Psc Vsmpo-Avismo Corp. v. United States
2012 U.S. App. LEXIS 15638
| Fed. Cir. | 2012Background
- Avisma manufactures magnesium and titanium sponge at Berezniki; chlorine produced and reused in processes; magnesium and chlorine are joint products in a single production line.
- Commerce determined Avisma’s normal value using constructed value (CV) in the Final Results following the 2006/2007 administrative review, imposing a 15.77% antidumping margin.
- Avisma and US Magnesium challenged those Final Results; Foster Affidavit (June 2008) offered an alternative methodology and was deemed untimely and excluded by Commerce.
- The Trade Court remanded to require Commerce to admit and consider the Foster Affidavit; on remand, Commerce reaffirmed the Final Results in the First Remand Determination.
- On remand, the Trade Court remanded again, directing Commerce to recalculate using Avisma’s broader facility-wide production process; Commerce issued the Second Remand Determination with COP-1.2 and an 8.51% margin.
- The Trade Court sustained the Second Remand Determination; this court reverses, reinstates the Final Results, and remands for entry of judgment reinstating the Final Results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Foster Affidavit admissibility was proper | US Magnesium argued Foster was timely or indispensable to fact-finding. | Commerce and Avisma argued Foster was untimely factual information under 19 C.F.R. § 351.301(b). | Foster Affidavit was properly excluded as untimely factual information. |
| Whether CV methodology for joint products complied with § 1677b(e)(1) | Avisma urged facility-wide (titanium-inclusive) costing to reflect ordinary course of business. | Commerce adopted the magnesium-chlorine split-off valuation at the OPU-2 point, treating both as main products with NRV-based allocations. | Commerce’s methodology is reasonable and supported by substantial evidence; Trade Court erred in mandating facility-wide inclusion. |
| Whether ordinary course of business requires joint-cost allocation across Avisma’s entire production | Avisma contended the ordinary course of business requires inclusion of titanium production. | US Magnesium argued ordinary course limited to normal production of magnesium with standard accounting. | Ordinary course interpretation does not require exclusion of the challenged methodology; CV method upheld under Chevron deference. |
| Whether the COP-1.2 database was the proper cost database | Avisma argued COP-1.2 contains errors and COP-1.1 should be used. | Commerce reasonably selected COP-1.2 for Second Remand. | Issue deemed moot on appeal because Final Results reinstated; cross-appeal not reaching merits. |
Key Cases Cited
- Essar Steel Ltd. v. United States, 678 F.3d 1268 (Fed. Cir. 2012) (agency record and reliance on information from separate investigations; limits on remand guidance)
- Thai Pineapple Pub. Co. v. United States, 187 F.3d 1362 (Fed. Cir. 1999) (Chevron framework and deference to agency methodologies)
- Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034 (Fed. Cir. 1996) (great deference to agency expertise in antidumping accounting methods)
- Vt. Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (U.S. Sup. Ct. 1978) (courts defer to agencies in procedural matters absent exceptional circumstances)