Rhodia, Inc. v. United States

Slip Op. 02-109

United States Court of International Trade

RHODIA, INC.,
Plaintiff,

v.
Before: Pogue, Judge
UNITED STATES,
Defendant
Consol. Court No.
and 00-08-00407

JILIN PHARMACEUTICAL CO., LTD.;
SHANDONG XINHUA PHARMACEUTICAL FACTORY
CO., LTD.,

Defendant-Intervenors.

[ITA decision affirmed.]

Decided: September 9, 2002

Williams Mullen Clark & Dobbins (James R. Cannon, Jr., Julia K.
Bailey, William E. Pomeranz) for Plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General, David M.
Cohen, Director, Lucius B. Lau, Assistant Director, Ada E. Bosque,
Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice; Emily Lawson, Attorney, Office of the Chief
Counsel for Import Administration, U.S. Department of Commerce, Of
Counsel, for Defendant.

White & Case (William J. Clinton, Adams C. Lee) for Defendant-
Intervenor Jilin Pharmaceutical Co., Ltd.

Garvey, Schubert & Barer (William E. Perry, John C. Kalitka) for
Defendant-Intervenor Shandong Xinhua Pharmaceutical Factory, Ltd.
Consol. Court No. 00-08-00407 Page 2

OPINION

Pogue, Judge: On November 30, 2001, this Court in Rhodia v. United

States, 25 CIT __, 185 F. Supp. 2d 1343 (2001)(“Rhodia I”),1

remanded the Department of Commerce’s final determination in Sales

at Less than Fair Value: Bulk Aspirin from the People’s Republic of

China, 65 Fed. Reg. 33,805 (May 25, 2000), as amended, 65 Fed. Reg.

39,598 (June 27, 2000), and the accompanying Issues and Decision

Memorandum, P.R. Doc. No. 155 (May 17, 2000). The remand order

directed Commerce to review the record evidence pertaining to the

calculation of factory overhead, selling, general and

administrative expenses (SG&A) and profit.2 This Court now reviews

Commerce’s Redetermination Pursuant to Court Remand: Rhodia v.

United States (Mar. 29, 2002)(“Remand Determination”).

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).3

Background

This case involves the imposition of antidumping duties on

imports of bulk acetylsalicylic acid, commonly referred to as

1
Familiarity with the Court’s earlier opinion is presumed.
2
Commerce also asked for and was granted a voluntary remand
to correct the calculation of the overhead ratio by removing
traded goods from the denominator. Rhodia I, 25 CIT at __, 185
F. Supp. 2d at 1357.
3
Citations to the administrative record include references
to public documents from the original inquiry (“P.R. Doc.”);
proprietary documents from the original inquiry (“C.R. Doc.”);
public documents from the remand inquiry (“R.P.R. Doc.”) and
proprietary documents from the remand inquiry (“R.C.R. Doc.”).
Consol. Court No. 00-08-00407 Page 3

aspirin, from the People’s Republic of China (“PRC”).4 In the

Final Determination, Commerce found the PRC to be a nonmarket

economy (“NME”) country and therefore selected India as the

surrogate market economy country in accordance with 19 U.S.C. §

1677b(c)(4). In calculating the antidumping duty, Commerce derived

a normal value for PRC producers of bulk aspirin from three Indian

surrogate companies; Alta Laboratories, Ltd. (“Alta”), Andhra

Sugars, Ltd. (“Andhra”), and Gujarat Organics, Ltd. (“Gujarat”),

which produced salicylic acid, salicylic acid derivatives, or

aspirin. Commerce assumed that these surrogates were not as

integrated as the PRC producers and therefore claimed that the PRC

producers would have a higher overhead-to-raw material ratio than

the surrogate producers. To compensate, Commerce applied the

overhead ratio calculated from the Indian surrogate producers’ data

twice. Commerce also calculated overhead, SG&A, and profit ratios

using a weighted average.

This Court remanded Commerce’s determination because Commerce

did not identify record evidence supporting its assumption that the

surrogates were less integrated than the PRC producers or explain

its reasons for departing from the normal practice of using a

simple average to calculate the overhead, SG&A, and profit ratio.

