SLIP OP. 01-114

UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________

:

GOVERNMENT OF UZBEKISTAN and :

NAVOI MINING & METALLURGICAL :

COMBINAT, : Court No. 00-08-00392

:

Plaintiffs, :

:

v. :

:

THE UNITED STATES, :

:

Defendant. :

______________________________:

[ITA sunset review determination remanded.]

Dated: August 30, 2001

White & Case (Carolyn B. Lamm and Adams C. Lee) for

plaintiff.

Stuart E. Schiffer, Acting Assistant Attorney General,

David M. Cohen, Director, Velta A. Melnbrencis, Assistant

Director, Commercial Litigation Branch, Civil Division, United

States Department of Justice, David R. Mason, Attorney, Office of

the Chief Counsel for Import Administration, United States

Department of Commerce, of counsel, for defendant.

OPINION

RESTANI, Judge: This matter is before the court on a motion

for judgment on the agency record pursuant to USCIT Rule 56.2. 

Plaintiffs, the Government of Uzbekistan and Navoi Mining &

Metallurgical Combinat (collectively “Uzbeks”), challenge the

determination of the United States Department of Commerce
COURT NO. 00-08-00392 PAGE 2

1 19 U.S.C. § 1675(c)(1) reads, in relevant part, as

follows:

 Notwithstanding subsection (b) of this section and

except in the case of a transition order defined in

paragraph (6), 5 years after the date of publication

of–

 (A) a countervailing duty order (other

than a countervailing duty order to which

subparagraph (B) applies or which was issued

without an affirmative determination of

injury by the Commission under section 1303

of this title), an antidumping duty order, or

a notice of suspension of an investigation,

described in subsection (a)(1),

* * *

the administering authority and the Commission shall

conduct a review to determine, in accordance with

[section 1675a] of this title, whether revocation of

the countervailing or antidumping duty order or

termination of the investigation suspended under

[section 1671c or 1673c] of this title would be likely

to lead to continuation or recurrence of dumping or a

countervailable subsidy (as the case may be) and of

material injury.

2 The court has sustained the determination of the

International Trade Commission (“ITC”) that imports of uranium

from Uzbekistan are not likely to injure the United States

industry if the antidumping duty discipline is removed. See Ad

Hoc Comm. of Domestic Uranium Producers v. United States, No. 00-

09-00450, slip op. 01-103 (Ct. Int’l Trade Aug. 14, 2001). A

decision by either ITC or Commerce to terminate the proceedings

pursuant to a sunset review will end the proceedings. 19 U.S.C.

§ 1675(d). At this time a change upon appeal of that decision is

still possible. If the decision to sustain the ITC determination

(continued...)

(“Commerce” or “ITA”) pursuant to 19 U.S.C. § 1675(c) (1994)1

(“sunset review”) that dumping of uranium from Uzbekistan is

likely to occur if the antidumping duty discipline is removed.2
COURT NO. 00-08-00392 PAGE 3

2(...continued)

becomes conclusively final, this dispute will be moot.

FACTS

On December 5, 1991, Commerce initiated an antidumping duty

investigation to determine whether imports of uranium from the

Union of Soviet Socialist Republic (“USSR”) were being or were

likely to be sold in the United States at less-than-fair value

(“LTFV”). Uranium from the Union of Soviet Socialist Republics,

56 Fed. Reg. 63711 (Dept’ Comm. 1991). On December 23, 1991, the

U.S. International Trade Commission (“ITC” or “Commission”)

issued an affirmative preliminary injury determination.

On December 28, 1991, the USSR dissolved and the United

States subsequently recognized the 12 newly independent States

which emerged. Commerce, nevertheless, determined to continue

the investigation. That determination was sustained. See

Techsnabexport, Ltd. v. United States, 16 CIT 420, 795 F. Supp.

428 (1992) (“Techsnabexport I”), and Techsnabexport, Ltd. v.

United States, 16 CIT 855, 802 F. Supp. 469 (1992)

(“Techsnabexport II”).

