Sinopec Sichuan Vinylon Works v. United States, No. 03-00791 (Ct. Int'l Trade 2007)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 4, 2005.
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Slip Op. 07-88 UNITED STATES COURT OF INTERNATIONAL TRADE ____________________________________ : SINOPEC SICHUAN VINYLON WORKS, : : Plaintiff, : : v. : : UNITED STATES, : : Defendant, : : and : : CELANESE CHEMICALS, LTD., : E.I. DUPONT DE NEMOURS & CO., : : Defendant-Intervenors. : ____________________________________: Before: Judith M. Barzilay, Judge Court No. 03-00791 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 byproduct 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 Dated:______________________ New York, NY /s/ Judith M. Barzilay _____________________ Judge Slip Op. 07-88 UNITED STATES COURT OF INTERNATIONAL TRADE ____________________________________ : SINOPEC SICHUAN VINYLON WORKS, : : Plaintiff, : : v. : : UNITED STATES, : : Defendant, : : and : : CELANESE CHEMICALS, LTD., : E.I. DUPONT DE NEMOURS & CO., : : Defendant-Intervenors. : ____________________________________: Before: Judith M. Barzilay, Judge Court No. 03-00791 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 Dated:_________________________ New York, NY /s/ Judith M. Barzilay _____________________________ Judith M. Barzilay, Judge
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