stay is warranted.
JURISDICTION
Jurisdiction is had pursuant to 28 U.S.C. § 1581(c) (2000) and
19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (B)(iii) (2000).
STATUTORY FRAMEWORK
In order to properly understand the relevance of the
procedural history and factual background, the Court first sets
forth the pertinent statutory framework. Title 19, section 1675 of
the United States Code (“the Statute”) provides that Commerce “may
revoke, in whole or in part,” an antidumping duty order upon
Court No. 03-00020 Page 3
completion of either an administrative or “changed circumstances”
review. 19 U.S.C. § 1675(d).
While Congress has not specified the procedure that Commerce
must follow in revoking an order, Commerce, in its regulations, has
established such a procedure. See 19 C.F.R. § 351.222 (“the
Regulation”). The Regulation requires, inter alia, that a company
requesting revocation must submit: (1) a certification that the
company has sold the subject merchandise at not less than normal
value (“NV”) in the current review period and that the company will
not sell at less than NV in the future; (2) a certification that
the company sold the subject merchandise in commercial quantities
in each of the three years forming the basis of the revocation
request; and (3) an agreement to reinstatement of the order, as
long as any exporter or producer is subject to the order, if the
Secretary [of Commerce] concludes that the exporter or producer,
subsequent to the revocation, sold the subject merchandise at less
than NV. See 19 C.F.R. § 351.222(e)(1).
Upon receipt of a request for revocation, the Regulation
further instructs that Commerce consider the following in
determining whether to revoke the order: (1) whether the producer
or exporter requesting revocation has sold subject merchandise at
not less than NV for a period of at least three consecutive years;
(2) whether the continued application of the antidumping duty order
Court No. 03-00020 Page 4
is otherwise necessary to offset dumping; and (3) whether the
producer or exporter requesting revocation has agreed in writing to
the immediate reinstatement of the order, as long as any exporter
or producer remains subject to the order, if Commerce concludes
that the exporter or producer, subsequent to revocation, sold the
subject merchandise at less than NV. See § 351.222(b)(2).
Both subsections of the Regulation are relevant in that both
implicate a three-year requirement, i.e., § 351.222(e)(1) requires
a certification that the company sold the subject merchandise in
commercial quantities in each of the three years forming the basis
of the revocation request; and § 351.222(b)(2) requires that the
producer or exporter requesting revocation has sold subject
merchandise at not less than NV for a period of at least three
consecutive years (“three year period”). See generally § 351.222.
A determination by Commerce to revoke an antidumping duty order may
only be sustained if the company requesting revocation has
demonstrated three consecutive periods of review of sales at not
less than NV. Id. In other words, the term “consecutive” in the
Regulation controls, and if one of Commerce’s three determinations
in the underlying reviews is invalidated, Commerce’s revocation is
no longer in accordance with the Statute or Regulation.
Court No. 03-00020 Page 5
BACKGROUND
The administrative determination under review in the instant
matter is Silicon Metal from Brazil: Final Results of Antidumping
Duty Administrative Review and Revocation of Order in Part, 67 Fed.
Reg. 77,225 (Dec. 17, 2002) (“Revocation Determination”). This is
the tenth administrative review of silicon metal from Brazil
covering the period of review (“POR”) from July 1, 2000 through
June 30, 2001. Plaintiffs, however, do not contest the final
results in the administrative review for the 2000–2001 POR.
Instead, they contend that the Revocation Determination would not
be in accordance with law if Commerce’s determination under review
in a separate action, Elkem Metals v. United States, Court No. 02-
232 (“Elkem Metals 02-232") is reversed and remanded. This
companion case reviews Commerce’s determination for the 1999–2000
POR. Although not directly at issue in this case, the 1999-2000
POR at issue in Elkem Metals 02-232, is relevant to the extent that
in order to qualify for partial revocation of an order, the
producer or exporter requesting revocation must have sold the
subject merchandise at not less than NV for a period of at least
three consecutive years. See § 351.222(b)(2).
A. Elkem Metals 02-00232 (1999–2000 POR)
Elkem Metals 02-232 involves the POR which is the second year
in the necessary three year period. As such, if Commerce’s
Court No. 03-00020 Page 6
determination finding sales at not less than NV is found to be
invalid, the statutory and regulatory requirement of three
consecutive years may not be met.
Commerce issued its final results of the administrative review
on silicon metal from Brazil on February 12, 2002. See Final
Results of Antidumping Duty Administrative Review of Silicon Metal
from Brazil, 67 Fed. Reg. 6,488 (Feb. 12, 2002). Following a
series of motions, this Court found that “Commerce improperly
calculated CV [constructed value] by excluding the VAT paid by [the
producer/exporter] on inputs from CV.” Elkem Metals Co. v. United
States, 28 CIT __, __, 350 F. Supp. 2d 1270, 1273 (2004). The
Court of Appeals for the Federal Circuit (“CAFC”) disagreed,
however, and reversed and remanded the judgment of this Court. See
Elkem Metals Co. v. United States, 468 F.3d 795, 797 (Fed. Cir.
