PSC VSMPO - Avisma Corp. v. United States , 33 Ct. Int'l Trade 1593 ( 2009 )

Slip-Op. 09-120
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
PSC VSMPO – AVISMA CORPORATION :
and VSMPA – TIRUS, US, INC., :
:
Plaintiffs, :
:
v. :
: Before: Judith M. Barzilay, Judge
UNITED STATES, : Consol. Court No. 08-00321
: Public Version
Defendant, :
:
and :
:
US MAGNESIUM LLC, :
:
Defendant-Intervenor. :
____________________________________:
OPINION & ORDER
[Plaintiffs’ Motion for Judgment on the Agency Record is granted in part and denied in part. The
remaining issues are reserved for adjudication after remand.]
Dated: October 20, 2009
Arent Fox LLP (John M. Gurley, Diana Dimitriuc Quaia, Mark P. Lunn), for the
plaintiffs.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (David S. Silverbrand); Daniel J. Calhoun, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, of counsel, for the defendant.
King & Spalding LLP (Stephen A. Jones, Jeffrey B. Denning), for the defendant-
intervenor.
Hogan & Hartson LLP (Lewis E. Leibowitz, Jonathan T. Stoel), for the amicus curae
Alcoa Inc.
Court No. 08-00321 Page 2
Barzilay, Judge: Plaintiffs PSC VSMPO – AVISMA Corporation (“AVISMA”) and
VSMPA – Tirus, US, Inc. (“Tirus”), (collectively, “Plaintiffs”) and Defendant-Intervenor US
Magnesium LLC (“USM”) move for judgment on the agency record, challenging various aspects
of the Department of Commerce’s (“Department” or Commerce”) final determination in
Magnesium Metal from the Russian Federation: Final Results of Antidumping Duty
Administrative Review, 73 Fed. Reg. 52,642 (Dep’t Commerce Sept. 10, 2008) (“Final Results”).
For the reasons provided below, Plaintiffs’ Motion for Judgment on the Agency Record is
granted in part and denied in part, and the remaining issues are reserved by the court for
adjudication after remand.
I. Background & Procedural History
A. The Industrial Processes at Issue
The industrial processes at issue are at the heart of this case. AVISMA’s facility
produces magnesium metal and titanium sponge, along with other minor products. In the first
processing stage, the mineral carnalite goes through dehydration and electrolysis, which creates
two main outputs: raw magnesium and chlorine gas. Most of the former undergoes further
refinement to become the subject merchandise, pure and alloyed magnesium, which Plaintiffs
sell on the open market. AVISMA uses the latter as a catalyst which reacts with the mineral
ilmenite to create titanium tetrachloride by separating titanium from titanium oxide. The
titanium tetrachloride then is combined with an amount of raw magnesium to strip the chlorine
from the titanium, resulting in titanium and magnesium dichloride. The titanium subsequently
Court No. 08-00321 Page 3
goes through additional processing to become a saleable product; the magnesium dichloride is
separated into chlorine, which is recycled back into the ilmenite separation process, and unusable
raw magnesium.
B. Procedural History
In February 2004, USM filed an antidumping duty petition against imports of magnesium
metal from the Russian Federation. See Notice of Preliminary Determination of Sales at Less
Than Fair Value and Postponement of Final Determination: Magnesium Metal From the
Russian Federation, 69 Fed. Reg. 59,197, 59,197 (Dep’t Commerce Oct. 4, 2004). At the
conclusion of Commerce and the U.S. International Trade Commission’s investigations,
Commerce issued an antidumping duty order covering pure and alloyed magnesium. Notice of
Antidumping Duty Order: Magnesium Metal From the Russian Federation, 70 Fed. Reg.
19,930, 19,930 (Dep’t Commerce Apr. 15, 2005) (“Order”).
Nearly two years later, Commerce published notice of opportunity to request an
administrative review of the Order for the period from April 1, 2006 to March 31, 2007 (“period
of review”). Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity to Request Administrative Review, 72 Fed. Reg. 15,650 (Dep’t Commerce Apr. 2,
2007). Plaintiff AVISMA, a Russian magnesium metal producer, requested a review of its
imports of the subject merchandise, and USM requested a review of the magnesium metal
imports of AVISMA and Solikamsk Magnesium Works, another Russian producer. On May 30,
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2007, Commerce commenced the Second Review of the Order.1 Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for Revocation in Part, 72 Fed. Reg.
