                                        Slip Op. 99-103

                UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
Taiyuan Heavy Machinery Import       :
and Export Corp.,
                                     :
               Plaintiff,                           Court No. 98-02-00411
                                     :              Before: Barzilay, Judge
                       v.
                                     :
United States of America,
                                     :
               Defendant,
                                     :
                       and
                                     :
Magnesium Corp. of America,
                                     :
               Defendant-Intervenor.
____________________________________:

[Plaintiffs’ Motion for Judgment Upon the Agency Record denied, case dismissed.]

                                                           Decided: October 6, 1999.

Riggle & Craven (David A. Riggle, David J. Craven), for Plaintiff.

David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director, Commercial
Litigation Branch, Civil Division, Department of Justice (Lucius B. Lau); Christine E. Savage,
Attorney Advisor, Office of the Chief Counsel, Department of Commerce, of counsel, for
Defendant.

Baker & Botts, L.L.P. (William D. Kramer, Clifford E. Stevens, Jr.), for Defendant-Intervenor.


                                           OPINION

BARZILAY, JUDGE:

       Plaintiff has moved for Judgment Upon an Agency Record, pursuant to USCIT R. 56.2

contesting certain parts of the Department of Commerce, International Trade Administration’s
Court No. 98-02-00411                                                         Page 2


(“Commerce”) final results in a new shipper administrative review, Pure Magnesium from the

People’s Republic of China: Final Results of the Antidumping Duty New Shipper Administrative

Review, 63 Fed. Reg. 3085 (Jan. 21, 1998) (“Final Results”). The Court has jurisdiction under 28

U.S.C. § 1581(c) (1994).

                                       I.   BACKGROUND

       On May 12, 1995, following an investigation, Commerce published antidumping duty orders

covering imports of pure magnesium from the People’s Republic of China (“PRC”), the Russian

Federation and Ukraine. See Notice of Antidumping Duty Orders: Pure Magnesium from the

People’s Republic of China, the Russian Federation and Ukraine; Notice of Amended Final

Determination of Sales at Less than Fair Value: Antidumping Duty Investigation of Pure Magnesium

From the Russian Federation, 60 Fed. Reg. 25691 (May 12, 1995).                 Plaintiff, a Chinese

manufacturer/exporter of the subject merchandise, requested Commerce to initiate a new shipper

review so that Plaintiff would receive an individually assigned dumping margin instead of the PRC-

wide rate of 108.26%. The period of review (“POR”) was May 1, 1996 - October 31, 1996. See

Final Results at 3085. On October 23, 1997, Commerce published its preliminary results finding that

Plaintiff was selling the subject merchandise at less than fair value and assigned Plaintiff an 83.92%

margin. See Pure Magnesium from the People’s Republic of China: Preliminary Results of

Antidumping Duty New Shipper Administrative Review, 62 Fed. Reg. 55215, 55218 (Oct. 23, 1997)

(“Preliminary Results”). On January 21, 1998, Commerce published its Final Results, lowering the

margin to 69.53%. See Final Results at 3092. Plaintiff timely filed its summons and complaint

pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) (1994) challenging certain aspects of

Commerce’s Final Results.
Court No. 98-02-00411                                                         Page 3


                                  II.   STANDARD OF REVIEW

       In reviewing a challenge to Commerce’s determination in an antidumping administrative

review, the court is to hold unlawful a determination, finding or conclusion by Commerce that is

unsupported by substantial evidence or otherwise not in accordance with law. See 19 U.S.C. §

1516a(b)(1)(B)(i) (1994). Substantial evidence is “such relevant evidence as a reasonable mind

might accept to support a conclusion.” Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938);

accord Matsushita Elec. Indus. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). Furthermore,

“the possibility of drawing two inconsistent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by substantial evidence.” Consolo v Federal

Maritime Comm., 383 U.S. 607, 620 (1966). The court is prohibited from overturning a decision

with which it does not agree provided Commerce’s decision is supported by substantial evidence and

is otherwise in accordance with law. See Kerr-McGee Chemical Corp. v. United States, 21 CIT __,

__, 985 F. Supp. 1166, 1173-74 (1997) (citing Consolo, 383 U.S. at 620), aff’d 185 F.3d 884 (Fed.

Cir. 1999).

