Associated Metals and Minerals Corporation, Appellant, v. Gerald P. Carmen (individually, As Administrator of Thegeneral Services Admin., Acting in His Officialcapacity), et al, 704 F.2d 629 (D.C. Cir. 1983)

Appellant, Associated Metals & Minerals Corp. (Metals), challenges the method by which the General Services Administration (GSA) is disposing of 30,000 tons of surplus tin from the National Defense Stockpile. Congress authorized the disposal of the surplus tin and directed that its disposal "be carried out in accordance with the provisions of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98 et seq.)." Strategic and Critical Materials Transaction Authorization Act of 1979, Pub. L. No. 96-175, Secs. 3, 4, 93 Stat. 1289 (Strategic Materials Act). The Strategic and Critical Materials Stock Piling Act of 1979, Pub. L. No. 96-41, 93 Stat. 319 (Stock Piling Act) provides, inter alia:

To the maximum extent feasible--

(1) competitive procedures shall be used in the acquisition and disposal of [strategic and critical] materials;

(2) efforts shall be made in the acquisition and disposal of such materials to avoid undue disruption of the usual markets of producers, processors, and consumers of such materials and to protect the United States against avoidable loss; and

(3) disposal of such material shall be made for domestic consumption.

50 U.S.C. § 98e(b) (Supp. IV 1980) (emphasis added).

Metals, operator of the sole tin smelter in the United States, brought this action for declaratory and injunctive relief in the United States District Court for the District of Columbia, alleging that GSA was disposing of the surplus tin in a manner which unduly disrupted the usual markets of the smelter in violation of section 98e(b) of the Stock Piling Act. Metals alleged that the GSA disposal practices placed its continued smelter operations in serious jeopardy. On July 22, 1981, the district court denied Metals' request for a preliminary injunction, and on October 21, 1981, on cross-motions for summary judgment, granted summary judgment for GSA. The district court concluded that

[u]ndisputed facts considered in the light of the relevant statutes and their legislative history demonstrate that [GSA's] practice of making off-the-shelf sales ... was contemplated or ratified by Congress and that [GSA has] made the "efforts" required of them by Congress "to avoid undue disruption of the usual markets of producers, processors, and consumers," and that the markets have not, in fact, been unduly disrupted.

Associated Metals & Minerals Corp. v. Carmen, No. 81-1333, slip op. at 1 (D.D.C. Oct. 21, 1981) (footnote omitted).

Congress, when it authorized the disposal of the surplus tin, contemplated that GSA would use the very disposal method of which Metals complains. Furthermore, the record clearly demonstrates that GSA has made considerable efforts to avoid disrupting the tin market while it carries out the congressional directive to dispose of the surplus tin. The district court correctly perceived that Metals' true grievance was with Congress which authorized the disposal of the tin:

The undisputed facts show that if GSA carries out its mandate to sell 30,000 tons [of tin], there will be some market disruption, and [Metals] will make smaller profits ... than it would if GSA were not a seller in the market. But this risk to market tranquility and to the Texas City smelter is attributable to free market forces and the Act of Congress, not to the whim of GSA.

Id. at 3. We affirm the judgment of the district court.

The United States consumes 40,000 to 60,000 tons of refined tin per year-- approximately 27 percent of the free world consumption--or about 150 to 225 tons of refined tin per working day. Three Southeast Asian nations--Malaysia, Thailand, and Indonesia--produce about 65 percent of the world's tin, with the majority of the balance produced in South America, principally Bolivia. The majority of refined tin produced in the Southeast Asian nations is sold in connection with the so-called Penang (Malaysia) Market. An official Penang Market price is established daily by a committee matching various purchase bids to available tonnage. The Penang Market price is the basis upon which most of the world's tin is sold. Brief for Appellant at 3-4.

The United States market for tin is centered in New York. There tin traders, who import refined tin to the United States for resale, arrange sales with consumers of tin. Each trader prices tin independently, and prices and volumes of actual transactions are not published. There are, however, several "New York prices" published regularly which purport to represent actual transactions. The price for refined tin in New York generally reflects its "replacement cost"--the cost of purchasing refined tin at its source and importing it to New York.¹  In other words, the New York price for refined tin is traditionally higher than the Penang Market price. Id. at 4-5.