4
Bulk aspirin is produced by combining two main ingredients,
salicylic acid and acetic anhydride, which react to form
acetylsalicylic acid or aspirin.
Consol. Court No. 00-08-00407 Page 4

Discussion

I. Integration Level of Indian Producers5

In the Final Determination, Commerce assumed that the Indian

surrogate producers were more representative of input producers6

5
Rhodia filed both a response to the Department’s Remand
Determination and Jilin’s remand comments, as well as, a motion
for leave to file a reply brief with a proposed reply brief
attached. Jilin opposes these later filings. According to
Jilin, this court’s remand order “limited the opportunity to file
response comments to the Department, and did not specifically
provide parties with the opportunity to file comments in response
to other parties’ remand comments.” Jilin’s Opp’n to Rhodia’s
July 15, 2002 Mot. for Leave to File a Reply Br. and Mot. to
Strike Rhodia’s May 28, 2002 Comments in Opp’n to Jilin’s Remand
Comments at 2. The original opinion “granted [the parties] 30
days to file comments on the remand determination. The
Department may respond to any comments filed within 20 days.”
Rhodia I, 25 CIT at __, 185 F. Supp. 2d at 1358. “Motions to
strike are extraordinary measures,” Acciai Speciali Terni SPA v.
United States, 24 CIT __, __, 120 F. Supp. 2d 1101, 1106 (2000),
“not favored by the courts and infrequently granted.” Jimlar
Corp. v. United States, 10 CIT 671, 673, 647 F. Supp. 932, 934
(1986). Such motions are only granted when there is a “flagrant
disregard of the rules of the court,” as when “the brief
demonstrates a lack of good faith, or . . . the court would be
prejudiced or misled by the inclusion in the brief of the
improper material.” Id. Here, Rhodia interpreted the remand
order as allowing all parties to respond. Rhodia, however, also
“respectfully request[ed] leave to file its Opposition to Remand
Comments of Jilin . . . .” Because Rhodia’s opposition was filed
within the time limits of the remand order and addresses issues
raised by Jilin yet not previously addressed by Rhodia, we deny
Jilin’s motion to strike. Furthermore, Jilin did not even file
its motion to strike until 49 days after Rhodia’s Opposition was
filed. We also accept Rhodia’s Motion for Leave to File Reply
Brief as “it is in the interest of the court to hear all the
parties' arguments expressed as thoroughly and clearly as
possible.” Borden, Inc. v. United States, 22 CIT 233, 248 n.11, 4
F. Supp. 2d 1221, 1235 n.11 (1998).
6
In this investigation, Commerce used the term “input
producer” to refer to a company that only produces aspirin
inputs, such as salicylic acid (made from phenol and carbon
Consol. Court No. 00-08-00407 Page 5

than of fully integrated producers such as those found in the PRC.

Less integrated producers, according to Commerce, have lower

overhead rates. As a result, Commerce applied an overhead ratio at

more than one stage of the production process. Commerce did not

explain, however, why a fully integrated producer has a higher

overhead ratio nor cite any evidence demonstrating that the

surrogate producers were in this instance less integrated than the

PRC producers.

On remand, Commerce adopted the opposite position and applied

the overhead ratio once, at the final stage of production.

Commerce followed this Court’s understanding that “[w]hile

salicylic acid is an input in aspirin production, aspirin is also

a derivative of salicylic acid.” Rhodia I, 25 CIT at __, 185 F.

Supp. 2d at 1349. Commerce therefore reasoned that because the

three Indian surrogates produce at least one major aspirin input,

such as salicylic acid, as well as some salicylic acid derivatives,

the surrogates were representative of the PRC producers’

experience. Since Andhra, one of the Indian surrogates, also

produces aspirin, Commerce’s conclusion was further supported.

Commerce noted that the production of a chemical derivative

necessarily requires some further processing. Remand Determ. at 5

dioxide) or acetic anhydride (made from acetic acid and other
materials);a “fully integrated producer” produces salicylic acid,
acetic anydride and the final aspirin product, bulk
acetylsalicylic acid.
Consol. Court No. 00-08-00407 Page 6

(citing to The Cassell Dictionary of Chemistry 59 (1998), which

defines derivatives as “a chemical compound derived from some other

compound by a straightforward reaction, which usually retains the

structure and some of the chemical properties of the original

compound”). Even though Commerce was unable to ascertain whether

the further processing used by the Indian surrogates to produce the

derivatives was “major or minor,” Commerce found that “there is no

evidence on the record which shows that the further processing is

not commensurate with the additional stage of processing Jilin and

Shandong employ to produce aspirin.” Remand Determ. at 5. Based on

the record, Commerce could not “rule out that the production of

derivatives by [the surrogates] may mean that they are as

integrated as Jilin and Shandong.” Id.

