Slip Op. 01 - 74
UNITED STATES COURT OF INTERNATIONAL TRADE
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NEENAH FOUNDRY CO.; ALHAMBRA FOUNDRY
INC.; ALLEGHENY FOUNDRY CO.; DEETER :
FOUNDRY INC.; EAST JORDAN IRON WORKS,
INC.; LEBARON FOUNDRY INC.; MUNICIPAL :
CASTINGS, INC.; and U.S. FOUNDRY &
MANUFACTURING CO., :
Plaintiffs, : Court No. 99-07-00441
v. :
:
THE UNITED STATES,
:
Defendant.
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Memorandum
[ITA final results of redetermination
pursuant to court remand affirmed.]
Decided: June 20, 2001
Collier Shannon Scott, PLLC (Paul C. Rosenthal and Robin H.
Gilbert) for the plaintiffs.
Stuart E. Schiffer, Acting Assistant Attorney General; David
M. Cohen, Director, and Velta A. Melnbrencis, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice; and Office of Chief Counsel for Import Administration,
U.S. Department of Commerce (Robert E. Nielsen), of counsel, for
the defendant.
AQUILINO, Judge: This court's slip opinion 01-37, 25 CIT
, F.Supp.2d (April 2, 2001), familiarity with which is
presumed, denied plaintiffs' motion for judgment herein upon the
record compiled by the International Trade Administration, U.S.
Department of Commerce ("ITA") sub nom. Final Results of Expedited
Sunset Review: Iron Metal Castings From India, 64 Fed.Reg. 30,316
Court No. 99-07-00441 Page 2
(June 7, 1999), amended, 64 Fed.Reg. 37,509 (July 12, 1999), except
for remand to that agency
for reconsideration of the subtraction of IPRS from the
net countervailable subsidy without having considered the
method of that program's alleged termination or the like-
lihood of its reinstatement in the absence of any prior
administrative determination of that issue.1
The defendant has now duly filed its Final Results of
Redetermination Pursuant to Court Remand (May 25, 2001), the
summary of which on page 1 thereof is that
we have reconsidered the exclusion of the IPRS from the
net countervailable subsidy, by considering the method by
which the IPRS program was terminated and the likelihood
of its reinstatement in the absence of any prior adminis-
trative determination of this issue. Based on our
reconsideration in accordance with the Court's instruc-
tions, we continue to find that the IPRS program has been
terminated and continue to exclude it from the net
countervailable subsidy.
Footnotes omitted. This conclusion draws upon the premise that
it is reasonable to conclude that when a program is
initiated through the action of a government agency, it
is rational to expect that that program would also be
eliminated through agency action, rather than by legisla-
tive action.
Final Results, p. 7. Furthermore,
evidence indicating that a significant period of time had
passed since the elimination of a program, without that
program being re-instituted, provides a strong basis for
concluding that the government is not likely to reinstate
the program. . . . [I]n this case, Commerce has found no
evidence in administrative reviews conducted for periods
subsequent to the effective date of the elimination of
1
Slip Op. 01-37, pp. 39-40 (emphasis added). The acronym IPRS
derives from India's International Price Reimbursement Scheme.
Court No. 99-07-00441 Page 3
the IPRS program that the IPRS program has been re-insti-
tuted.
Id. at 8.
I
The statutory standard governing judicial review of this
case continues to be that any determination is unlawful if found to
be arbitrary, capricious, and abuse of discretion, or otherwise not
in accordance with law. 19 U.S.C. §1516a(b)(1)(B)(ii) (1995). See
19 U.S.C. §1516a(a)(1)(D) (1995); Slip Op. 01-37, pp. 6-7, 25 CIT
at , F.Supp.2d at .
The plaintiffs renew the pursuit of relief under this
standard, arguing now that, for the ITA
to make a finding of termination in this remand determi-
nation, Commerce would have to be able to find that,
during a proceeding in which this issue was addressed on
the merits and plaintiffs were given an opportunity to
comment on the evidence put forth by the Indian respond-
ents (as well as submit any evidence of their own),
Commerce had reached a formal determination of this
issue.
Plaintiffs' Comments on Remand Results, p. 6 (June 5, 2001). They
maintain that, if
a respondent had claimed during an administrative review
that the IPRS program was more than simply "not used,"
Commerce would have considered the issue on its merits,
taken evidence from all parties to the review, and all
information would be subject to verification. . . .
Commerce has neither considered the issue on its merits
before, nor has the domestic industry had any opportunity
to present evidence of its own.
