MAGNESIUM CORPORATION OF AMERICA, The International Union of Operating Engineers, Local 564, and United Steelworkers of America, Local 8319, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, and JSC Avisma Titanium-Magnesium Works, Solikamsk Magnesium Works, Razno Alloys, Interlink Metals, Inc., and Interlink Metals and Chemicals, S.A., Defendants-Appellees, and Gerald Metals, Inc., Greenwich Metals, Inc., and Hochschild Partners, Defendants-Appellees, and AIOC Corporation and Hunter Douglas Metals, Defendants.
No. 97-1255.
United States Court of Appeals, Federal Circuit.
Jan. 22, 1999.
166 F.3d 1364
Before PLAGER, SCHALL, and GAJARSA, Circuit Judges.
G. Michael Harvey, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for defendant-appellee, United States. On the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Jeffrey M. Telep, Attorney. Of counsel on the brief were Stephen J. Powell, Chief Counsel, Berniece Browne, Senior Counsel, and Robert J. Heilferty, Attorney, Office of the General Counsel, U.S. Department of Commerce, Washington, DC. Of counsel.
John D. Greenwald, Wilmer, Cutler & Pickering, Washington, DC, argued for defendants-appellees, JSC AVISMA Titanium-Magnesium Works, et al. With him on the brief was Leonard M. Shambon. Of counsel was Stuart M. Weiser.
Kimberly R. Young, Holland & Knight, LLP, Washington, DC, for defendants-appellees, Gerald Metals, Inc., et al. With her on the brief was Frederick P. Waite.
GAJARSA, Circuit Judge.
Magnesium Corporation of America, the International Union of Operating Engineers, Local 564, and the United Steelworkers of America, Local 8319, (collectively “MagCorp“) challenge the determination of the Department of Commerce that magnesium from the Russian Federation was not being sold at less than fair market value in the United States. See Notice of Final Determinations of Sales at Less Than Fair Value: Pure Magnesium and Alloy Magnesium From the Russian Federation, 60 Fed.Reg. 16,440 (Mar. 30, 1995) (“Final Determination“); Notice of Amended Antidumping Duty Order: Pure Magnesium From the Russian Federation; Notice of Amended Final Determination of Sales at Less Than Fair Value: Antidumping Duty Investigation of Pure Magnesium from the Russian Federation, 60 Fed.Reg. 65,635 (Dec. 20, 1995) (“Amended Final Determination“); Remand Determination: Magnesium Corp. of America, et al. v. United States, No. 94-06-00789 (Oct. 28, 1996) (“Remand Determination“).
MagCorp initially appealed Commerce‘s Amended and Final Determinations. The Court of International Trade affirmed all but two of Commerce‘s determinations, remanding with respect to (1) the calculation of selling, general and administrative (“SG & A“) expenses, and (2) the treatment of export taxes. See Magnesium Corp. of Am. v. United States, 938 F.Supp. 885 (Ct. Int‘l Trade 1996) (“MagCorp I“). Commerce subsequently issued its “Remand Determination” addressing those two issues. MagCorp appealed the Remand Determination, challenging Commerce‘s refusal to deduct export taxes from the United States price where that tax is charged by a non-market economy government. The Court of International Trade affirmed. See Magnesium Corp. of Am. v. United States, 949 F.Supp. 870 (Ct. Int‘l Trade 1996) (“MagCorp II“).
MagCorp appeals the decision of the Court of International Trade and challenges Commerce‘s Final and Remand Determinations with respect to six issues: (1) electric rates, (2) export taxes, (3) SG & A expenses, (4) factory overhead costs (particularly electrolytic cell rebuild costs), (5) raw dolomite as a surrogate value for processed carnallite, and (6) by-product credits. For the reasons noted, we affirm.
I.
For the purposes of this investigation, Commerce determined that Russia is a non-market economy (“NME“).2 See Final Determination, 60 Fed.Reg. at 16,443. As the Court of International Trade noted, “[t]he prices of the goods produced in an NME are subject to discrepancies which distort their value.” MagCorp I, 938 F.Supp. at 890. Consequently, the costs of production in a non-market economy cannot be used to determine the FMV of any product. Although the Russian producers argued that the Russian magnesium industry is characterized by market-driven prices, and therefore Russian magnesium should be evaluated under the rules established for market economies, Commerce concluded that this industry was not a “market oriented industry.” See Final Determination, 60 Fed.Reg. at 16,443. This conclusion was based, in part, on the fact that the Russian government admits continuing control of the magnesium industry through the Russian Federal Committee on Metallurgy. See id. In addition, the two Russian producers under investigation were, during the period of investigation, still partially owned by the Russian government. See id. Therefore, Russia was properly treated as a non-market economy for this investigation.