29,968 (Dep’t Commerce May 30, 2007).
Commerce published its preliminary results for the Second Review nearly a year later.
Magnesium Metal from the Russian Federation: Preliminary Results of Antidumping Duty
Administrative Review, 73 Fed. Reg. 24,541 (Dep’t Commerce May 5, 2008) (“Preliminary
Results”). In response to the Department’s findings, AVISMA and USM submitted case briefs to
support changes that they believed the Department should incorporate into the Final Results.
Commerce rejected AVISMA’s first, and a portion of its second, brief on the ground that it
contained new factual information, specifically an affidavit from Professor George Foster, an
accounting expert.2 See Pls. Br. App. Tab 8-11; see also Pls. Br. App. Tab 8 Ex. 1 (“Foster
Affidavit”). The Department issued the Final Results on September 10, 2008, wherein Plaintiff
AVISMA received a final antidumping margin of 15.77 percent. Final Results, 73 Fed. Reg. at
52,642-43.
Plaintiffs and USM filed suit in this Court to contest the Final Results. Alcoa Inc. and
Northwest Alloys, Inc. (collectively, “Alcoa”), domestic industrial consumers of the subject
1
Solikamsk Magnesium Works did not participate in the review.
2
According to his affidavit, George Foster has been the Paul L. and Phyllis Wattis
Professor of Management at the Graduate School of Business at Stanford University since 1988.
His academic credentials include a Bachelor of Economics (first class honors and university
medal) and Master of Economics from the University of Sydney, and a Ph.D. in Business
Administration from Stanford University. He has honorary doctorates from the University of
Ghent, Belgium, and the University of Vassa, France. He also is the author of Financial
Statement Analysis (1978 and 1986) and Cost Accounting: A Managerial Emphasis (1987, 1991,
1994, 1997, and 2000), the leading selling text in its area. Foster Aff. ¶¶ 2-3.
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merchandise, filed a motion to appear as amicus curiae, which the court granted. Plaintiffs raise
four objections to the Final Results: that Commerce (1) employed an erroneous method to
allocate joint costs between magnesium and chlorine gas; (2) relied on outdated information
when calculating the chlorine gas’s net realizable value (“NRV”); (3) should have granted a
constructed export price (“CEP”) offset to normal value when it calculated AVISMA’s
antidumping duty margin; and (4) unlawfully rejected the portions of AVISMA’s case brief
containing the Foster Affidavit. Pls. Br. 1-3. Like Plaintiffs, USM contests the method by which
Commerce allocated joint costs between magnesium and chlorine gas. Def.-Int. Br. 1-4. USM
also claims that, if the court affirms the Department’s allocation methodology, the Department
nevertheless erred in its adjustments to the chlorine gas’s NRV. Def.-Int. Br. 1-4.
II. Jurisdiction & Standard of Review
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c). The Court
grants “tremendous deference” to Commerce’s final antidumping determinations due to the
“technical” and “complex” economic and accounting decisions involved, for which the
Department “possess far greater expertise than [the Court].” Fujitsu Gen. Ltd. v. United States,
88 F.3d 1034, 1039 (Fed. Cir. 1996) (quotation marks omitted); accord Thai Pineapple Pub. Co.
v. United States, 187 F.3d 1362, 1367 (Fed. Cir. 1999). The Court will disturb a determination
only if it is “unsupported by substantial evidence on the record, or otherwise not in accordance
with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
Substantial evidence on the record constitutes “less than a preponderance, but more than a
scintilla.” Novosteel SA v. United States, 25 CIT 2, 16, 128 F. Supp. 2d 720, 725 (2001)
(quotation marks & citation omitted), aff’d, 284 F.3d 1261 (Fed. Cir. 2002). It is “such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion” in light of the
entire record, including “whatever fairly detracts from the substantiality of the evidence.” Atl.
Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984) (quotation marks omitted).
This standard necessitates that the Department thoroughly examine the record and “articulate a
satisfactory explanation for its action including a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Ins. Co., 463
U.S. 29, 43 (1983) (quotation marks omitted); accord Bando Chem. Indus., Ltd. v. United States,
16 CIT 133, 137, 787 F. Supp. 224, 227 (1992). That the court may draw two inconsistent
conclusions from the evidence does not preclude Commerce’s ruling from being supported by
substantial evidence. Thai Pineapple Pub. Co., 187 F.3d at 1365; Novosteel SA, 25 CIT at 12,
128 F. Supp. 2d at 730; see FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009)
(“[A] court is not to substitute its judgment for that of the agency . . . .”) (quotation marks &
internal citation omitted).