2006). Pursuant to the remand ordered and the CAFC’s mandate, this
Court ordered that this matter be again remanded to Commerce. See
Elkem Metals Co. v. United States, 30 CIT __, __, Slip Op. 06-189
at 4 (Dec. 22, 2006) (not reported in the Federal Supplement). In
accordance with the Court’s instructions, Commerce filed its Third
Remand Results on March 14, 2007. As per the Court’s order,
comments to the Remand Results are due on May 4, 2007 and replies
to such comments are due on May 19, 2007. See id.
Court No. 03-00020 Page 7
B. Elkem Metals 03-00020 (2000–20001 POR)
Elkem Metals 03-00020 involves the third POR necessary to meet
the regulatory three year period requirement. On December 17,
2002, Commerce determined that silicon metal from Brazil produced
by Defendant-Intervenor RIMA Industrial S/A (“RIMA”) was sold at
not less than NV during the 2000–2001 POR. Revocation
Determination, 67 Fed. Reg. at 77,226. Following this finding,
Commerce determined to revoke the AD order as to RIMA, explaining
that:
RIMA has demonstrated three consecutive years
of sales at not less than NV. Furthermore ...
RIMA’s aggregate sales to the United States
were made in commercial quantities during each
of those three years . . . (1998–1999,
1999–2000, and 2000–2001) . . . . [B]ased on
our review of the record, there is no basis to
find that the continued application of the AD
order is necessary to offset dumping.
Id.
In October 2003, Plaintiffs filed a Motion for Judgment Upon
the Agency Record pursuant to USCIT Rule 56.2. Plaintiffs,
however, do not contest the results of this administrative review
but take issue with the revocation of the antidumping duty order.
See Elkem Metals Co. v. United States, Ct. No. 03-00020, Compl. at
7 (Feb. 18, 2003) (“Plaintiffs challenge [Commerce’s] revocation of
the order as to RIMA in the Final Results.”). As indicated supra,
Plaintiffs maintain that Commerce’s revocation determination would
not be in accordance with law if the
Court No. 03-00020 Page 8
determination under review in Elkem Metals 02-00232 is found to be
unsupported by substantial evidence or otherwise not in accordance
with law. See id. Thus, the disposition of the issue upon which
judgment upon the agency record is currently sought is dependent
upon the disposition of the Second Administrative Review,
concurrently being challenged in a separate action, Elkem 02-232.
Following a full briefing by all parties, on February 6, 2004
the Court stayed this proceeding for all purposes until August 6,
2004. See Elkem Metals Co. v. United States, No. 03-00020 (Feb. 5,
2004) (Carman, J.)(order staying proceedings). No further action
has been taken by any of the parties since the entry of the stay.
ANALYSIS
Both Plaintiffs and Defendants maintain that the Court should
stay these proceedings pending final judgment in Elkem Metals 02-
232.1 See Pl.’s Br. at 12; Def.’s Br. at 12 (“[W]e respectfully
join in plaintiffs’ request that the Court stay proceedings . . .
until a final judgment has been entered in Elkem Metals 232 with
respect to the 1999-2000 review period.”). The Court agrees and
finds that a stay is warranted. See Landis v. North American Co.,
1
Both parties also agree that Plaintiffs were required
to appeal Commerce’s revocation determination in order to
preserve this Court’s jurisdiction to review the determination.
See Pl.’s Reply at 3; Def.’s Br. at 12.
Court No. 03-00020 Page 9
299 U.S. 248, 255 (1936).
Although the final results of the 2000-2001 POR are at issue
herein, the disposition of this matter is also contingent upon
whether the 1999-2000 determination is sustained. Indeed, if the
administrative review covering the 1999–2000 POR is found to be
unsupported by substantial evidence or otherwise not in accordance
with law, there cannot be three consecutive years of no sales at
less than NV, a requirement for revocation. See § 351.222. The
issue of whether Commerce properly determined the dumping margin in
the 1999-2000 POR, however, is not currently before this Court. As
indicated supra, the Remand Results covering the 1999–2000 POR were
recently filed, with comments thereto due on May 4, 2007 and
replies to such comments due on May 19, 2007. See Elkem Metals, 30
CIT at __, Slip Op. 06-189 at 2. As such, no final judgment has
yet been entered.
Due to the parallel litigation described herein, the Court
finds that a stay of the proceedings in this action is appropriate.
Accordingly, this matter shall be stayed until final judgment has
been entered in Elkem Metals 02-232. An action is final when a
decision has been issued that “ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment.”
Catlin v. United States, 324 U.S. 229, 232 (1945).
Court No. 03-00020 Page 10
CONCLUSION
Therefore, upon consideration of the Plaintiffs’ Brief In
Support of Motion for Judgment on the Agency Record, as well as the
opposition thereto, all papers herein, and for the foregoing
reasons, it is hereby
ORDERED that proceedings in this action are STAYED pending the
outcome of Elkem Metals v. United States, Court No. 02-00232.
/s/ Nicholas Tsoucalas
May 3, 2007 NICHOLAS TSOUCALAS
New York, NY SENIOR JUDGE