Id. at 7.
Court No. 99-07-00441 Page 4
A
Procedurally, this position is tenuous, given the number
of administrative reviews conducted prior hereto by the ITA under
19 U.S.C. §1675, and with the apparent, active participation of the
plaintiffs herein therein. See, e.g., Certain Iron-Metal Castings
From India; Final Results and Partial Rescission of Countervailing
Duty Administrative Review, 63 Fed.Reg. 64,050, 64,051 (Nov. 18,
1998) (IPRS "not used" during 1996 period of review); Certain Iron-
Metal Castings From India; Final Results of Countervailing Duty
Administrative Review, 62 Fed.Reg. 32,297, 32,299 (June 13, 1997)
(IPRS "not used" during 1994); Certain Iron-Metal Castings From
India: Final Results of Countervailing Duty Administrative Review,
61 Fed.Reg. 64,676, 64,677 (Dec. 6, 1996) (IPRS "not used" during
1993 period of review); Certain Iron-Metal Castings From India:
Preliminary Results of Countervailing Duty Administrative Review,
60 Fed.Reg. 44,839, 44,842 (Aug. 29, 1995) (IPRS "not used" during
1992). Indeed, at least two of these administrative reviews were
stated to have been at the behest of the domestic producers,
plaintiffs herein. See Certain Iron Metal Castings From India:
Preliminary Results of Countervailing Duty Administrative Review,
61 Fed.Reg. 25,623 (May 22, 1996); ibid., 60 Fed.Reg. at 44,839.
Moreover, prior to filing the Final Results now contested
herein, the defendant moved this court for an extension of time
within which to file on the stated ground that the ITA had
Court No. 99-07-00441 Page 5
decided that additional information would be helpful in
resolving the [IPRS] issue. Commerce personnel will be
traveling to India to conduct a verification with respect
to another order beginning the week of May 14, 2001, and
returning around June 4, 2001. During this time, the
personnel will have an opportunity to verify whether the
IPRS program has been terminated. Upon their return,
Commerce will prepare a verification report which it will
make available to the parties. They will then be given
time to submit whatever comments they wish to make on the
issue. After considering the comments, Commerce will
reconsider whether the IPRS program has been terminated,
the method of termination, and the likelihood of its
reinstatement. Commerce anticipate[s] that it will be in
a position to report the results of its reconsideration
upon remand by June 29, 2001.2
The plaintiffs opposed this motion, arguing, among other things,
that the ITA was precluded from reopening its administrative rec-
ord, in part, because "it . . . would be directly contrary to
Commerce's sunset regulations." Plaintiffs' Opposition to
Defendant's Motion for Extension of Time to Complete Remand, p. 2,
and citing 19 C.F.R. §351.218(e)(1)(ii)(C) (1999), to wit:
Inadequate response from respondent interested
parties. If the Secretary determines that respondent
interested parties provided inadequate response to a
notice of initiation . . ., the Secretary:
* * *
(2) Normally will conduct an expedited sunset review
and . . . issue, without further investigation, final
results of review based on the facts available in
accordance with §351.308(f) . . ..
2
Defendant's Motion for Extension of Time to Complete Remand,
p. 2.
Court No. 99-07-00441 Page 6
Given the facts and circumstances of this case, the court
concluded that this opposition to defendant's motion by the
plaintiffs was well-taken, whereupon it was denied, and the Final
Results were filed without further ado.
B
Now, the plaintiffs argue that those Final Results
contain "no analysis, nor reasoned explanation, of whether [a]
single document is sufficient evidence of [IPRS]'s termination for
purposes of the sunset law." Plaintiffs' Comments on Remand
Results, pp. 5-6. That is, the
only fact supporting Commerce's determination is a self-
serving statement from the Indian Ministry of Commerce
saying the IPRS program was "withdrawn" - a statement
placed in the record of an administrative review in which
the issue of the program's termination was not raised,
briefed, nor became the basis of a determination by
Commerce.
Id. at 12. But the Final Results note at page 8 that this
withdrawal occurred "prior to the [Uruguay Round Agreements Act]
URAA effective date and several years before the November 1998
initiation of the sunset review of the CVD order on the iron-metal
castings." In other words, the letter hardly issued in conjunction
with this five-year review.