To evaluate whether a Commerce determination is in accordance with law, the Court
applies the two-step test articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural
Resources Defense Council. 467 U.S. 837 (1984). First, the court determines whether Congress
has spoken directly to the issue at hand. If Congress’s intent is clear, the court and the
Department must “give effect to the unambiguously expressed intent of Congress.” Id. at 843. If
the court finds the relevant statute ambiguous or silent with respect to the specific issue, it must
defer to the Department’s interpretation as long as it is reasonable. See id. This deference
extends to technical methodologies that Commerce may apply to fulfill its statutory mandate.
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Thai Pineapple Pub. Co., 187 F.3d at 1365 (“The methodologies relied upon by Commerce in
making its determinations are presumptively correct.”); see Hynix Semiconductor, Inc. v. United
States, 29 CIT 995, 1000, 391 F. Supp. 2d 1337, 1342 (2005).
III. Discussion
A. Commerce’s Decision Not to Grant a CEP Offset
Plaintiffs challenge Commerce’s decision not to grant a CEP offset to normal value in the
Final Results as “inconsistent with the statute and the facts on the record.” Pls. Br. 2.
1. CEP Offsets
In antidumping actions, the duty imposed is the difference between the price charged for
the subject merchandise in its home market, the “normal value,” and the price charged in the
United States. Micron Tech., Inc. v. United States, 243 F.3d 1301, 1303 (Fed. Cir. 2001). In
cases such as this one, where a foreign producer sells to an affiliated purchaser in the United
States, Commerce calculates the U.S. price using a surrogate value, the CEP. 19 U.S.C.
§ 1677a(b). To ensure a fair comparison, the Department may adjust the normal value and CEP
to place them “at a specific, ‘common’ point in the chain of commerce,” i.e., at the same level of
trade. Micron Tech., Inc., 243 F.3d at 1303 (quotation marks omitted); see 19 U.S.C.
§ 1677b(a)(1)(B)(i).
If Commerce finds that the normal value and CEP differ partially or wholly due to a
level-of-trade difference which “(i) involves the performance of different selling activities; and
(ii) is demonstrated to affect price comparability, based on a pattern of consistent price
differences between sales at different levels of trade in the country in which normal value is
determined,” the Department will modify the normal value to compensate. § 1677b(a)(7)(A);
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accord 19 C.F.R. § 351.412(a)-(b). The party seeking such a level-of-trade adjustment must
demonstrate that one is warranted. Fujitsu Gen. Ltd., 88 F.3d at 1045-46; Corus Staal BV v.
United States, 27 CIT 388, 406, 259 F. Supp. 2d 1253, 1270 (2003), aff’d, 395 F.3d 1343 (Fed.
Cir. 2005); see 19 C.F.R. § 351.401(b)(1).
In some cases, the normal value is at a higher level of trade than the CEP, i.e., the level of
trade in the home market is more advanced than in the U.S. market, but data allowing the
Department to determine how much to adjust the normal value are unavailable. In these
circumstances, the Department grants a CEP offset and reduces the normal value by “the amount
of indirect selling expenses incurred in the country in which normal value is determined on sales
of the foreign like product but not more than the amount of such expenses for which a deduction
is made under [§ 1677a(d)(1)(D)].” § 1677b(a)(7)(B); accord Micron Tech., Inc., 243 F.3d at
1305; § 351.412(f)(1)-(2).
2. Plaintiffs’ Contentions & Analysis
Plaintiffs insist that, when compared to AVISMA’s sales of subject merchandise in the
U.S. market, its sales in the Russian market experience “more marketing functions,” Pls. Br. 8,
and are made at a more advanced level of trade, Pls. Br. 29, and that the overlap in selling
activities between the two markets is “not significant.” Pls. Br. 8. Furthermore, Plaintiffs assert
that there exists no similar level of trade in the home market against which to compare the U.S.
market sales and that, consequently, the Department cannot calculate a level-of-trade adjustment
to compensate for these differences. Pls. Br. 29. Specifically, they note that Tirus conducts
nearly all of the subject merchandise selling functions with respect to end-customers in the U.S.