                                        III.   DISCUSSION

       Plaintiff argues that Commerce failed to follow its regulations in several respects and that

this failure was prejudicial. Plaintiff asserts Commerce erred by not addressing four of the sixteen

points contained in Plaintiff’s case brief. The four issues Plaintiff claims were not addressed were:

1) the calculation of a normal value (“NV”) that exceeded the world market price by 150-225%; 2)

the acceptance of information without an attached factual certification; 3) the acceptance of material

requesting confidential treatment that did not state reasons for proprietary treatment; and 4) the

acceptance of untimely submissions.
Court No. 98-02-00411                                                        Page 4


A.      Plaintiff’s Argument Concerning World Market Prices Did Not Raise a Material Issue
        That Commerce Needed to Address in the Final Results.

        Commerce is required to publish notice of its determinations in the Federal Register

containing “the facts and conclusions of law upon which the determination is based . . . .” 19 U.S.C.

§ 1673d(d). The Statement of Administrative Action accompanying the Trade Agreements Act of

1979 explained the publication requirement as limited to material issues of fact or law. See Trade

Agreements Act of 1979, Statements of Administrative Action, H. Doc. No. 96-153 425 (1979),

reprinted in 1979 U.S.C.C.A.N. 381, 693 (1979) (“[A] statement of findings of fact and conclusions

of law on all material issues shall be made available to the Commission, the interested parties and

public.”). The common understanding of material as it is used in this context is “[i]mportant; more

or less necessary; having influence or effect; going to the merits; having to do with the matter, as

distinguished from form.” BLACK’S LAW DICTIONARY 976 (6th ed. 1990). Commerce did not have

to address Plaintiff’s argument about the relationship of world market prices to the constructed NV

because the issue was not material in that it would not have affected the final determination in this

case.

        Even if Commerce were to use the world market price as a check on the NV calculation, the

underlying methodology and results would be the same. In a case involving a non-market economy

country1 (“NME”), Congress has directed Commerce to determine NV “on the basis of the value of

the factors of production utilized in producing the merchandise. . . .” 19 U.S.C. § 1677b(c)(1). The

statute continues by directing Commerce to use the best available information in valuing the factors.

See id. Finally, the statute sets forth a non-exclusive list of factors and the means by which


        1
            Plaintiff did not dispute the PRC’s designation as such.
Court No. 98-02-00411                                                         Page 5


Commerce is to value them. See id. at §§ 1677b(c)(3)-(4). Nowhere does the statute direct

Commerce to compare NV calculated from the factors of production to the world market price. In

fact the nature of the statutory scheme precludes using world market price as a substitute for the

constructed NV.

       What Plaintiff’s argument amounts to is that somehow Commerce failed to use the best

available information to arrive at its calculated NV because NV was out of line with world market

price. Plaintiff does not contend that Commerce should have substituted the world market price for

the calculated NV, only that world market price was a benchmark for accuracy.2 Therefore,

Commerce was required to explain whether it used the best available information in valuing each

factor of production, which, as discussed infra, it did. To do otherwise would contravene the

statutory directive to “determine the normal value of the subject merchandise on the basis of the

value of the factors of production . . . .” 19 U.S.C. § 1677b(c)(1). Thus, the issue of world market

prices as they relate to constructed NV was not material and did not need to be addressed in the Final

Results since the statute directs Commerce specifically to consider whether the values for each factor

of production were based on the best available information.

B.     Procedural Irregularities Did Not Substantially Prejudice Plaintiff.

       The rules in question were not intended to confer important procedural benefits, so for

Plaintiff to prevail on its procedural claims it must demonstrate that it was substantially prejudiced

by Commerce’s actions. See American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539

       2
         The Court does not reach the issue of whether comparing world market price to NV in
an NME case is permissible. The Court notes that the Federal Circuit has affirmed the use of
world market price to value a factor of production, see Nation Ford Chem. Co. v. United States,
166 F.3d 1373, 1378 n.5 (Fed. Cir. 1999), but it has never held it to be a benchmark for NV in an
NME case.
Court No. 98-02-00411                                                          Page 6


(1970) (“‘[I]t is always within the discretion of a court or an administrative agency to relax or modify

its procedural rules adopted for the orderly transaction of business before it when in a given case the

ends of justice require it.” (quoting NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir.

1953)); see also Oy v. United States, 61 F.3d 866, 875 (Fed. Cir. 1995) (quoting American Farm

Lines); Ferro Union, Inc. v. United States, 44 F. Supp.2d. 1310, 1316-17 (CIT 1999) (same).