Commerce determined that sales of uranium from six of the 12

former republics, including Uzbekistan, were made at LTFV during

the period of investigation, which covered June 1, 1991 through

November 30, 1991. Uranium From Kazakhstan, Kyrgystan, Russia,

Tajikistan, Ukraine and Uzbekistan; Uranium from Armenia,
COURT NO. 00-08-00392 PAGE 4

3 See Uranium from Kazakhstan, Kyrgyzstan, Russia,

Tajikistan, Ukraine, and Uzbekistan, 57 Fed Reg. 49,220, 49,255-

61 (Dep’t Comm. 1992) [hereinafter “Uzbek Suspension Agreement”]. 

Subsequent amendments to the agreements are not relevant here.

Azerbaijan, Byelarus, Georgia, Moldova and Turkmenistan, 57 Fed.

Reg. 23,380, 23,380, 23,382 (Dep’t Comm. 1992) (“Preliminary

Determination”). Because it found that the respondents failed to

provide adequate information in a timely manner, Commerce based

its preliminary LTFV calculations upon the best information

otherwise available (“BIA”), which was largely petition data and

which resulted in a cash deposit rate equal to 115.82 percent for

all relevant entries of uranium. Id. at 23,382, 23,384.

The investigation of uranium from the countries found to be

selling at LTFV was suspended in October of 1992 because those

countries entered into agreements to restrict the volume of

direct or indirect exports to the United States.3 There is no

allegation that any interested party sought the continuance of

the investigation after notice of suspension as provided in 19

U.S.C. § 1673c(g), or sought an administrative review of the

suspension or of the dumping margin as provided in 19 U.S.C.

§ 1675(a), or a changed circumstances review as provided in 19

U.S.C. § 1675(b).

On August 2, 1999, Commerce initiated a sunset review of the

suspension agreement on uranium from Uzbekistan. Initiation of

Five-Year (“Sunset”) Reviews, 64 Fed. Reg. 41,915, 41,915 (Dep’t
COURT NO. 00-08-00392 PAGE 5

4 19 U.S.C. § 1675a(c) reads in relevant part as follows:

(1) In general

In a review conducted under [section 1675(c)] of this

title, the administering authority shall determine

whether revocation of an antidumping duty order or

(continued...)

Comm. 1999). In their response to the initiation of the review,

plaintiffs contended, among other things, that procedural defects

in the original investigations prevented their full participation

and denied that subject imports from Uzbekistan were ever dumped

in the United States; that the sunset determination must be based

upon country-specific information for Uzbekistan; and that

Commerce must terminate the suspended investigation because there

was no substantial evidence to support a positive likelihood

determination with respect to Uzbekistan. In plaintiffs’ view,

there also has been no dumping since entry into the suspension

agreement because sales have been made pursuant to long-term

contracts in which the prices of sales to the United States are

set above comparable U.S. market prices; and Uzbekistan has no

economic incentive to sell at below U.S. market prices. 

Plaintiffs also contended that Commerce should find good cause

under 19 U.S.C. § 1675a(c) to consider factors other than the

existing margin and the volume of merchandise before and after

the suspension agreement, and that the Department should allow

them to submit country-specific data.4
COURT NO. 00-08-00392 PAGE 6

4(...continued)

termination of a suspended investigation under [section

1673c] of this title would be likely to lead to

continuation or recurrence of sales of the subject

merchandise at less than fair value. The administering

authority shall consider–

(A) the weighted average dumping margins determined in

the investigation and subsequent reviews, and

(B) the volume of imports of the subject merchandise

for the period before and the period after the issuance

of the antidumping duty order or acceptance of the

suspension agreement.

(2) Consideration of other factors

If good cause is shown, the administering authority

shall consider such other price, cost, market, or

economic factors as it deems relevant.

(3) Magnitude of the margin of dumping

The administering authority shall provide to the

Commission the magnitude of the margin of dumping that

is likely to prevail if the order is revoked or the

suspended investigation is terminated. The

administering authority shall normally choose a margin

that was determined under [section 1673d] of this title

or under [ section 1675(a) or (b)(1)] of this title.

19 U.S.C. §§ 1673d, 1675(a), and 1675(b)(1) are, respectively,

final determinations, periodic review determinations and changed

circumstances review determinations.