Metals operates the only tin smelter in the United States, producing approximately 4,000 to 6,000 tons of refined tin per year--about 10 percent of the annual United States consumption. The smelter produces refined tin from tin bearing ores which it purchases abroad and and transports to the United States. The price of such ore is determined by calculating the value of its tin content as refined tin, usually based on the Penang Market price, and subtracting a negotiated amount which reflects the costs of the smelting process. Id. at 7-8. Since the price of the ore reflects the value of its refined tin content on the Penang Market, any profit earned by Metals' smelter derives from the negotiated deduction for smelting costs and the differential between the New York and Penang Market price for refined tin. Id. at 9.² 

In 1979, Congress authorized GSA³  to dispose of 35,000 tons of surplus tin from the National Defense Stockpile. Strategic and Critical Materials Transaction Authorization Act of 1979, supra, Sec. 3. Of this amount, 5,000 tons were to be contributed to the International Tin Council,⁴  id. Sec. 5, and 30,000 tons were to be sold according to the provisions of the Stock Piling Act. Id. Sec. 4. Pursuant to this directive, GSA, beginning on July 1, 1980, offered 500 tons of surplus tin for sale every second week on a sealed bid basis. However GSA quickly found this procedure unacceptable. It rejected virtually all bids because, based on its comprehensive analysis of the New York tin market, the bids were too low and acceptance of such bids would have placed GSA in the undesired role of leading the tin market to substantially lower price levels. Affidavit of Readus B. Long, Director of the Stockpile Disposal Division, GSA p 2 (Sept. 8, 1981) [hereinafter cited as Third Long Affidavit].

Accordingly, on October 22, 1980, GSA announced its intention to sell surplus tin on a daily, "off-the-shelf" basis, the same method it had successfully used in surplus tin sales from July, 1963, until June, 1978. Id. p 5. Under the off-the-shelf method, GSA announces daily at 1:00 PM the price at which it is willing to sell surplus tin; orders are accepted at that price from 1:00 PM until 3:30 PM. Off-the-shelf sales of tin from December 1, 1980, until July 24, 1981, totaled 1,170 tons of refined tin, a rate of approximately 1,800 tons per year. Brief for Appellee at 10-12.

GSA undertakes an elaborate analysis of tin prices in the New York market each day before setting its acceptance price. It converts the reported Penang Market and London prices for refined tin to New York prices by adding estimates for the freight, insurance, interest, and handling expenses necessary to import tin to the United States. These calculated New York prices, as well as published "New York prices" and information obtained from a telephone survey of traders, producers, and consumers, are used to establish the GSA price. Affidavit of Readus B. Long, Director of the Stockpile Disposal Division, GSA paragraphs 12, 15 (July 2, 1981) [hereinafter cited as First Long Affidavit]; Third Long Affidavit p 4 (discussion of calculation of GSA acceptance price for December 3, 1980). GSA strives to minimize the impact of its tin disposal activities on the New York tin market by, inter alia, seeking to avoid price leadership in that market. First Long Affidavit p 16; Affidavit of Readus B. Long, Director of the Stockpile Disposal Division, GSA p 3 (July 10, 1981) [hereinafter cited as Second Long Affidavit]; Third Long Affidavit paragraphs 3, 7.

Metals argues that the off-the-shelf method of selling surplus tin adopted by GSA has unduly disrupted the tin market in violation of the Stock Piling Act, 50 U.S.C. § 98e(b) (2) (Supp. IV 1980).⁵  In particular, Metals claims that the off-the-shelf sales have reduced the New York-Penang Market price differential, the existence of which it argues is critical to the survival of its smelting operation.⁶  Metals also asserts that since revenues from sales of surplus tin are not necessary to pay for currently authorized acquisitions for the National Defense Stockpile, any market disruption attributable to GSA sales of surplus tin is "undue." Metals' contentions are without merit.

At the outset we note that our review of this case is governed by the Administrative Procedure Act. We must determine whether GSA's decision to dispose of surplus tin by the off-the-shelf method of sale was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A) (1976). This inquiry requires the Court to consider whether the decision made by GSA was within the scope of the authority granted by the Stock Piling Act and the Strategic Materials Act, as well as whether that decision "was based on a consideration of the relevant factors and whether there has has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823, 28 L. Ed. 2d 136 (1971). Our review is a narrow one which begins with the presumption that GSA's decision is valid. Certified Color Manufacturers Ass'n v. Mathews, 177 U.S.App.D.C. 137, 146, 543 F.2d 284, 293 (1976). We may not substitute our judgment for that of GSA if a rational basis exists for its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S. Ct. at 823.