       Plaintiff’s procedural grievances can be discussed together since they all involve similar

alleged underlying errors. Plaintiff contends that Commerce did not follow its regulations governing

submission of information. If Commerce had rejected all of the nonconforming material, its decision

would have not have been based on substantial evidence on the record. The regulations at issue

govern submission of certifications of factual accuracy,3 business proprietary information4 and

written argument.5

       Plaintiff argues that Commerce’s failure to address its procedural grievances on the record

deprives the court and Plaintiff of understanding the agency’s rationale. The Court does not agree

with the Plaintiff that Commerce had to explain its reasons in the Final Results. An agency is free



       3
          19 C.F.R. § 353.31(i) (1997) provides that “[a]ny interested party which submits factual
information to the Secretary must submit with the factual information the certification [stating
the information is accurate and if submitted by counsel that there is no reason to believe it
contains any material misrepresentations or omissions of fact].”
       4
          19 C.F.R. § 353.32(a)(3) (1997) provides that a person who submits factual information
with a request for proprietary treatment “shall provide a full explanation why each piece of
factual information subject to the request is entitled to proprietary treatment . . . .”

       5
           19 C.F.R. § 353.31(a)(3) provides that “[t]he Secretary will not consider in . . . the final
results, or retain in the record of the proceeding, any factual information submitted after the
applicable time limit. The Secretary will return such information to the submitter with written
notice stating the reason for the return of the information.”
Court No. 98-02-00411                                                         Page 7


to relax its procedural requirements where substantive rights are not affected and absent a showing

of substantial prejudice that decision is not reviewable. See American Farm Lines, 397 U.S. at 538-

539. Therefore, while it was unnecessary for Commerce to address Plaintiff’s procedural complaints

in the Final Results the Court will treat the issue as whether Commerce’s actions substantially

prejudiced Plaintiff.

       Defendant-Intervenor failed to include the requisite certification with a number of

submissions of factual information. On October 27, 1997, pursuant to Commerce’s instructions,

Defendant-Intervenor submitted a certification covering all of the submissions which lacked it. See

Pub. Doc. No. 76, fiche 17 (“A.R.”), at frame 93. Plaintiff recognized the Defendant-Intervenor’s

belated submission of the certification of factual accuracy in its case brief to Commerce. See A.R.

21 at frame 21. However, Plaintiff did not argue that it suffered any harm due to the late submission.

See A.R. 21 at frames 21-22. Furthermore, Commerce’s regulations provide that “[a]t any time

during the proceeding, the Secretary may request written argument on any issue from any interested

party.” 19 C.F.R. § 353.38(a). Since Plaintiff did not make a showing of harm to Commerce and

since Commerce was free to request argument on any issue at any time, Plaintiff has not

demonstrated substantial prejudice.

       Next in the litany of procedural grievances comes Commerce’s failure to reject factual

submissions where Defendant-Intervenor requested proprietary treatment without providing a

reason.6 As both Commerce and Defendant-Intervenor point out, the only party that requested

confidential treatment of its information was the Plaintiff. Any information that Defendant-

       6
          While Defendant argues that Plaintiff failed to exhaust its administrative remedies by
not pointing to specific faulty submissions, the Court assumes arguendo that Plaintiff has
exhausted its administrative remedies on this point.
Court No. 98-02-00411                                                           Page 8


Intervenor submitted which contained Plaintiff’s confidential data had to be submitted pursuant to

a request for confidential treatment. While it would not create much of a burden for Defendant-

Intervenor to have provided this as a reason, it certainly does not constitute substantial harm such

that remand is required, or that the information should be removed from the administrative record.

Commerce’s regulations give the Secretary discretion to return noncompliant factual submissions

but with the understanding that a compliant resubmission may be made. See 19 C.F.R. § 353.32(d).

Commerce’s failure to return the information did not substantially prejudice Plaintiff since

Defendant-Intervenor would have had the opportunity to correct its mistake, and moreover, the

information for which proprietary treatment was requested was Plaintiff’s.

        Finally, Plaintiff argues that Commerce accepted untimely submissions in this case from the

Defendant-Intervenor, petitioner below, while it regularly holds respondents to strict deadlines.

