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 dumpingCourt No. 02-00232 Page 2

margin of Ri m a Industrial S/A (“Rima”)in light of any adjustments
made in the Final Results of Redetermination Pursuant to C ourt 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 p u b l i s hed 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 exp o r t s a l e s. Id. (citing 63 Fed. Reg. at 42,004). The Court found that Commerce’s determination that VAT paid by Rima sho u l d b e e xcluded 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 offsetti n g 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 usi n g i ts 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. S e e 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 i n l ight of the adjustment made in the Second Re m a n d 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 f o regoing 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 adjustment s to the factual circumstancesCourt 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 YorkUNITED 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 R e s ults of Redetermination Pursuant to Court Remand (Dep’t Commerce Mar. 14, 2007) (“Remand Results”), all oth e r p a pers 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