Furthermore, Commerce determined that the quantity of aspirin

a company produces “is not probative of whether the company should

be viewed as an integrated producer.” Id. at 6. Rather, Commerce

found that as Andhra produces a small percentage of aspirin as well

as other chemicals, “because [it] produces both acetic anhydride

and aspirin, we cannot conclude that the company’s overhead amount

better represents the experience of an upstream input producer.”

Id.

Based on this analysis of the evidence, Commerce refrained

from adjusting the Indian surrogate producers’ data in its

calculation of the normal value on remand. This decision is
Consol. Court No. 00-08-00407 Page 7

consistent with Commerce’s normal practice because Commerce does

not generally adjust the surrogate values used in the calculation

of factory overhead. See Notice of Final Determination of Sales at

Less Than Fair Value: Polyvinyl Alcohol from the People’s Republic

of China, 61 Fed. Reg. 14,057, 14,060 (Mar. 29, 1996); Synthetic

Indigo from the People’s Republic of China, 65 Fed. Reg. 25,706,

25,706-07 (May 3, 2000); Certain Helical Spring Lock Washers from

the People’s Republic of China, 64 Fed. Reg. 13,401, 13,404 (Mar.

18, 1999); Certain Helical Spring Lock Washers from the People’s

Republic of China, 65 Fed. Reg. 31,143, 31,143 (May 16, 2000);

Notice of Final Determination of Sales at Less Than Fair Value:

Collated Roofing Nails from the People’s Republic of China, 62 Fed.

Reg. 51,410, 51,413, 51,417 (Oct. 1, 1997). Rather, once Commerce

establishes that the surrogate produces identical or comparable

merchandise, closely approximating the nonmarket economy producer’s

experience, Commerce merely uses the surrogate producer’s data. 19

U.S.C. § 1677b(c)(4) (2000); 19 C.F.R. § 351.408(c)(4) (2001).

Furthermore, Commerce is neither required to “duplicate the exact

production experience of the Chinese manufacturers,” Nation Ford

Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999),

nor undergo “an item-by-item analysis in calculating factory

overhead.” Magnesium Corp. of Am. v. United States, 166 F.3d 1364,

1372 (Fed. Cir. 1999). Moreover, Commerce need not use “perfectly

conforming information,” only comparable information. Antidumping
Consol. Court No. 00-08-00407 Page 8

Duties; Countervailing Duties: Notice of Proposed Rulemaking and

Request for Public Comments, 61 Fed. Reg. 7,308, 7,344 (Feb. 27,

1996). Therefore, on remand, Commerce acted consistently with its

normal practice by refraining from adjusting the Indian surrogate

producers’ data.

In Polyvinyl Alcohol from the PRC, Commerce was faced with a

situation similar to the one before the court here. 61 Fed. Reg.

14,057, 14,060 (Mar. 29, 1996). The petitioners in that

investigation argued that the application of factory overhead at

the final stage of production, rather than to the upstream stages,

would understate normal value. Id. Just as it determined here, in

Polyvinvyl Alcohol from the PRC, Commerce found that “there [was]

no evidence on the record to indicate that the Indian producers are

any less vertically integrated than the PRC PVA producers.” Id.

Commerce also held that there was “no basis to assume that applying

[a] factory overhead percentage once, at the final stage of

production of the PRC producers, undervalues factory overhead.” Id.

Unless there is substantial evidence in the record which

supports a finding that the surrogate producers are less integrated

that the PRC producers, and as a result have a lower overhead

ratio, Commerce cannot depart from its standard practice. Rhodia

claims that by upholding this practice, the Court will be

permitting Commerce to make inferences adverse to the domestic

producer. Here, however, Commerce is not making an adverse
Consol. Court No. 00-08-00407 Page 9

inference, but is simply following its standard practice of using

data from a surrogate producer of identical or comparable

merchandise.