market, leaving AVISMA with only the costs of order processing and freight and delivery
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charges. Pls. Br. 29-30. By contrast, AVISMA performs all of the more elaborate end-customer
selling functions in the Russian market. Pls. Br. 29-30. To further buttress its argument for a
CEP offset, AVISMA also notes that it has only one customer for its U.S. sales, Tirus, and made
[[ ]] routine ocean freight shipments exclusively of the same product to Tirus during the period
of review. Pls. Br. 31. Meanwhile, AVISMA conducted [[ ]] individual transactions with [[
]] customers in the Russian market, which were composed of wildly varying sizes3 and numerous
different products. Pls. Br. 32. Plaintiffs thus aver that “it is axiomatic” that AVISMA incurs
significantly greater selling expenses in its home market than in the U.S. Pls. Br. 32.
Accordingly, they believe that Commerce should grant them a CEP offset.
Plaintiffs have not met the burden of proof to receive a CEP offset. They provided
Commerce with a document entitled “AVISMA – Selling Functions Chart,” which purports to
list the “Selling Activity / Function” differences between AVISMA’s home market sales to end
users, its sales to Tirus in the U.S., and Tirus’s sales to U.S. customers. Pls. Br. App. Tab 1 Ex.
6. The different levels of activity are described as “NO,” “L,” “M,” “H,” or variations thereof.
Although it appears comprehensive, the chart nowhere indicates the measure by which Plaintiffs
made their evaluations. The chart could refer to the frequency, intensity, cost, or aggregate
volume of sales activity; it is impossible to discern. In other words, the chart does not illuminate
to what degree, if any, the disparity between the normal value and CEP results from differing
levels of trade. Likewise, the data on the number of shipments made to the U.S. provide no
insight when compared to the number of transactions made in Russia. A shipment could contain
3
AVISMA’s home market transactions varied from [[ ]] to [[ ]] metric tons. Pls. Br.
32.
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any number of transactions or a single transaction with any number of shipments. Finally, the
different number of customers for AVISMA’s home market and U.S. sales could lead to
significantly different sales activities, but Plaintiffs have not buttressed this assertion with facts.
Commerce cannot base its decisions on conclusory statements alone. See NSK Corp. v. United
States, Slip Op. 09-91, 2009 Ct. Int’l. Trade LEXIS 98, at *28 (Aug. 31, 2009). Despite their
claims to the contrary, Plaintiffs have not provided the Department with the quantifiable data, or
even logically sound reasoning, that would allow Commerce to grant a CEP offset. Commerce’s
decision not to grant the offset is therefore affirmed.
B. The Foster Affidavit
The Foster Affidavit presents George Foster’s opinion on how the Department should use
data on the record to calculate the NRV of raw magnesium and chlorine gas in AVISMA’s
production process. Plaintiffs first contend that the Department acted unlawfully when it rejected
the affidavit’s inclusion in their case brief on the grounds that the affidavit constitutes untimely
submitted new factual information pursuant to 19 C.F.R. § 351.301(b)(2).4 According to
Plaintiffs, the affidavit “interprets the facts [on the record], rather than substitutes or adds facts,”
Pls. Br. 34, and “corroborates claims and data” previously submitted. Pls. Br. 36. It therefore
falls outside the regulation’s purview because it does not constitute new factual information. Pls.
Br. 36. Plaintiffs also argue that 19 C.F.R. § 351.309(c)(2) requires that the Department take the
Foster Affidavit into consideration.5 Pls. Br. 34. They bolster this assertion with their insistence
4
The deadline for submissions of factual information to the Department for an
administrative review is 140 days after the last day of the anniversary month. § 351.301(b)(2).
5
The regulation states, in relevant part, that “case brief[s] must present all arguments that
continue in the submitter’s view to be relevant to [Commerce]’s final determination or final
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that the Department’s NRV calculation method for magnesium and chlorine gas, which the
Foster Affidavit critiques, first appeared in the Preliminary Results. Pls. Br. 34-35. According
to Plaintiffs, even if the affidavit presents new factual information, without its admission, they
will not receive a fair opportunity to contest the Preliminary Results. Finally, Plaintiffs liken the
contents of the Foster Affidavit to witness testimony and “additional written argument” allowed
at hearings pursuant to 19 C.F.R. § 351.310(d)(2) – hearings that occur after publication of the
preliminary results and well after the submission deadline in § 351.301(b)(2). Pls. Br. 39.
