Psc Vsmpo-Avisma Corp. v. United States
2011 Ct. Intl. Trade LEXIS 26
| Ct. Intl. Trade | 2011Background
- This U.S. Court of International Trade action challenges Commerce's final antidumping duty (AD) results for magnesium metal from Russia, specifically the AFA rate assigned to AVISMA (43.58%).
- AVISMA and VSMPO-AVISMA Corporation and VSMPO-TIRUS, U.S., Inc. filed a motion for judgment on the agency record under Rule 56.2.
- Earlier administrative reviews had varied margins for AVISMA and SMW, with a prior AFA rate of 21.71% for SMW and 43.58% assigned to AVISMA in the final results.
- Commerce based AVISMA’s final AFA rate on the previous review’s highest transaction-specific margin, a form of secondary information requiring corroboration under 19 U.S.C. § 1677e(c).
- The court found Commerce failed adequately to corroborate the 43.58% rate or demonstrate its relevance to AVISMA’s current commercial reality, and remanded for reconsideration.
- The court also noted Commerce departed from its normal practice of using the highest weighted-average margin, instead applying a single-transaction margin, and required a more robust explanation or a different corroborated rate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AVISMA's AFA rate is properly corroborated | AVISMA argues the 43.58% rate is uncorroborated under 1677e(c). | Commerce contends the rate is corroborated as reliable because based on prior data and uncontradicted record information. | Remanded for proper corroboration or replacement with a corroborated rate. |
| Whether the AFA rate is punitive | AVISMA contends the high AFA rate was punitive and not properly justified. | The AFA rate is intended to incentivize cooperation, not punishment; punitive only if not based on facts. | Court leaves undecided on punitive nature; remand for corroboration considerations. |
| Whether the AFA rate is aberrational | AVISMA argues the rate is aberrational due to reliance on an outlier sale with abnormal characteristics. | Commerce investigated and found no link between abnormal sale factors and the high margin. | Court notes lack of conclusive evidence; remand to assess aberrationality with better grounding. |
| Whether Commerce's methodology in selecting the AFA rate departs properly from policy | AVISMA contends Commerce abused practice by relying on a single high transaction margin rather than a weighted-average margin. | Commerce has discretion in uncooperative cases and may depart from prior practice when warranted. | Court finds departure from normal practice requires explanation; remand to justify methodology. |
Key Cases Cited
- PAM S.p.A. v. United States, 582 F.3d 1336 (Fed.Cir.2009) (great discretion in applying AFA margins; corroboration required when secondary information used)
- Gallant Ocean (Thai.) Co., Ltd. v. United States, 602 F.3d 1319 (Fed.Cir.2010) (reliability and commercial reality required for corroboration of AFA data)
- Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 (Fed.Cir.2002) (illustrates corroboration concerns; single sale data may be insufficient)
- JTEKT Corp. v. United States, 675 F.Supp.2d 1206 (CIT 2009) (discusses reliability and relevance of information used for AFA)
- Ferro Union, Inc. v. United States, 44 F.Supp.2d 1310 (CIT 1999) (limits on reliance on outdated or ungrounded margins)
- U.S. Magnesium Corp. v. United States, not applicable (not applicable) (case discusses AFA corroboration principles referenced in opinion)
- Ass'n of Am. Sch. Paper Suppliers v. United States, Slip Op. 08-122, 2008 WL 5102258 (CIT 2008) (agency’s departure explanations and probative alternatives in AFA context)
- Branco Peres Citrus, S.A. v. United States, 173 F.Supp.2d 1363 (CIT 2001) (illustrates evaluating aberrational margins and corroboration standards)