II. Weighted Average v. Simple Average

In the Final Determination, Commerce calculated surrogate

overhead, SG&A, and profit ratios using a weighted average of the

three Indian producers; Alta, Andhra, and Gujarat. This Court

found that “[i]n almost every antidumping investigation where

Commerce uses only a few surrogate companies, Commerce applies a

simple average to derive overhead, SG&A, and profit,” and remanded

to Commerce to either conform with its usual practice or “explain

the reasons for its departure.” Rhodia I, 25 CIT at __, 185 F.

Supp. 2d at 1350(quoting Hussey Copper, Ltd. v. United States, 17

CIT 993, 997, 834 F. Supp. 413, 418 (1993)).

On remand, Commerce agreed that its “usual practice is to use

a simple average when combining data for these types of

calculations” and found “no facts in this proceeding that warrant

deviation from that practice.” Remand Determ. at 7. Accordingly,

Commerce recalculated the overhead, SG&A, and profit ratios using

a simple average. Id. Both Alta and Gujarat, however, had negative

profits. Id. Rather then set these losses at zero and include them

in the simple average, as was done in Commerce’s draft Remand

Determination, Commerce excluded this information from the profit
Consol. Court No. 00-08-00407 Page 10

calculation. Id. Therefore, the profit ratio calculation only

included data from Andhra’s financial statement. Id. Jilin claims

that Commerce’s exclusion of Alta and Gujarat’s profit information

is unreasonable, inconsistent with the remand order, and contrary

to the plain language of the statute. Jilin’s Comments On Remand

Determ. at 7-8 (“Jilin’s Remand Comments”).7

Neither the controlling statute nor the regulations specify

how to determine the profit component of constructed value. 19

U.S.C. § 1677b(c)(1) (2000) provides that Commerce shall

determine the normal value of the subject merchandise on
the basis of the value of the factors of production
utilized in producing the merchandise and to which shall
be added an amount for general expenses and profit . . .
[T]he valuation of the factors of production shall be
based on the best available information regarding the
values of such factors in a market economy country or
countries considered to be appropriate....

Id. Pursuant to 19 C.F.R. § 351.408(c)(4) (2001), Commerce is

directed to “normally . . . use nonproprietary information gathered

from producers of identical or comparable merchandise in the

surrogate country.” Id. The statute and regulations refer only to

“an amount” for profit that is added to the factors of production

and are silent with respect to the calculation of profit. §

7
Jilin also argues that Commerce’s “practice of excluding
zero profit companies was developed almost entirely after the
issuance of Aspirin.” Jilin’s Remand Comments at 11. The focus
of this court’s inquiry, however, is whether the methodology
applied on redetermination is within the agency’s discretion;
whether the agency has explained its reasons for its practice;
and whether the practice is reasonable and in accordance with
law.
Consol. Court No. 00-08-00407 Page 11

1677b(c)(1); 19 C.F.R. § 351.408(c)(4). As even Jilin concedes,

“[t]he statutory language provides no limitation that the profit

amount must be calculated in any particular way.” Jilin’s Remand

Comments at 9. Because the statute is ambiguous, we review

Commerce’s interpretation to determine whether it is reasonable.8

Jilin cites to this Court’s reference in Rhodia I to Notice of

Final Determination of Sales at Less Than Fair Value: Bicycles from

the Peoples Republic of China, 61 Fed. Reg. 19,026, 19,039 (Apr.

30, 1996) in support of its argument that Commerce’s decision to

exclude surrogates with negative profits from its calculation is

unreasonable. See Jilin’s Remand Comments at 7-9. According to

Jilin, Bicycles stands for the proposition that Commerce must use

a simple average unless it presents evidence that the surrogate

values are not equally representative of the surrogate experience.

Id. at 7. Jilin claims that the exclusion of zero profits from a

8
Statutory interpretations articulated by Commerce during
its antidumping proceedings are reviewed using the traditional
two step analysis articulated in Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). See
Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372,
1382 (Fed. Cir. 2001); cf. Skidmore v. Swift & Co., 323 U.S. 134,
139-40 (1944)(explaining the less deferential “persuasive”
analysis); see also United States v. Mead Corp., 533 U.S. 218,
226-27(2001). In determining whether Commerce’s statutory
interpretation is in accordance with law, "first, always, is the
question whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress."
Chevron, 467 U.S. at 842-43. If the statute is ambiguous, then
the court asks whether the agency's interpretation of the statute
is reasonable. Id. at 843.
Consol. Court No. 00-08-00407 Page 12

simple determination is essentially a weighted average calculation

in violation of this Court’s directive and Bicycles. See id. at 7-

9.