For the reasons stated above, Commerce cannot use the costs of production in Russia to determine if a product is being sold at LTFV in the United States. In such a situation, Commerce calculates the FMV according to
II.
In reviewing the judgment of the Court of International Trade, we apply the statutory standard anew to determine if Commerce‘s determinations are supported by substantial evidence. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996). However, we ” ‘will not ignore the informed opinion of the Court of International Trade. That court reviewed the record in considerable detail. Its opinion deserves due respect.’ ” Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed.Cir.1997) (quoting Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed.Cir.1994)). We will sustain any determination, finding, or conclusion of Commerce unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
A. Electrical Expenses
The production of magnesium requires a great deal of electricity, and the cost of that electricity constitutes a significant part of the cost of magnesium production. See MagCorp I, 938 F.Supp. at 892-93. Commerce stated in its Preliminary Determination that it used information reported by the United States Consulate in Belo Horizonte, Brazil. See Preliminary Determination, 59 Fed.Reg. at 55,431. However, the information provided by the Consulate was not publicly available published information (“PAPI“). See MagCorp I, 938 F.Supp. at 892-93. The use of PAPI is preferred in Commerce determinations. See id. at 894. In its Final Determination, Commerce relied on several PAPI sources that reported the electrical rates paid by Brazilian aluminum producers because aluminum production was considered as energy intensive as magnesium production. See Final Determination, 60 Fed.Reg. at 16, 446; see also MagCorp I, 938 F.Supp. at 894-95. The PAPI sources upon which Commerce relied included an American Metal Market article on the rates paid by Brazilian aluminum producers, the Tariff Bulletin published by the Brazilian Ministry of Mines and Energy showing electricity rates provided by Electrobras,3 and the Diaro Official.4 See id. at 893 n. 32.
In addition to PAPI, Commerce also received information from a private firm, CSA Energy Consulting (“CSA“), on the relationship between electric rates and electricity consumption, and between electricity consumption and line tension. See MagCorp I, 938 F.Supp. at 893. MagCorp consulted CSA as well and, based on a letter from a CSA employee, requested correction of alleged ministerial errors in the Final Determination, allegations subsequently rejected by Commerce. See id.
MagCorp challenges the use of electric rate information from the CSA on the grounds that it was not PAPI and that Commerce violated MagCorp‘s due process rights in consulting CSA. The Court of International Trade held that Commerce did not rely on information from CSA in making its final determination. See id. at 894-95. We agree. Commerce did not rely on the CSA information in making its Final Determination because the Final Determination issued before CSA responded to Commerce‘s request for information. See id. at 895. Rather, Commerce relied on the PAPI described above in accordance with its preference for such PAPI.
As for MagCorp‘s due process challenge, although Commerce did not inform MagCorp of its request to CSA or allow MagCorp to review CSA‘s findings, it is clear that MagCorp was well aware of Commerce‘s consultation with CSA. See id. MagCorp had actual knowledge of Commerce‘s communication with CSA and had a full opportunity to comment on the data presented therein. See id. MagCorp was participating fully in the proceedings before Commerce, which is sufficient to overcome any constitutional challenge to the proceeding. See Timken Co. v. United States, 699 F.Supp. 300, 309 (1988), aff‘d, 894 F.2d 385 (Fed.Cir.1990). Therefore, MagCorp‘s due process rights were not violated.
In summary, we affirm the judgment of the Court of International Trade affirming Commerce‘s determination regarding electric rates.
B. Export Taxes
As noted above, the Russian Federation is considered a NME. AVISMA and SMW reported that they paid Russian export taxes and administrative procedure fees on the magnesium that they exported during the period of investigation. Commerce did not deduct the amounts assessed as export taxes and administrative fees from the USP of the magnesium originating from these two producers. See Final Determination, 60 Fed.Reg. at 16,442. Upon MagCorp‘s appeal, the Court of International Trade, at Commerce‘s request, remanded this issue so that Commerce could reevaluate its interpretation of
Significantly, the statute requires export taxes to be deducted from the USP “if [the export tax is] included in such price.” Because the plain language of the statute does not require all export taxes to be deducted from the USP, but requires deduction of only those that are included in the price of the merchandise, the statute clearly contemplates a situation where the export tax is not included in the price of the merchandise. MagCorp‘s proposed reading of the statute would give no discretion to Commerce to determine when export taxes should properly be deducted. Under MagCorp‘s interpretation, any export tax imposed must be deducted from the USP. However, this interpretation would impermissibly read the phrase “if included in such price” out of the statute.