However, the Plaintiff does not claim that in this case it was held to a different standard, nor can it

since Commerce accepted an untimely submission from it. See A.R. 12 at frame 22. A showing that

in other cases Commerce has held respondents to regulatory time limits is insufficient to demonstrate

that substantial prejudice occurred in this case.

        More importantly, Plaintiff claims that Defendant-Intervenor’s untimely submission of its

rebuttal brief denied Plaintiff the opportunity to participate meaningfully in the public hearing

because it was unsure of what constituted confidential information. Plaintiff’s contention in this

regard could demonstrate substantial prejudice, but after review of the transcript of the hearing, the

Court is satisfied no such prejudice resulted. See A.R. 24 at frame 1. Plaintiff did not raise the issue

to Commerce’s hearing examiner until the end of its direct presentation and it did not mention any

specific issues on which it could not comment. See A.R. 24 at frames 37-38. Plaintiff also
Court No. 98-02-00411                                                           Page 9


responded to all of the questions posed to it without mentioning its inability to comment due to the

untimely filing of Defendant-Intervenor’s public rebuttal brief. See A.R. 24 at frames 29-30, 67-68,

70-73. Moreover, Plaintiff cites no specific piece of evidence to the Court that it was unable to

discuss, but rather argues it was subject to a period of confusion shortly before the hearing. Plaintiff

has not demonstrated that it was denied an opportunity to participate meaningfully in the hearing,

nor has it otherwise shown that untimely submissions were accepted by Commerce from Defendant-

Intervenor but rejected by Commerce from it. Accordingly, Plaintiff was not substantially prejudiced

by any of the late filings.

C.      Commerce’s Decision to Use Certain Surrogate Values as the Best Available Information
        Was Supported By Substantial Evidence.

        The Federal Circuit has noted the troubles that surround constructing NV on the basis of the

factors of production, pursuant to 19 U.S.C. § 1677b(c). See e.g., Sigma Corp. v. United States, 117

F.3d 1401, 1408 (Fed. Cir. 1997) (“[T]he process of constructing foreign market value for a producer

in a nonmarket economy country is difficult and necessarily imprecise. . . .”); Nation Ford Chemical

Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999) (quoting Sigma Corp.). While the statute

provides guidelines, Commerce is accorded “wide discretion in the valuation of factors of production

in the application of those guidelines.” Nation Ford Chemical Co., 166 F.3d at 1377 (citing Lasko

Metal Prods., Inc. v. United States, 43 F.3d 1442, 1446 (Fed. Cir. 1994) (internal citations omitted)).

Whether the material Commerce uses constitutes the best available information will vary dependent

on the circumstances. See id.

        On repeated occasions, Commerce has expressed its practice with regard to surrogate price

data. Commerce prefers “to use surrogate price data which is: (1) an average non-export value; (2)

representative of a range of prices within the POR if submitted by an interested party, or most
Court No. 98-02-00411                                                          Page 10


contemporaneous with the POR; (3) product-specific; and (4) tax-exclusive.” Heavy Forged Hand

Tools, Finished or Unfinished, With or Without Handles, From the People’s Republic of China;

Final Results of Antidumping Duty Administrative Reviews, 63 Fed. Reg. 16758, 16759 (Apr. 6,

1998)7 (citing Final Results of Antidumping Duty Administrative Review; Sebacic Acid from the

People’s Republic of China, 62 Fed. Reg. 10530, 10534 (March 7, 1997); see also Notice of Final

Determinations of Sales at Less Than Fair Value: Brake Drums and Brake Rotors From the People’s

Republic of China, 62 Fed. Reg. 9160, 9163 (Feb. 28, 1997) (“[W]e selected the surrogate values

based on the quality and contemporaneity of the data.”); Notice of Final Determination of Sales at

Less Than Fair Value: Melamine Institutional Dinnerware Products from the People’s Republic of

China, 62 Fed. Reg. 1708, 1711 (Jan. 13, 1997) (same); Notice of Final Determinations of Sales at

Less Than Fair Value: Bicycles from the People’s Republic of China, 61 Fed. Reg. 19026, 19030

(Apr. 30, 1996) (same).