Jilin, however, misinterprets the Court’s reliance on

Bicycles. This Court referred to Bicycles because it was one of

the few investigations where Commerce actually addressed the issue

of weighted average factory overhead, SG&A, and profit. Bicycles

did not specify, and this Court did not previously address, the

issue of whether a specific simple average needed to be used;

rather the Court referred to Bicycles’ directive that Commerce

adhere to its normal practice unless it could explain the reasons

for its departure. Commerce’s normal practice with regard to

profit calculation in NME cases has evolved since Bicycles.

Commerce has been excluding zero profits in market economy cases

since 1997, see Silicomanganese from Brazil: Final Results of

Antidumping Duty Administrative Review, 62 Fed. Reg. 37,869, 37,877

(July 15, 1997), and slowly began to apply this methodology to

nonmarket economies. See, e.g., Certain Small Diameter Carbon and

Alloy Seamless Standard, Line and Pressure Pipe from Romania, 65

Fed. Reg. 5,594, 5,598 (Feb. 4, 2000)(discussing the issue of non-

profitable surrogates although excluding on other grounds). As

long as Commerce properly explains its reasons, and its practice is

reasonable and permitted by the statute, Commerce’s practice can

and should continue to change and evolve. See,e.g., Zenith Elecs.
Consol. Court No. 00-08-00407 Page 13

Corp. v. United States, 77 F.3d 426, 430 (Fed. Cir. 1996).

Commerce acknowledges that its “practice with respect to

including zero profits in calculating average profit rates has

varied over time and is not consistent.” Remand Determ. at 19.9

It argues, however, that “while exceptions to the practice exist

since the Final Determination, we have followed the policy

described in Reinforcing Bars from the PRC and Reinforcing Bars

from Moldova, and cited to in Windshields from the PRC and Hot-

rolled Steel from the PRC, because the issue was clearly raised and

addressed in these cases.” Id.

In Notice of Final Determination of Sales at Less than Fair

Value: Steel Concrete Reinforcing Bars from the People’s Republic

of China, 66 Fed. Reg. 33,522 (June 22, 2001), Commerce explained

that it did not think there was a reason to distinguish between

market and nonmarket economy producers with regard to profit

9
Jilin cites to Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, from the People’s Republic of China:
Final Results of 1999-2000 Administrative Review, Partial
Rescission of Review and Determination not to Revoke Order in
Part, 66 Fed. Reg. 57,420 (Nov. 15, 2001), as a recent example of
Commerce’s varied methodology. Jilin’s Remand Comments at 10.
However, in Tapered Roller Bearings, the only recent case in
which companies with losses were included in the profit
calculation, Commerce did not even follow its normal practice of
using a simple average, but applied a weighted average to
calculate profit. We remanded this case precisely because
Commerce did not explain its inconsistent use of a weighted
average. In the Remand Determination, Commerce attempts to
explain its approach and present a consistent practice. Tapered
Roller Bearings therefore does not affect the situation presented
here.
Consol. Court No. 00-08-00407 Page 14

calculations. According to Commerce, the same principles apply to

both and therefore it has decided to extend its practice of

excluding negative losses in the calculation of profit for market

economy producers to nonmarket economy producers. As Commerce

articulated in Reinforcing Bars from the PRC,

[a]lthough in some past cases we have averaged in a loss
as zero profit, we believe a better approach is found in
Certain Fresh Cut Flowers from Ecuador: Preliminary
Results and Partial Recision of Antidumping
Administrative Review, 64 FR 18878 (April 16,
1999)(Flowers from Ecuador), which disregards financial
statements showing a loss for purposes of calculating the
profit component of constructed value under Section
773(e)(2) of the Act in market economy cases. The same
principles applied in Flowers from Ecuador are reasonably
applied in a nonmarket economy case.

