Elkem Metals Co. v. United States

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