While Plaintiffs’ ultimate conclusion in this instance may be correct, their reasoning is
not. Long-established principles of administrative law imbue agencies with ample discretion to
craft their own rules and procedures, including “the authority to establish and enforce time limits
concerning the submission of written information and data.” Coalition for the Pres. of Am.
Brake Drum & Rotor Aftermkt. Mfrs. v. United States, 23 CIT 88, 94-95, 44 F. Supp. 2d 229, 237
(1999) (citing Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,
544-45 (1978)) (“Am. Brake Drum”). With respect to Commerce’s handling of antidumping
matters in general and § 351.301 specifically, the Court has upheld Commerce’s policy of
establishing time limits for the submission of factual information, because “Commerce clearly
cannot complete its work unless it is able at some point to ‘freeze’ the record and make
calculations and findings based on that fixed and certain body of information.” Id. at 97, 44 F.
Supp. 2d at 239 (quotation marks omitted).6 As already noted, § 351.301(b)(2) sets the deadline
results.” § 351.309(c)(2).
6
The regulation at issue in Am. Brake Drum, 19 C.F.R. § 353.31, now is codified at
§ 351.301.
Court No. 08-00321 Page 12
for the submission of new factual information to Commerce for the final results in administrative
reviews 140 days after the last day of the anniversary month of the order under review, in this
case on September 17, 2007. See Def. Br. 35. Plaintiffs first attempted to submit the Foster
Affidavit on June 12, 2008, well after the deadline. See Pls. Br. App. Tab 8 at 1.
Plaintiffs’ hope to circumvent this deadline by characterizing the Foster Affidavit as
opinion and commentary, rather than new factual information, fails. “[F]actual information” for
the purposes of antidumping proceedings includes: “(i) Initial and supplemental questionnaire
responses; (ii) Data or statements of fact in support of allegations; (iii) Other data or statements
of facts; and (iv) Documentary evidence.” § 351.102(b)(21). The Court has held that expert
opinion analyzing reported information “clearly assumes the weight of evidence” and, as such,
amounts to “[d]ata or statements of fact in support of allegations,” i.e., factual information. Am.
Brake Drum, 23 CIT at 98-99 & n.19, 44 F. Supp. 2d at 240-41 & n.19 (“An expert witness’
testimony . . . is evidence, even though its purpose is to help the fact finder understand the direct
evidence presented.” (brackets, quotation marks & citation omitted)). The Foster Affidavit,
which explicitly aims to guide Commerce in its assessment of data already on the record
unambiguously falls into this category. See Foster Aff. ¶ 1. The court, therefore, typically would
affirm the Department’s decision to exclude the affidavit. See, e.g., Am. Brake Drum, 23 CIT at
98, 44 F. Supp. 2d at 240; Asociacion Colombiana de Exportadores de Flores v. United States,
13 CIT 13, 24-25, 704 F. Supp. 1114, 1124 (1989), aff’d, 901 F.2d 1089 (Fed. Cir. 1990).
However, the circumstances before the court are not typical. As the Department admits in
the Final Results and in its brief, how to calculate the NRV of the chlorine gas in this case is an
issue of first impression for the agency. Def.-Int. Br. App. Tab 20 (“I&D Memo”) at 15 (“We
Court No. 08-00321 Page 13
have not had a joint-product scenario where one of the joint products was used as a catalyst to
facilitate a second joint-product scenario.”); Def. Br. 6-7. Confronted with this blank slate,
Commerce turned to seminal accounting texts, including one co-authored by George Foster, for
guidance. See I&D Memo at 15 n.5; Def. Br. 15-16, 17, 20. Although the Department has wide
latitude to develop procedures to accommodate the shifting economic landscape in which it
operates, the court cannot ignore that a leading accounting expert – one to whom Commerce
frequently turns for guidance7 – has deemed the accounting method used in the Final Results
“clearly inappropriate” and stated that the results from this method “cannot be correct.” Foster
Aff. ¶¶ 5.5, 6.3. In this situation, especially where the Department may establish methodological
precedent for future similar investigations, the court’s role in striking a balance between the need
for agency finality and the mandate for accuracy in antidumping determinations becomes
paramount. Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed. Cir. 2006); see
Mittal Steel USA, Inc. v. United States, Slip. Op. 07-117, 2007 WL 2701369, at *2 (CIT Aug. 1,
2007) (noting Commerce’s “duty to calculate antidumping rates as accurately as possible”);
Helmerich & Payne v. United States, 22 CIT 928, 938, 24 F. Supp. 2d 304, 313 (1998) (“[F]air
7
See, e.g., Notice of Final Determination of Sales at Less Than Fair Value and
Affirmative Final Determination of Critical Circumstances: Certain Orange Juice from Brazil,
71 Fed. Reg. 2183 (Dep’t Commerce Jan. 13, 2006); Notice of Final Determination of Sales at
Less Than Fair Value: Live Swine From Canada, 70 Fed. Reg. 12,181 (Dep’t Commerce Mar.