The plaintiffs also claim that "the record . . . does not
support a finding that there is no likelihood of the IPRS program
Court No. 99-07-00441 Page 7
being reinstated"3, stating that the ITA's "findings solely of
'non-use' over the life of this order as evidence that the IPRS has
not been re-instituted" are insufficient to support its determina-
tion that the program is unlikely to be reinstated in the event of
revocation. Id. at 14. They contend that it
is of limited probative value in Commerce's analysis for
it to look only for evidence of reinstatement after a
program is allegedly terminated. . . . [E]ven though
Commerce has found no evidence of reinstatement prior to
the sunset review, that could just as well indicate that
the Indian government is not so foolish as to reinstitute
such a significant export subsidy just in time for it to
be counted in a sunset subsidy rate projection.
Id. at 13 (emphasis in original).
In fact, this determination is consistent with others of
the ITA. See, e.g., Final Results of Expedited Sunset Review:
Stainless Steel Wire Rod From Spain, 65 Fed.Reg. 6,166, 6,169 (Feb.
8, 2000) (finding that subsidy programs are not likely to be
reinstated based on "prior findings regarding the termination of
[the programs] and . . . lack of evidence to the contrary");
Final Results of Full Sunset Review: Live Swine From Canada, 64
Fed.Reg. 60,301, 60,302-03 (Nov. 4, 1999) (finding four subsidy
programs terminated with no likelihood of reinstatement where the
ITA had not found any grounds for reconsideration of the programs
or their termination in any administrative review since their
termination).
3
Plaintiffs' Comments on Remand Results, p. 8.
Court No. 99-07-00441 Page 8
The plaintiffs offer neither authority for the proposi-
tion that there is a "greater evidentiary burden"4 for a finding of
no likelihood of reinstatement nor an example of what would
constitute satisfactory evidence in a case such as this. In the
sunset review of the order covering live swine from Canada, supra,
the court notes that the petitioners claimed that "the governments
have demonstrated a pattern of eliminating and then replacing pork
subsidy programs with new ones". Preliminary Results of Full
Sunset Review: Live Swine From Canada, 64 Fed.Reg. 34,209, 34,210
(June 25, 1999). But the ITA found no likelihood of reinstatement
because "the record does not indicate a connection between the
programs that have been terminated and the new programs." Id. at
34,213.
Here, IPRS was not only "withdrawn" some five years
before the sunset review at bar was initiated, it was "not used"
for several years5 prior thereto. See Final Results, Attachment 1;
Final Results of Countervailing Duty Administrative Review: Certain
4
Id. at 10.
5
It should also be noted that the ITA's policy bulletin
provides that
where a company has a long track record of not using a
program, including during the investigation, the Depart-
ment normally will determine that the mere availability
of the program does not, by itself, indicate likelihood
of continuation or recurrence of a countervailable
subsidy.
Policies Regarding the Conduct of Five-year ("Sunset") Reviews of
Antidumping and Countervailing Duty Orders; Policy Bulletin, 63
Fed.Reg. 18,871, 18,874 (April 16, 1998).
Court No. 99-07-00441 Page 9
Iron-Metal Castings From India, 56 Fed.Reg. 52,521, 52,527 (Oct.
21, 1991) ("we verified in the 1987 review that the Government of
India officially terminated the IPRS program with respect to
exports of the subject merchandise to the United States"); Certain
Iron-Metal Castings From India; Final Results of Countervailing
Duty Administrative Review, 55 Fed.Reg. 50,747, 50,750 (Dec. 10,
1990) ("At verification, we established that the EEPC stopped
accepting any IPRS claims filed on shipments of the subject
merchandise exported to the United States after July 1, 1987"). As
stated by the ITA,
there may be instances where . . . a brief period without
reinstatement of a program is too short a time to
conclude that a government is not likely to reinstate the
program. This is particularly true with respect to
orders issued after the January 1, 1995, effective date
of the URAA which instituted the sunset review process.
In those cases, a government may rescind a program in a
period preceding the initiation of the sunset review of
an order, with the intent of reinstating the program
should the order be revoked. In the case of both the
IPRS and the CCS programs, the Indian Ministry of
Commerce terminated the programs prior to the URAA
effective date and several years before the November 1998
initiation of the sunset review of the CVD order on iron-
metal castings. Consequently, in this case, we find it
reasonable to conclude that a sufficient period of time
has lapsed to indicate that the Indian Ministry of
Commerce is not likely to reinstate the IPRS program.
Final Results, p. 8. This court concurs.
II
In the light of the foregoing, the court cannot and
therefore does not conclude that defendant's Final Results of Re-
determination Pursuant to Court Remand (May 25, 2001) are arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law. Hence, they should be affirmed. Judgment
will enter accordingly.
Decided: New York, New York
June 20, 2001
Judge