See Issues and Decision Memorandum, Comment 8; Reinforcing Bars

from the PRC, 66 Fed. Reg. at 33,522. Flowers from Ecuador,

referring to Silicomanganese from Brazil, disregarded financial

statements of producers that incurred losses because it “enabled

[Commerce] to derive an element of profit as contemplated by the

[Uruguay Round Agreements Act, Statement of Administrative Action,

H.R. Doc. No. 103-316, reprinted in 1994 U.S.C.C.A.A.N. 1440, at

826 (1994) (“SAA”)].” Flowers from Ecuador, 64 Fed. Reg. at

18,883.10 The SAA, according to these investigations, contemplates

the use of positive profits.

10
The SAA is "an authoritative expression by the United
States concerning the interpretation and application of the
Uruguay Round Agreements and this Act in any judicial proceeding
in which a question arises concerning such interpretation or
application." 19 U.S.C. § 3512(d) (2000).
Consol. Court No. 00-08-00407 Page 15

As Commerce explained in Flowers from Ecuador and

Silicomanganese from Brazil, and as it also argues here,

constructed value “must include an amount for SG&A expenses and for

profit” to be a fair sales price. SAA at 839. In making this

profit calculation, the SAA allows Commerce to “ignore sales that

it disregards as a basis for normal value, such as those

disregarded because they are made at below-cost prices.” Id. As

the SAA explains, “in most cases Commerce would use profitable

sales as the basis for calculating profit for purposes of

constructed value.” Id. at 840. Furthermore, “[s]ales at a loss

are consistently rejected, both as a basis for normal volume (19

U.S.C. § 1677b(b)) and as a basis for constructed value (19 U.S.C.

§ 1677b(e)).” Rhodia’s Opp’n to Jilin’s Remand Comments at 8.

Because negative losses are often rejected and ignored for normal

value, based on the clear expression of legislative intent

contained within the SAA, Commerce’s decision to exclude them from

the profit ratio is a reasonable extension of this policy.

Moreover, this practice is consistent with the dictionary

definition of the term “profit.” See Def.’s Mem. Opp’n to Pl’s

Second Mot. J. Agency R. and Comments of Def.-Int. at 21 (citing

Silicomanganese from Brazil, 62 Fed. Reg. 37,869, 37,877 (July 15,

1997)). Silicomanganese from Brazil quotes Barron’s Financial

Guides: Dictionary of Finance and Investment Terms 310 (1987),

defining “profit” as “the ‘positive difference that results from
Consol. Court No. 00-08-00407 Page 16

selling products and services for more than the cost of producing

these goods’ and also the ‘difference between the selling price and

the purchase price of commodities or securities when the selling

price is higher.’” Silicomanganese from Brazil, 62 Fed. Reg. at

37877. Commerce reasonably relies on the SAA and dictionary

definitions of profit to conclude that only a positive figure

should be included.

Jilin, however, claims that there are “fundamental differences

in market and non-market economy cases.” Remand Determ. at 17.

Jilin argues that the difference lies in the information obtained

by Commerce – for market economy producers, Commerce has enough

below-cost sales information to achieve alternative profit

calculations, but with nonmarket economy producers Commerce only

has public financial statements without sales-specific data. In

nonmarket economy cases, Commerce attempts to construct a product’s

price “as it would have been if the nonmarket economy country were

a market economy, using the best information available regarding

surrogate values.” Air Prods. and Chems., Inc. v. United States,

22 CIT 433, 435 ,14 F.Supp.2d 737, 741 (1998); see also Remand

Determ. at 17. By only including profitable producers, Jilin

argues that Commerce does not properly construct a product’s price

as it would have been in the nonmarket economy. Notwithstanding

its argument, Jilin offers no substantive or evidentiary basis for

its claim. Even if there are differences in the data available to
Consol. Court No. 00-08-00407 Page 17

Commerce for nonmarket economy and market economy producers, Jilin

has offered nothing to demonstrate that Commerce’s use of a similar

approach for the two will produce erroneous results.

Accordingly, this Court will defer to Commerce’s reasonable

interpretation of the statute. Here, Commerce reasonably applied

the logic and methodology used for market economies to nonmarket

economies. Therefore, we uphold Commerce’s exclusion of zero

profits from the profit calculation.

Donald C. Pogue, Judge

Dated: September 9, 2002
New York, New York