The Strategic Materials Act directs GSA to dispose of 30,000 tons of surplus tin in accordance with the provisions of the Stock Piling Act. The Stock Piling Act enjoins GSA "to dispose of materials in the stockpile " when directed to do so by Congress. 50 U.S.C. § 98e(a) (6) (Supp. IV 1980) (emphasis added). "To the maximum extent feasible," consistent with its obligation to dispose of the surplus tin, GSA is obligated to make "efforts ... to avoid undue disruption of the usual markets of producers, processors, and consumers of [tin] and to protect the United States against avoidable loss." Id. Sec. 98e(b) (2) (Supp. IV 1980) (emphasis added). The overriding purpose of Congress in enacting the Strategic Materials Act was to dispose of surplus tin in order to obtain funds to acquire necessary strategic materials.⁷  The "undue disruption" provision of the Stock Piling Act, 50 U.S.C. § 98e(b) (2), must be read to effectuate this overriding congressional purpose.

The record in this case clearly demonstrates that GSA has made considerable efforts to avoid disrupting the New York tin market with its surplus tin disposal program. It conducts an elaborate analysis of that market on a daily basis before establishing its price for tin. It strives to set its prices so as to avoid market leadership. First Long Affidavit paragraphs 12, 15, 16; Second Long Affidavit p 3; Third Long Affidavit paragraphs 3, 4, 7.

Although Metals disputes GSA's contention that it has avoided market leadership, that position cannot be sustained. For if GSA were leading the market with its prices, tin consumers would rush to satisfy their tin requirements with purchases from GSA. In fact, evidence in the record demonstrates that GSA's tin sales have been slow, rarely approaching the level of daily tin consumption in the United States.⁸  Second Long Affidavit p 3. The fact that GSA has been selling tin at a rate of only 1,800 tons per year, rather than at the rate of 10,000 tons per year which GSA predicted for a strong tin market, S.Rep. No. 96-338, 96th Cong., 1st Sess. 6 (1979), indicates that GSA is cognizant of the current weakness in the tin market and has adjusted its tin disposal program to reduce impacts on the tin market.

Furthermore, Congress explicitly ratified GSA's use of the off-the-shelf method for its tin disposal program. The House report on the Strategic Materials Act stated that the surplus tin would "be sold by formal advertising or off the shelf--GSA fixed price daily." H.R.Rep. No. 96-56, 96th Cong., 1st Sess. 3 (1979) (emphasis added). Although Congress clearly was concerned that the market not be disrupted by the disposal of the surplus tin, it repeatedly commended GSA for its success in avoiding such disruption in its past stockpile disposal transactions. Thus, in discussing the "undue disruption" provision of the Stock Piling Act, the Senate report noted that the

committee has no prejudice against the use of [GSA] to manage the stockpiles; to the contrary, industry and other Federal agencies have applauded the GSA stockpile management in the past .... [T]he committee has required that ... disposal not unduly disrupt the usual commodity market. The committee recognizes that every stockpile transaction affects the commodity market to some degree; however ... GSA has been extremely successful in the past at minimizing market impacts and the committee expects that record of performance to continue.

S.Rep. No. 96-201, 96th Cong., 1st Sess. 5 (1979), U.S.Code Cong. & Admin.News 1979, p. 797 (emphasis added).⁹  Among past disposal transactions successfully carried out by GSA was the disposal of 133,570 tons of surplus tin by the off-the-shelf method from July 23, 1963, until June 27, 1978. Third Long Affidavit p 5. Clearly Congress, in directing GSA to sell 30,000 tons of surplus tin, anticipated that GSA would utilize the off-the-shelf method which it had successfully used to dispose of surplus tin in the past.¹⁰ 

Finally, the legislative history of the Stock Piling Act indicates that the reduction in the New York-Penang Market price differential complained of by Metals is not the type of impact on the tin market which concerned Congress when it adopted the "undue disruption" provision. That provision had its origin in the original Strategic and Critical Materials Stock Piling Act, Pub. L. No. 79-520, 60 Stat. 596 (1946), which provided that plans for disposal of surplus stockpile materials were to be

fixed with due regard to the protection of the United States against avoidable loss on the sale or transfer of the material to be released and the protection of producers, processors, and consumers against avoidable disruption of their usual markets ....

