Sinopec Sichuan Vinylon Works v. United States , 31 Ct. Int'l Trade 823 ( 2007 )

Slip Op. 07-88
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
SINOPEC SICHUAN VINYLON WORKS, :
:
Plaintiff, :
:
v. :
:
UNITED STATES, : Before: Judith M. Barzilay, Judge
: Court No. 03-00791
Defendant, :
:
and :
:
CELANESE CHEMICALS, LTD., :
E.I. DUPONT DE NEMOURS & CO., :
:
Defendant-Intervenors. :
____________________________________:
OPINION
[Department of Commerce’s Final Results sustained.]
Dated: May 30, 2007
Garvey Schubert Barer (Ronald M. Wisla), J. Patrick Briscoe, William E. Perry, for Plaintiff
Sinopec Sichuan Vinylon Works.
Peter D. Keisler, Assistant Attorney General; (Jeanne E. Davidson), Director; (Patricia M.
McCarthy) Assistant Director; (Stephen C. Tosini), Paul D. Kovac, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice; (David M. Spooner), Assistant Secretary for
Import Administration; Arthur D. Sidney, of counsel, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, for Defendant United States.
Wilmer, Cutler, Pickering, Hale & Dorr, LLP (John D. Greenwald), Atman M. Trivedi, Ronald I.
Meltzer, Jack A. Levy, for Defendant-Intervenors Celanese Chemicals, Ltd., & E.I. DuPont de
Nemours & Co.
Court No. 03-00791 Page 2
I. Introduction
This opinion evaluates remand results from the Department of Commerce (“Commerce”
or “the Department”) produced in response to this court’s order in Sinopec Sichuan Vinylon
Works v. United States, Slip Op. 06-191, 2006 WL 3929638 (CIT Dec. 28, 2006) (not reported in
F. Supp.) (“Sinopec III”).1 See generally Final Results of Determination Pursuant to Court
Remand (Dep’t Commerce Apr. 14, 2007) (“Final Results”). In Sinopec III, the court remanded
Commerce’s final determination for the recalculation of Plaintiff Sinopec Sichuan Vinylon
Works’s (“SVW”) “overhead costs for adjustments that comport with Commerce's estimation of
double counting, if any, that may have occurred” in its analysis. Sinopec III, 2006 WL 3929638,
at *4. Additionally, the court ordered Commerce “to provide . . . a well-reasoned explanation for
its final decision.” Id. Because the Department adhered to the court’s order, and for additional
reasons given below, the court sustains Commerce’s Final Results in their entirety.
II. Jurisdiction & Standard of Review
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c). The court
“must sustain ‘any determination, finding or conclusion found’ by Commerce unless it is
‘unsupported by substantial evidence on the record, or otherwise not in accordance with the
law.’” Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996) (quoting 19
U.S.C. § 1516a(b)(1)(B)). Substantial evidence consists of “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Matsushita Elec. Indus. Co.
v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (quoting Consolo v. Fed. Mar. Comm’n, 383
1
Familiarity with the procedural history and reasoning of Sinopec I, 29 CIT __, 366 F.
Supp. 2d 1339 (2005), Sinopec II, Slip Op. 06-78, 2006 WL 1550005 (CIT May 25, 2006) (not
reported in F. Supp.), and Sinopec III is presumed.
Court No. 03-00791 Page 3
U.S. 607, 619–20 (1966)). “‘[T]he possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding from being supported by
substantial evidence.’” Id. (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. at 619–20). The
court therefore “affirms Commerce’s factual determinations so long as they are reasonable and
supported by the record as a whole, even if there is some evidence that detracts from the agency’s
conclusions.” Olympia Indus., Inc. v. United States, 22 CIT 387, 389, 7 F. Supp. 2d 997, 1000
(1998) (citing Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1563 (Fed. Cir. 1984)). It may
not “substitut[e] its judgment for that of the agency.” Hangzhou Spring Washer Co. v. United
States, 29 CIT ___, ___, 387 F. Supp. 2d 1236, 1251 (2005) (citing Koyo Seiko Co. v. United
States, 36 F.3d 1565, 1570 (Fed. Cir. 1994)).