       In accordance with 19 U.S.C. § 1677b(c)(4), Commerce chose India and Indonesia as the

most comparable countries to the PRC in terms of overall economic development and because both

were significant producers of comparable merchandise, which Commerce determined to be

aluminum. See Preliminary Results at 55217. The factors of production which Commerce valued

were: raw materials, packing materials, labor, diesel fuel, electricity, overhead, selling, general and

administrative expenses (“SG&A”), and profit. See id. Plaintiff does not dispute Commerce’s

designation of India and Indonesia as appropriate surrogates, but contests the use of certain



       7
          The Court recognizes that the date of initiation in Heavy Forged Hand Tools was
March 18, 1997, see 62 Fed. Reg. 12793, while the date of initiation in the present case was
December 31, 1996. See 61 Fed. Reg. 69067. However the time periods are not sufficiently
separate in time to dissuade the Court that Commerce’s practice was different.
Court No. 98-02-00411                                                        Page 11


information to value various factors.

       1.      Substantial Evidence Supports Commerce’s Valuation of Overhead, SG&A and
               Profit.

       Plaintiff contends that Commerce should not have used a 1996 financial report of Southern

Magnesium and Chemicals Limited because the report did not comport with generally accepted

accounting principals (“GAAP”) in India, the data was inconclusive and significant aberrations

during fiscal year 1996 made the data unreliable. The Final Results state that Commerce used the

financial report over Plaintiff’s objections because it was the most product-specific, more

contemporaneous to the POR, audited by an Indian accounting firm, and there was no evidence that

the data was not reasonably representative of the experience of other Indian producers. See Final

Results at 3088. In reviewing Commerce’s determination the court’s role is to determine “whether

the record adequately supports the decision . . . not whether some other inference could reasonably

have been drawn.” Daewoo Electronics v. United States, 6 F.3d 1511, 1520 (Fed. Cir. 1993)

(citations omitted).

       Commerce’s decision to use the 1996 financial report of Southern Magnesium and Chemicals

is supported by substantial evidence and in accordance with law. An Indian auditor’s report is

attached to the report which states that “proper books of account as required by law have been kept

by the Company so far as appears from our examination of such books.” A.R. 19 at frame 48.

Furthermore, the data was more contemporaneous with the POR and it was more product specific.

The Reserve Bank of India Bulletin, which Plaintiff submitted, although dated November, 1996

reported information from 1990-1993. See A.R. 18 at frame 14. Moreover, the data was for the

processing and manufacturing of metals, chemicals and products thereof. See id. Commerce instead

used data from a producer of the subject merchandise in accordance with its administrative practice.
Court No. 98-02-00411                                                          Page 12


See Notice of Determination of Sales at Less Than Fair Value; Polyvinyl Alcohol from the People’s

Republic of China, 61 Fed. Reg. 14,057, 14,061 (March 29, 1996) (“For valuing such factors as

factory overhead, general and administrative expenses and profit, the Department seeks to base

surrogate values on industry experience closest to the product under investigation.”). Finally,

Plaintiff raised the argument that Southern Magnesium’s data was affected by significant aberrations

during fiscal year 1996, thereby making the data unreliable. See Final Results at 3088. However,

Commerce addressed this in the Final Results, finding that Plaintiff provided no support for its

statement. See id. Thus, Plaintiff failed to point to record evidence on which Commerce could base

a finding that Southern Magnesium’s data was unreliable. Accordingly, Commerce’s determination

was supported by substantial evidence and in accordance with law.

       2.      Substantial Evidence Supports Commerce’s Valuation of Ferrosilicon.

       Plaintiff contests Commerce’s decision to value ferrosilicon by averaging the prices

contained in the Metal Bulletin and the Iron and Steel Newsletter. Plaintiff contends that the Metal

Bulletin did not provide sufficient details or reliable information for the values and that the Iron and

Steel Newsletter and a 1995-1996 financial report of an Indian producer should have been used.

Furthermore, Plaintiff argues that Commerce should not have excluded values for nonmarket

economies because they represented world market prices.

       Commerce’s decision to average values from the Metal Bulletin and the Iron and Steel

Newsletter and to reject the financial report is supported by substantial evidence. Constructing NV

in a NME case is “difficult and necessarily imprecise.” Sigma Corp., 117 F.3d at 1407. Commerce

acted within the guidelines set by the statute in averaging the values contained in the Metal Bulletin

and the Iron and Steel Newsletter and Plaintiff has failed to show that the decision fell outside the
Court No. 98-02-00411                                                       Page 13


wide latitude afforded to Commerce. See Nation Ford Chemical Co., 166 F.3d at 1377. Commerce

chose to average the values from both publications reasoning that the time period in both

publications was neither more nor less contemporaneous than the POR. See Final Results at 3089.