On February 18, 2000, Commerce issued Uranium from

Uzbekistan, 65 Fed. Reg. 10,471 (Dep’t Comm. 2000) (prelim.

sunset determ.) [hereinafter “Preliminary Results”]. The

Preliminary Results adopted and incorporated an Issues and

Decision Memorandum for the Sunset Review of Uranium from
COURT NO. 00-08-00392 PAGE 7

Uzbekistan (Feb. 28, 2000), P.R. Doc. 1248, Pl.’s App., Tab 4. 

In response, plaintiffs submitted a case and rebuttal brief that

again complained about the procedural irregularities in the

original investigation and asserted that Commerce erred in the

Preliminary Results. Uzbeks Case Brief (Apr. 10, 2000), C.R.

Doc. 1270, Pl.’s App., Tab 10; Uzbeks Rebuttal Brief (Apr. 18,

2000), P.R. Doc. 1281, Pl.’s App., Tab 11.

On July 5, 2000, Commerce rejected plaintiffs’ arguments in

Uranium from Uzbekistan, 65 Fed. Reg. 41,441 (Dep’t Comm. 2000)

(final sunset determ.) [hereinafter “Final Results”]. The Final

Results adopted and incorporated an Issues and Decision

Memorandum for the Sunset Review of Uranium from Uzbekistan (June

27, 2000), P.R. Doc. 1288, Pl.’s App., Tab 2.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). 

In reviewing final determinations in antidumping duty

investigations and reviews, the court will hold unlawful those

agency determinations that are “unsupported by substantial

evidence on the record, or otherwise not in accordance with law.” 

19 U.S.C. § 1516a(b)(1)(B)(i).
COURT NO. 00-08-00392 PAGE 8

DISCUSSION

This case is sui generis. It involves the issue of what

procedures are to be followed when an antidumping case is filed

against one country and that country dissolves into numerous

others before the proceedings are concluded. 

In earlier litigation, the court permitted the investigation

of uranium imports from the former Soviet republic to continue

even though the proceedings were commenced against the Soviet

Union and certain deficiencies in responses were attributable to 

the break up of the Soviet Union. It was the court’s

understanding that the individual exporting countries or concerns

would be permitted to submit their own data before adverse

consequences ensued or would receive appropriate consideration or

adjustment due to lack of control from the outset of the

proceedings. Techsnabexport II, 802 F. Supp. at 473. Commerce

has done little to adapt its procedures to fit these unique

circumstances and does not attempt to defend its actions on the

basis that the preliminary margin is actually reflective of

dumping at any time by the Uzbeks. Rather, defendant attempts to

support its decision by claiming that the Uzbeks are technically

barred from raising their arguments.

Commerce argues that 19 U.S.C. § 1675(c)(3) permits it to

assume that there was dumping even though the proceedings were

suspended, and to adopt the preliminary BIA margin for purposes
COURT NO. 00-08-00392 PAGE 9

5 Commerce does not address the Uzbeks’ allegation that

they did not receive notice of the original proceedings until

after the preliminary margin was determined. It is undisputed 

that the Uzbeks attempted to submit their own data here and were

rebuffed. Commerce simply refused to consider the possibility

that a re-calculation of the dumping margin would be particularly

appropriate in this case, notwithstanding the fact that the

(continued...)

of its analysis and in order to provide a margin to the ITC. 

Commerce seeks to support its conclusion by noting that the

agency could not rely on the margins specified in § 1675a(c)(3),

because there is neither a final determination margin to use nor

any margin available from a review of such a determination. 

It may be that in a more normal case with no § 1675a(c)(3)

margins available, Commerce has the discretion to assume dumping

and to use any preliminary margin that is more than de minimis. 

See Policies Regarding the Conduct of Five-year (“Sunset”)

Reviews of Antidumping and Countervailing Duty Orders, 63 Fed.

Reg. 18,871, 18,873 (Dep’t Comm. 1998) (Sunset Policy Bulletin). 

The court need not decide whether Commerce may use a preliminary

margin without applying some safeguards or doing further

investigation for purposes of an ordinary sunset review. This is

not a normal case. Commerce’s use in this case of the

preliminary margin is not based on substantial evidence or in

accordance with law. Commerce here abused its discretion when it

used such discretion to deny parties fair opportunity to

participate in a meaningful way.5
COURT NO. 00-08-00392 PAGE 10

5(...continued)

Statement of Administrative Action (“SAA”) contemplates that in a

sunset review new margins may be calculated if extraordinary

circumstances exist. SAA, accompanying H.R. Rep. No. 103-826(I),

at 890-91, reprinted in 1994 U.S.C.C.A.N. 4040, 4214.