Id. Sec. 3(e), 50 U.S.C. § 98b(e) (1976) (codified as amended at 50 U.S.C. § 98e(b) (2) (Supp. IV 1980)) (emphasis added). Congress thought the "undue disruption" provision would prevent recurrence of the indiscriminate dumping of surplus strategic materials which disrupted the commodities markets after World War I.¹¹  The Senate report indicated that the provision was "designed to protect producers and traders against sudden disposals of strategic materials no longer needed in such quantities as might break the market." S.Rep. No. 79-804, 79th Cong., 1st Sess. 5-6 (1945), reprinted in 1946 U.S.Code Cong. Serv. 1288, 1292 (emphasis added). Although the operative language of the "undue disruption" provision was changed slightly in 1979, nothing in the legislative history of the Stock Piling Act indicates that Congress was concerned with anything but significant disruptions in commodity markets caused by dumping of surplus materials.¹² 

Clearly, the reduction in the New York-Penang Market price differential is not the type of break in the market which concerned Congress and led it to enact the "undue disruption" provision. Rather, the change in the price differential is the type of market change which Congress realized would occur any time GSA entered a market to dispose of surplus strategic materials.¹³  Indeed, Metals' argument attributing the reduction in the price differential to GSA's off-the-shelf sales of tin is premised on the mere presence of GSA as a potential seller of tin.¹⁴  Thus Metals' real grievance lies with Congress for having directed GSA to dispose of the surplus tin, rather than with GSA for having adopted the off-the-shelf method of sales to comply with that congressional directive. See Associated Metals & Minerals Corp. v. Carmen, supra, slip op. at 3.¹⁵ 

Nevertheless, Metals argues that any change in the tin market attributable to GSA tin sales is "undue" at this time because GSA does not need the revenues from such sales in order to purchase currently authorized strategic materials for the National Defense Stockpile. In essence, Metals argues that GSA may not sell any surplus materials--all such sales will have some impact on the marketplace¹⁶ --unless it presently needs funds to acquire strategic materials. While the "undue disruption" provision suggests that GSA has the authority to vary the rate at which it sells surplus materials to avoid market disruption,¹⁷  that same provision also suggests that GSA has the authority to sell surplus materials even if the resulting revenue is not immediately required for other stockpile transactions. This reading of the "undue disruption" provision furthers its goal of minimizing market disruptions. For if GSA could not sell the surplus tin until the resulting revenues were required, it might be forced to sell the tin under circumstances which would be more disruptive to the market than result from past and present policies. Nothing in either the Strategic Materials Act or the Stock Piling Act supports imposing the limit on GSA's authority to sell the surplus tin suggested by Metals.¹⁸ III. CONCLUSION

Our review of the record in this case indicates, as analyzed by the district court, that GSA's decision to dispose of the surplus tin by the off-the-shelf method was not arbitrary, capricious, an abuse of discretion, or contrary to law. Rather, that record demonstrates that GSA has made considerable efforts to avoid disrupting the New York tin market while carrying out the congressional mandate to dispose of 30,000 tons of surplus tin. GSA's off-the-shelf method of disposal is the very method which Congress anticipated GSA would use, and which Congress stated had not caused undue disruption of markets in past disposal transactions. Furthermore, the reduction in the New York-Penang Market price differential complained of by Metals is not the type of impact on the market which concerned Congress when it adopted the "undue disruption" provision of the Stock Piling Act. Careful reading of Metals' claim reveals that its grievance is actually with Congress for its authorization of the sale of the surplus tin. The judgment of the district court is affirmed.

Judgment accordingly.

SPOTTSWOOD W. ROBINSON, III, Chief Judge, concurring:

I join in the court's judgment and, save on one point, in its opinion. Respectfully, I disagree with the court's treatment of one aspect of appellant's submission.

In a supplemental brief¹  and again at oral argument, appellant contended that a report of the General Accounting Office, which addresses the plan for management of the National Defense Stockpile during fiscal years 1983-87, demonstrates that the activities GSA contemplates will bring about a violation of the Strategic and Critical Materials Stockpiling Act.²  Appellant also suggested that the report indicates that GSA's tin-disposal practices during the period involved in the present case--July, 1980, through July, 1981--have been inconsistent with the interests of national defense.³ 

I agree with my colleagues that the GAO report does not speak to the question whether GSA sold surplus tin during 1980-81 for any reason unrelated to national defense,⁴  and therefore that it provides no basis for disturbing the judgment under review. I think it unwise, however, to comment on GSA's prospective disposals of tin during 1983-87.⁵  The five-year management program is not before us for review, and any future challenge to it, and the relevance of the GAO report in any contest over it, should be left unprejudiced by today's decision.