Commerce did not rely on the financial report submitted by Plaintiff because it found the price

aberrationally low compared to the statistics from Monthly Statistics of the Foreign Trade of India

(“Monthly Statistics”) and the Metal Bulletin. See id. Rather than using just the information

contained in the Metal Bulletin, as Defendant-Intervenor desired, Commerce averaged both values,

excluding those from NMEs.

       Furthermore, Commerce’s decision to exclude NMEs is in accordance with its practice and

Congressional intent, and thus in accordance with law. See Tapered Roller Bearings and Parts

Thereof, Finished or Unfinished, From Romania: Final Results of Antidumping Duty Administrative

Review, 62 Fed. Reg. 37194, 37195 (July 11, 1997); see also S. Rep. No. 93-1298, at 174 (1974),

reprinted in 1974 U.S.C.C.A.N. 7186, 7311 (“[T]he supply and demand forces [in state-controlled

economies] do not operate to produce prices, either in the home market or in third countries, which

can be relied upon for comparison purposes.” (emphasis added)); see also H.R. Conf. Rep. 100-576,

at 590 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1623 (when performing a factors of production

assessment, "Commerce shall avoid using any prices which it has reason to believe or suspect may

be dumped or subsidized prices."). Regardless of whether the reported prices were on the “world

market,” Congress’ statements above, made in the context of explaining why a different

methodology applies in an NME case, applies equally to what constitutes the best available

information.
Court No. 98-02-00411                                                           Page 14


        3.      Substantial Evidence Supports Commerce’s Valuation of Dolomite.

        Plaintiff argues that Commerce’s decision to use data from a single company’s financial

report to value dolomite was not based on substantial evidence because single company data is

subject to manipulation. Plaintiff submitted the 1994 Index Numbers of Wholesale Price in India

(“Index Numbers”), which it claimed had more current data making it more contemporaneous to the

POR. Commerce used the financial report because it found the data to be more representative and

more contemporaneous to the POR. See Final Results at 3089. The Index Numbers contained the

averaged and indexed values for three grades of dolomite, Banduan, Lumps (1"-3"), Birmitrapur,

Metallurgical Grade and Birmitrapur, BF Grade (25mm-75mm). See A.R. 18 at frame 23.

Commerce found that the financial report contained the value for metallurgical grade dolomite since

it came from an Indian producer of ferroalloy, which is a metallurgical process. While it might be

possible reasonably to draw another inference from the record on this point, the court is not to disturb

Commerce’s finding unless it is not based on adequate record support. See Daewoo Electronics, 6

F. 3d at 1517-18. Since metallurgical grade dolomite is used in the production of magnesium, the

value contained in the financial report was more specific than the averaged prices contained in the

Index Numbers. Further, Commerce chose to use the financial report over the Index Numbers

because there was no indication of why the prices from 1994 were selected for indexation. See Final

Results at 3088-89. Thus, the Court finds that Commerce’s valuation of dolomite was based on

substantial evidence and was in accordance with law.8


        8
          Plaintiff also asserts Commerce failed to subtract transportation costs from the reported
price for dolomite. Plaintiff failed to cite any evidence to support its position, nor did it
demonstrate that the Index Numbers were ex-factory. Commerce’s decision not to accept a
position espoused through conclusory statements does not render its determination unsupported
by substantial evidence or otherwise not in accordance with law.
Court No. 98-02-00411                                                     Page 15


       4.     Substantial Evidence Supports Commerce’s Valuation of Coal.

       Plaintiff argues that Commerce should have used the value for coal contained in the Index

Numbers. Before Commerce, however, Plaintiff admitted that India had price controls on coal. See

A.R. 10 at frame 75. Accordingly, the values contained in the Index Numbers would reflect such

price controls. Commerce used the April 1995- March 1996 price from Monthly Statistics because

Plaintiff provided no reason for finding the values unreliable.     See Final Results at 3090.