6 Although they arise differently, changed circumstances

reviews and sunset reviews share the purpose of determining

whether continued unfair trade relief is necessary. See Eveready

Battery Co., Inc. v. United States, Slip Op. 99-126 at 20 (CIT

1999). In Eveready, the ITC took the position that an ongoing

sunset review moots a request for a changed circumstance review,

which the court found to be true under the facts of that case.

It is spurious to argue that the Uzbeks had the chance to

obtain an effective review under 19 U.S.C. §§ 1675(a) or (b) of

the highly adverse margin and to dispute any procedural

deficiencies in such reviews. In this case there was no

antidumping duty order to review under §§ 1675(a) and (b) because

the suspension agreement interrupted the proceedings, as it was

designed to do. A section 1675 review of the suspension

agreement in order to obtain a new margin calculation itself

would be meaningless. Rules governing compliance with and

modification of the suspension agreement are provided for within

the agreement itself. See Uzbek Suspension Agreement, Arts.

VIII, X, XI, and there is little purpose to focusing on the past

margin arrived at in the extraordinary circumstances present in

this case.6 

Under these circumstances there is more than enough reason

for Commerce to consider factors outside the norm, as it
COURT NO. 00-08-00392 PAGE 11

7 Indeed, the preliminary margin is based on petition data

as to the USSR and not as to Uzbekistan.

8 The Uzbeks assert that Articles 6.0 and 11.4 of the

Antidumping Agreement together require in a sunset review that

dumping margins be calculated for individual exporters or

producers.

acknowledged it may do under 19 U.S.C. § 1675a(c)(2), and there

is insubstantial reason for proceeding in lockstep with “normal”

procedures. The Uzbeks have not had a fair opportunity to have

any information considered as to whether their exports were

dumped and at what level such dumping occurred, if it did occur. 

Section 1675(c) assumes that dumping occurred. That assumption

has not been shown to be an acceptable one in this case,

particularly at the level selected.7

Further, Commerce does not address the Uzbeks’ argument that

its conduct violates the WTO Agreement on Implementation of

Article VI of the General Agreement on Tariffs and Trade (1994)

(“Antidumping Agreement”).8 Rather, it relies on another

erroneous technical bar argument. It relies on the prohibition

of 19 U.S.C. § 3512(c)(1) against challenges to governmental

action on the basis that it violates a WTO agreement. Of course,

the Uzbeks are not bringing an action under any WTO agreement,

and they are free to argue that Congress would never have

intended to violate an agreement it generally intended to

implement, without expressly saying so.
COURT NO. 00-08-00392 PAGE 12

The court need not resolve whether Commerce’s action

violates the Antidumping Agreement and whether Congress intended

to permit such violation. Nor will the court address whether the

overall decision that dumping would continue if the antidumping

duty regime were not applicable is supported by substantial

evidence. As a threshold matter Commerce must support its

finding of a non-de minimis margin before it can embark on a

rational § 1675(c) analysis. Under the unique facts of this

case, it cannot simply accept the preliminary BIA margin based on

the “normal” rules. It must use the discretion given to it by

the statute to address an extraordinary situation so as to make

some rational decisions in a fair manner.
COURT NO. 00-08-00392 PAGE 13

This matter is remanded for conduct in accordance with this

opinion. As Commerce lacks information to provide a reasonably

accurate likely margin for Uzbekistan, it shall gather new data. 

Because of the matter discussed in note 2, the parties shall

consult and, within 11 days hereof, propose an order governing

timing of the remand proceedings.

__________________________

Jane A. Restani

 Judge

Dated: New York, New York

 This 30th day of August, 2001.
ERRATUM

Government of Uzbekistan and Navoi Mining & Metallurgical Combinat v. United States, Court

No. 00-08-00392, Slip Op. 01-114, dated August 30, 2001.

In the first sentence of the second paragraph on page 8, replace the word “republic” with

the word “republics.”