We agree with the interpretation proposed by Commerce in its Remand Determination. In a market economy, Commerce can presume that any tax imposed on the merchandise to be exported will be included in the USP of that merchandise. However, that presumption is not available when the merchandise is produced in a non-market economy. By definition, in a non-market economy, the price of merchandise does not reflect its fair value because the market does not operate on market principles. See
Further, this interpretation based on the plain meaning of the statutory language comports with our previous treatment of real costs of production in non-market economies. In Lasko Metal Products, Inc. v. United States, we found that it was appropriate for Commerce to use certain actual costs of production when calculating a USP for a product produced in a non-market economy. See 43 F.3d 1442, 1445-46 (Fed.Cir.1994). But the costs approved in Lasko were based on “the amount the Chinese manufacturers [under examination] had actually paid on the international market for the supplies they used.” Id. at 1445 (emphasis added). In that case, the costs “actually paid” by the Chinese manufacturers were costs for supplies purchased on the international market, and not intra-non-market economy expenses as in the present case. See id. at 1445-46. The costs of the factors of production for transactions inside China could not be used to calculate the USP because the available information did not permit the fair market value of those costs to be determined as China was a non-market economy. See id. at 1445.
Similarly, the nature of the Russian economy does not permit Commerce to determine whether the export taxes imposed on the exported magnesium were actually included in the price of the magnesium as required by subsection 1677a(d)(2)(B). Export taxes must be treated as an intra-non-market economy expense under these circumstances, making it impossible to determine whether the actual cost of the export tax was included in the price at which the magnesium was sold in the United States.
Therefore, we affirm the judgment of the Court of International Trade affirming Commerce‘s Remand Determination‘s treatment of export taxes.
C. Selling, General and Administrative (“SG & A“) Expenses
The Court of International Trade relied on statutory language in rejecting MagCorp‘s argument. See id. at 904. Subsection 1677b(e)(1)(B) requires the inclusion in the USP of
an amount for general expenses and profit equal to that usually reflected in sales of merchandise of the same general class or kind as the merchandise under consideration which are made by producers in the country of exportation, in the usual wholesale quantities and in the ordinary course of trade.
D. Factory Overhead
In calculating the proper amount of factory overhead, Commerce relied on information obtained during an antidumping investigation of a Brazilian silicomanganese producer. See MagCorp I, 938 F.Supp. at 896. MagCorp argues that Commerce improperly excluded the extra expenses regularly incurred for electrolytic cell rebuilds in Russian magnesium factories which are not regularly incurred in Brazilian silicomanganese factories. The Brazilian manufacturers do not incur cell rebuild costs because they use silicomanganese furnaces, which, according to MagCorp, require less repair. MagCorp couches this as a factual challenge under the “substantial evidence” standard. However, this is a legal issue, not a factual one.
Factory overhead is composed of many elements, and
E. By-Product Credits
Chlorine and potassium chloride are produced as a result of the magnesium production process, and AVISMA and SMW use or sell portions of these by-products. See id. at 899. Based on these facts, Commerce reduced the cost of manufacture of the Russian magnesium accordingly. See id. MagCorp argues that Commerce overstated the value of these credits because it deducted the value of the by-products after processing without properly accounting for the by-product processing costs. MagCorp argues that the cost of processing, marketing, distributing and selling the by-products should be deducted from the by-product credits. However, as the Court of International Trade noted, Commerce allocated the by-product costs to factory overhead, eliminating the need to account for these costs separately. See id. at 900. We agree with the Court of International Trade that Commerce‘s treatment of by-product costs as part of factory overhead is a reasonable interpretation of
F. Surrogate Values for Concentrated Carnallite
In calculating a surrogate price for Russian magnesium, Commerce used unprocessed, raw dolomite as a surrogate for the processed, concentrated carnallite used in magnesium production. See Final Determination, 60 Fed.Reg. at 16,449. Commerce used raw dolomite as the most appropriate surrogate for concentrated carnallite because these materials have a similar magnesium chloride content and a price for concentrated carnallite was not available in Brazil. See id. MagCorp does not challenge that raw dolomite is an appropriate substitute for raw carnallite, but does argue that the comparison to concentrated carnallite is inappropriate because it does not account for the cost incurred by Russian magnesium producers to process raw carnallite into concentrated carnallite.
The Court of International Trade rejected MagCorp‘s argument based on the language of
III.
For the reasons given above, the judgment of the Court of International Trade affirming Commerce‘s Final and Remand Determinations is
AFFIRMED.