Furthermore, Commerce did not use the Index Numbers because there was no explanation of how

the product-specific indices were determined or why 1994 prices were selected. See Final Results

at 3090. Commerce also found the price reported in the Monthly Statistics more contemporaneous

with the POR. Although Plaintiff maintains that Commerce has a preference for using actual

surrogate data, as opposed to import data, it provides no authority for the statement. In fact,

Commerce has used import statistics when the domestic prices appeared to be governed by price

controls. See Notice of Final Determination of Sales at Less Than Fair Value: Brake Drums and

Rotors from the People’s Republic of China, 62 Fed. Reg. 9,160, 9,169 (Feb. 29, 1997).

Additionally, the Federal Circuit has affirmed Commerce’s use of import prices even when domestic

prices were used to value other factors of production. See Nation Ford Chemical Co., 166 F.3d at

1378. Thus, the Court finds that Commerce’s valuation of coal was based on substantial evidence

and is in accordance with law.

       5.     Substantial Evidence Supports Commerce’s Valuation of Barium Chloride.

       Plaintiff claims that Commerce should have used Indonesian import values instead of data

from United Nations Import Statistics for January - December 1996. The United Nations Import
Court No. 98-02-00411                                                          Page 16


Statistics contain import data from the United States while U.S. export data does not show exports

of barium chloride to India. As a result, Plaintiff maintains that the United Nations data is inherently

suspect because it contains values for products distributed indirectly, which would necessarily be of

greater cost; and therefore, Commerce should have used Indonesian Import Data. Commerce based

its decision to use the United Nations Import Statistics on its finding that it was more

contemporaneous and that the discrepancy between two different countries’ import and export data

could result from various factors which would not mean the data is erroneous. See Final Results at

3090. Commerce also prefers to use data from a single surrogate country whenever possible. See

Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon

Steel Plate from the Russian Federation, 62 Fed. Reg. 61,787, 61,790 (Nov. 19, 1997) (citing Final

Determination of Sales at Less Than Fair Value: Certain Carbon Steel Butt-Weld Pipe Fittings

From the People's Republic of China, 57 Fed. Reg. 21,058, 21,062 (May 18, 1992)). Since there was

no indication that the Indonesian Import Data did not also reflect greater costs due to indirect

shipments, Commerce’s decision to use the United Nations Import Statistics was based on

substantial evidence and was in accordance with law.

       6.      Substantial Evidence Supports Commerce’s Valuation of Electricity.

       Plaintiff proposed that Commerce use a 1995 value for electricity from the Confederation

of India Industrial Handbook because it provided electricity rates for rural areas in India and

Plaintiff’s plant is located in a rural area in China. Commerce instead used an August 1996 price

for electricity in India reported in Business World because it was more contemporaneous with the

POR. Furthermore, Commerce based its decision on the fact that the Confederation of India

Industrial Handbook listed a rural rate for only one Indian state, which led Commerce to the
Court No. 98-02-00411                                                           Page 17


conclusion that urban and rural rates in India are not different as a whole. See Final Results at 3091.

Plaintiff, again, did not present Commerce with any evidence that the Business World report was

unreliable, rather Plaintiff claimed the publication was one not normally considered by Commerce.

Yet Commerce, in its letter to the parties inviting submissions on the factor valuation, stated it would

use publicly available published information from surrogate countries. See A.R. 18 at frames 4-7.

The Business World report was of the type Commerce notified the parties it would consider and

Commerce was simply faced with choosing one source over another. Plaintiff did not provide any

record support, beyond its own unsupported statements, that the Business World report contained

inaccurate information. Accordingly, Commerce’s decision to use the rate for electricity listed in

Business World was based on substantial evidence and in accordance with law.

        7.      Commerce Deducted Sales and Excise Taxes Where Appropriate.

        Plaintiff contends that Commerce failed to deduct taxes from surrogate values assigned to

raw materials. Commerce addressed this issue in the Final Results and deducted an amount for

excise and sales tax from the value for sulfuric acid. See Final Results at 3091. However,

Commerce did not deduct sales and excise taxes from any of the other raw material values because

its practice is only to remove such values when there is an affirmative indication of their presence.

See id. Plaintiff did not point to any specific evidence indicating that the values contained excise

and sales tax, instead it relied on general information concerning Indian tax practices. Since Plaintiff

did not present information about a specific surrogate value containing excise and sales tax,

Commerce’s decision to deduct excise and sales tax from the surrogate value for sulfuric acid and

no others is based on substantial evidence and is in accordance with law.
Court No. 98-02-00411                                                         Page 18


D.      The Court Will Not Consider the Effect of the International Trade Commission’s Remand
        Determination.


        Plaintiff urges the court to recognize the International Trade Commission’s (“ITC”)

determination in Magnesium from Ukraine, USITC Pub. 3113, Inv. No. 731-TA-696-698 (Views

on Remand) (June 1998).9 Plaintiff claims that the court has jurisdiction under 28 U.S.C. § 1581(i).

