Slip Op. 07-79 

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

______________________________

:

ELKEM METALS CO. and :

GLOBE METALLURGICAL, INC., :

:

Plaintiffs, :

: Court No. 02-00232

v. :

:

UNITED STATES, :

:

Defendant, :

:

and :

:

RIMA INDUSTRIAL S/A, :

:

Defendant-Int. :

______________________________:

[Final Results of Redetermination Affirmed. Action dismissed.]

DLA Piper US LLP (William D. Kramer, Martin Schaefermeier)for

Plaintiffs Elkem Metals Co., and Globe Metallurgical, Inc.

Peter D. Keisler, Assistant Attorney General, Civil

Division, United States Department of Justice; David M. Cohen,

Director, Commercial Litigation Branch, Civil Division, United

States Department of Justice (Reginald T. Blades, Jr.); Robert

LaFrankie, Office of Chief Counsel for Import Administration,

United States Department of Commerce, of counsel, for defendant.

Greenberg Traurig, LLP (Philippe M. Bruno, Rosa S. Jeong) for

Defendant-Intervenor, Rima Industrial S/A. 

May 18, 2007

MEMORANDUM OPINION & ORDER

In Elkem Metals Co., v. United States, this Court ordered the

United States Department of Commerce to recalculate the dumping 
Court No. 02-00232 Page 2

margin of Rima Industrial S/A (“Rima”)in light of any adjustments

made in the Final Results of Redetermination Pursuant to Court

Remand, Elkem Metals Co. v. United States, (Dep’t of Commerce Mar.

16, 2005), but applying the methodology promulgated in Silicon Metals

from Brazil, 63 Fed. Reg. 42,001 (Dep’t Commerce Aug. 6, 1998). See

Elkem Metals Co. v. United States, 30 CIT __, Slip Op. 06-189 (Dec.

22, 2006) (not published in the Federal Supplement) (“Elkem III”).

Therein, the Court explained that Commerce’s policy interpreting 19

U.S.C. § 1677b(e) (2000) and calculating constructed value (“CV”)

directs that value added tax (“VAT”) may be included as a “cost” only

to the extent that the exporter/producer does not fully use the VAT

credits generated by export sales. Id. (citing 63 Fed. Reg. at

42,004). The Court found that Commerce’s determination that VAT paid

by Rima should be excluded from constructed value is based on a

permissible construction of § 1677b(e). Id. As a result, and due to

the “deferential lens of Chevron,” the Court did not upset Commerce’s

determination that the Brazilian tax system can have the effect of

offsetting VAT via a VAT credit, and that during the period of

review, Rima, a producer, fully offset its VAT costs by using its VAT

credits. Id. Accordingly, this Court remanded the matter to

Commerce to allow it to recalculate Rima’s dumping margin, but with

instructions to limit its adjustments to circumstances where Rima

fully offset its VAT costs using its VAT credits. Id. 
Court No. 02-00232 Page 3

Pursuant to the Court’s order, on March 14, 2007 Commerce filed

its final remand results. See Final Results of Redetermination

Pursuant to Court Remand (Dep’t Commerce Mar. 14, 2007) (“Remand

Results”). Both the petitioners and Rima had the opportunity to, but

did not file comments to the Remand Results. As such, the Court

treats the remand results as uncontested. In its Remand Results

Commerce “recalculated Rima’s dumping margin in light of the

adjustment made in the Second Remand Redetermination but using the

methodology promulgated in the Final Results and applied in the First

Remand Redetermination.” See id. Specifically, in accordance with

this Court’s remand instructions Commerce “excluded certain VAT paid

by Rima from the calculation of CV . . . [and] limited its

adjustments to . . . where Rima fully offset its VAT costs using VAT

credits.” Id. Within these parameters, Commerce recalculated Rima’s

dumping margin for the period of July 1, 1999 to June 30, 2000. The

rate did not change from the rate announced in its February 12, 2002

final results of the ninth review. Id. 

For foregoing reasons, the Court finds that Commerce complied

with its remand instructions. Commerce recalculated Rima’s dumping

margin pursuant to the remand instructions set forth in Elkem Metals

III. It excluded certain VAT paid by Rima in its calculation of CV

and limited its adjustments to the factual circumstances
Court No. 02-00232 Page 4

circumscribed by the remand order. Therefore, the Court affirms

Commerce’s Final Results of Redetermination Pursuant to Court Remand

and dismisses this action. Judgment shall be entered accordingly. 

/s/ Nicholas Tsoucalas 

NICHOLAS TSOUCALAS

SENIOR JUDGE

 

Dated: May 18, 2007

New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

______________________________

:

ELKEM METALS CO. and :

GLOBE METALLURGICAL, INC., :

:

Plaintiffs, :

: Court No. 02-00232

v. :

:

UNITED STATES, :

:

Defendant, :

:

and :

:

RIMA INDUSTRIAL S/A, :

:

Defendant.-Int. :

______________________________:

JUDGMENT

Upon consideration of the United States Department of Commerce’s

Final Results of Redetermination Pursuant to Court Remand (Dep’t

Commerce Mar. 14, 2007) (“Remand Results”), all other papers filed

and proceedings herein, and Commerce having complied with the Court’s

remand instructions, it is hereby:

ORDERED that the Remand Results are affirmed; and it is further

ORDERED that this action is dismissed.

 /s/ Nicholas Tsoucalas 

NICHOLAS TSOUCALAS 

SENIOR JUDGE 

Dated: May 18, 2007

New York, New York