III. Discussion
Pursuant to the court’s instructions in Sinopec III, Commerce determined that “there is no
evidence on the record establishing that the . . . application of [the surrogate’s] financial ratios
resulted in double counting” of SVW’s overhead costs. Final Results at 1. Furthermore, the
Department concluded that its “decision to use [the surrogate’s] data in the calculation of SVW’s
overhead costs without adjustment [i.e., by not extricating the capital costs that the surrogate
incurs when producing acetic acid,2] is consistent with its decision to apply a by-product credit
for SVW’s acetic acid recovery into its figures.” Id. at 1–2.
SVW contests this reasoning and claims that Commerce must remove the by-product
credit from its calculations if the Department cannot make adjustments to the surrogate’s figures
to account for differences between the two firms and thereby lower SVW’s normal value. See
2
SVW purchases its acetic acid.
Court No. 03-00791 Page 4
Pl.’s Comments Commerce’s Third Remand Results 5–6. However, as SVW itself concedes,
“Commerce’s inability to obtain information from a party not participating in the administrative
review[, such as the surrogate,] as well as established case law, prevent Commerce from making
any adjustments to the surrogate producer’s financial ratios.” Pl.’s Comments Commerce’s
Third Remand Results 5; see also Dorbst, Ltd. v. United States, 30 CIT __, __, 462 F. Supp. 2d
1262, 1269 (2006). More importantly, when the Department initially chose SVW’s surrogate, it
judged the two firms to be at an equal level of integration after the incorporation of the by-
product credit. See Treatment of Self-Produced Inputs in the Less Than Fair Value Investigation
on Polyvinyl Alcohol from the People’s Republic of China at 11–12 (Dep’t Commerce Mar. 14,
2003). Thus, Commerce’s use of a by-product credit neither conflicts with its conclusion that
SVW and its surrogate have equal levels of integration, nor requires that the Department make
compensatory adjustments in its calculations to benefit SVW. See Rhodia, Inc. v. United States,
26 CIT 1107, 1110–11, 240 F. Supp. 2d 1247, 1250–51 (2002). Because Commerce has
provided detailed, well-reasoned explanations for its decisions and fulfilled its statutory mandate,
the court affirms these findings. Accord § 1516a(b)(1)(B); see Final Results at 4–7; see also
Comments Def.-Intervenors Final Results Redetermination Pursuant Ct. Remand 2–3.
IV. Conclusion
For the reasons stated above, the Department of Commerce’s Final Results of
Determination Pursuant to Court Remand are sustained.
May 30, 2007 /s/ Judith M. Barzilay
Dated:______________________ _____________________
New York, NY Judge
Slip Op. 07-88
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
SINOPEC SICHUAN VINYLON WORKS, :
:
Plaintiff, :
:
v. :
:
UNITED STATES, : Before: Judith M. Barzilay, Judge
: Court No. 03-00791
Defendant, :
:
and :
:
CELANESE CHEMICALS, LTD., :
E.I. DUPONT DE NEMOURS & CO., :
:
Defendant-Intervenors. :
____________________________________:
JUDGMENT
After careful examination of the Department of Commerce’s Final Results of
Determination Pursuant to Court Remand (Dep’t Commerce Apr.14, 2007); the parties’
responses and replies thereto; and upon due deliberation, the court finds that the determination is
supported by substantial evidence and in accordance with law. Therefore, it is hereby
ORDERED that the Final Results of Determination Pursuant to Court Remand are
SUSTAINED.
May 30, 2007 /s/ Judith M. Barzilay
Dated:_________________________ _____________________________
New York, NY Judith M. Barzilay, Judge