However, Plaintiff did not include this cause of action in its complaint, nor did it seek leave to

amend its complaint. Because the underlying claim presents a number of complex jurisdictional and

substantive issues, it would be an abuse of discretion for the court to amend the complaint sua sponte

or to read it in such a way that would effectively amend it. Furthermore, the statute of limitations

for claims under 28 U.S.C. § 1581(i) is two years, see 28 U.S.C. § 2636(i), therefore Plaintiff has

the ability to file a separate action if it desires to pursue the matter.

        USCIT R. 15(a) provides that after the time for amending of right has passed “a party may

amend the party’s pleading only by leave of court or by written consent of the adverse party; and

leave shall be freely given when justice so requires.” Even in instances where leave to amend is

sought, the court must examine whether the amendment would cause undue delay or prejudice to the

other party. See Foman v. Davis, 371 U.S. 178, 182 (1962); accord Intrepid v. Pollock, 907 F.2d

1125, 1128 (Fed. Cir. 1990), rev’d on other grounds, 972 F.2d 1355 (Fed. Cir. 1992), Saarstahl AG


        9
          In its remand determination, the ITC found that “an industry in the United States was
not materially injured or threatened with material injury by reason of imports of pure magnesium
from Ukraine . . . .” Magnesium from Ukraine, USITC Pub. 3113, Inv. No. 731-TA-696-698
(Views on Remand) (June 1998). As a result, Commerce has revoked the outstanding
antidumping duty order, but only with respect to Ukraine. See 64 Fed. Reg.46182 (Aug. 24,
1999). The ITC’s original injury determination and its remand decision were based on
cumulated imports from three countries (Russia, Ukraine and China). Therefore, Plaintiff claims
there is no valid antidumping duty order as to any country in light of the ITC’s remand decision.
As discussed, the Court declines to address this matter.
Court No. 98-02-00411                                                               Page 19


v. United States, 20 CIT 1413, 1417, 949 F. Supp. 863, 866 (1996), aff’d in part, rev’d on other

grounds, 177 F.3d 1314 (Fed. Cir. 1999). A party’s inability to present facts or evidence because

of an untimely amendment are considered prejudicial, see Saarstahl, 20 CIT at 1417, 949 F. Supp.

at 865, while in assessing whether delay is undue the court may consider whether a litigant failed to

assert the claim as soon as it was possible to do so. See Saarstahl, 20 CIT at 1417-18, 949 F. Supp.

at 867.

          In this case, Plaintiff altogether has failed to seek leave to amend its complaint. Plaintiff first

included its request for relief on December 22, 1998, when it filed its Motion for Judgment Upon

an Agency Record. The underlying vote that gave rise to Plaintiff’s request was made on June 24,

1998. See 63 Fed. Reg. 33093, 33094 (June 17, 1998). Even if the court’s decision affirming the

ITC on October 20, 1998, is the relevant date for seeking leave to amend the complaint, almost two

months passed without Plaintiff acting. Plaintiff’s failure to seek leave to amend the complaint

deprived the Defendant of the opportunity to oppose the motion and to contest the jurisdictional

issues raised through any number of procedural devices. It would be even more prejudicial for the

Court to read the complaint in a manner that would effectively amend it without providing the

Defendant any briefing.10 In light of the foregoing concerns, it would be an abuse of discretion for

the court either to amend the complaint sua sponte or to consider the issue in any other manner.




          10
            Nor is this a case where the underlying claim for relief could have been gleaned from
the complaint. It is axiomatic that the Federal Rules require only notice pleading. However,
Plaintiff requests the court to order the antidumping duty order to be revoked, a request that the
Defendant simply could not have expected from the complaint.
Court No. 98-02-00411                                                    Page 20


                                    IV.   CONCLUSION

       For the foregoing reasons, the Court denies Plaintiff’s Motion for Judgment Upon an

Agency Record. Judgment will be entered accordingly.




Dated: ___________________                                ___________________________
       New York, NY                                       Judith M. Barzilay
                                                          Judge