11, 2005); Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel
Beams From South Africa, 67 Fed. Reg. 35,485 (Dep’t Commerce May 20, 2002); Notice of
Final Determination of Sales at Less Than Fair Value: Certain Softwood Lumber Products
From Canada, 67 Fed. Reg. 15,539 (Dep’t Commerce Apr. 2, 2002); Notice of Final
Determination of Sales at Less Than Fair Value: Pure Magnesium from Israel, 66 Fed. Reg.
49,349 (Dep’t Commerce Sept. 27, 2001); Elemental Sulphur From Canada; Final Results of
Antidumping Finding Administrative Review, 61 Fed. Reg. 8239 (Dep’t Commerce Mar. 4,
1996); Final Determination of Sales at Less Than Fair Value: Canned Pineapple Fruit From
Thailand, 60 Fed. Reg. 29,553 (Dep’t Commerce June 5, 1995).
Court No. 08-00321 Page 14
and accurate determinations are fundamental to the proper administration of our dumping laws.”)
(citation omitted); Bowe-Passat v. United States, 17 CIT 335, 341 (1993) (not reported in F.
Supp.) (same) (citing NSK, Ltd. v. United States, 16 CIT 745, 748, 798 F. Supp. 721, 724 (1992);
Industrial Quimica del Nalon, S.A. v. United States, 13 CIT 1055, 1060, 729 F. Supp. 103, 108
(1989)); H.R. Rep. No. 98-725, at 43 (1984) (“The Committee . . . believes it essential [for] the
proper enforcement of the laws that information used in determining . . . the actual amount of any
. . . antidumping duty to be assessed under outstanding orders [be] accurate to the extent
possible.”); see also Koyo Seiko Co. v. United States, 14 CIT 680, 683, 746 F. Supp. 1108, 1111
(1990) (“[J]udicial authority supports granting a request for remand if it fosters and promotes
fundamental fairness.”) (quotation marks & citation omitted). Consequently, the court finds that
to ensure the intent of the antidumping laws is upheld, the Department should take into account
the Foster Affidavit when considering the best methodology for calculating the NRV for the
chlorine gas. See NEC Home Elecs., Ltd. v. United States, 54 F.3d 736, 743-44 (Fed. Cir. 1995)
(ordering Commerce to reopen record to include and consider expert affidavit submitted after
publication of preliminary determination and remanding determination); see also Jinfu Trading
Co. v. United States, Slip. Op. 07-95, 2007 Ct. Int’l Trade LEXIS 106, at *28-29 (June 13, 2007)
(ordering reopening of administrative record so party may add pertinent information). The court
takes no position on the merits of the issue.
IV. Conclusion
For the foregoing reasons, it is
ORDERED that Plaintiffs’ Motion for Judgment Upon the Agency Record is
GRANTED in part and DENIED in part, that the court reserves the parties’ remaining
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arguments for future determination, and that the case is REMANDED to Commerce for further
proceedings. Specifically, it is
ORDERED that Commerce’s decision not to grant a constructed price export offset is
affirmed; it is further
ORDERED that Commerce admit the Foster Affidavit into the record and fully consider
its arguments upon remand; and it is further
ORDERED that Commerce shall have until January 29, 2010, to file its remand results
with the Court. Plaintiffs and Defendant-Intervenor shall file supplemental responses, if any,
with the Court no later than March 1, 2010. In view of this opinion, the previously scheduled
oral argument of November 18, 2009 is hereby adjourned.
Dated: October 20, 2009 /s/ Judith M. Barzilay
New York, New York Judith M. Barzilay, Judge