                        SLIP OP. 01-114

       UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
                              :
GOVERNMENT OF UZBEKISTAN and  :
NAVOI MINING & METALLURGICAL  :
COMBINAT,                     :      Court No. 00-08-00392
                              :
               Plaintiffs,    :
                              :
          v.                  :
                              :
THE UNITED STATES,            :
                              :
               Defendant.     :
______________________________:

[ITA sunset review determination remanded.]


                                     Dated:   August 30, 2001


     White & Case (Carolyn B. Lamm and Adams C. Lee) for
plaintiff.

     Stuart E. Schiffer, Acting Assistant Attorney General,
David M. Cohen, Director, Velta A. Melnbrencis, Assistant
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, David R. Mason, Attorney, Office of
the Chief Counsel for Import Administration, United States
Department of Commerce, of counsel, for defendant.


                               OPINION

     RESTANI, Judge:   This matter is before the court on a motion

for judgment on the agency record pursuant to USCIT Rule 56.2.

Plaintiffs, the Government of Uzbekistan and Navoi Mining &

Metallurgical Combinat (collectively “Uzbeks”), challenge the

determination of the United States Department of Commerce
COURT NO.   00-08-00392                                        PAGE   2


(“Commerce” or “ITA”) pursuant to 19 U.S.C. § 1675(c) (1994)1

(“sunset review”) that dumping of uranium from Uzbekistan is

likely to occur if the antidumping duty discipline is removed.2


      1
        19 U.S.C. § 1675(c)(1) reads, in relevant part, as
follows:

          Notwithstanding subsection (b) of this section and
      except in the case of a transition order defined in
      paragraph (6), 5 years after the date of publication
      of–
              (A) a countervailing duty order (other
           than a countervailing duty order to which
           subparagraph (B) applies or which was issued
           without an affirmative determination of
           injury by the Commission under section 1303
           of this title), an antidumping duty order, or
           a notice of suspension of an investigation,
           described in subsection (a)(1),

                               * * *

      the administering authority and the Commission shall
      conduct a review to determine, in accordance with
      [section 1675a] of this title, whether revocation of
      the countervailing or antidumping duty order or
      termination of the investigation suspended under
      [section 1671c or 1673c] of this title would be likely
      to lead to continuation or recurrence of dumping or a
      countervailable subsidy (as the case may be) and of
      material injury.

      2
        The court has sustained the determination of the
International Trade Commission (“ITC”) that imports of uranium
from Uzbekistan are not likely to injure the United States
industry if the antidumping duty discipline is removed. See Ad
Hoc Comm. of Domestic Uranium Producers v. United States, No. 00-
09-00450, slip op. 01-103 (Ct. Int’l Trade Aug. 14, 2001). A
decision by either ITC or Commerce to terminate the proceedings
pursuant to a sunset review will end the proceedings. 19 U.S.C.
§ 1675(d). At this time a change upon appeal of that decision is
still possible. If the decision to sustain the ITC determination
                                                   (continued...)
COURT NO.   00-08-00392                                             PAGE   3


                                    FACTS

      On December 5, 1991, Commerce initiated an antidumping duty

investigation to determine whether imports of uranium from the

Union of Soviet Socialist Republic (“USSR”) were being or were

likely to be sold in the United States at less-than-fair value

(“LTFV”).     Uranium from the Union of Soviet Socialist Republics,

56 Fed. Reg. 63711 (Dept’ Comm. 1991).        On December 23, 1991, the

U.S. International Trade Commission (“ITC” or “Commission”)

issued an affirmative preliminary injury determination.

      On December 28, 1991, the USSR dissolved and the United

States subsequently recognized the 12 newly independent States

which emerged.     Commerce, nevertheless, determined to continue

the investigation.        That determination was sustained.   See

Techsnabexport, Ltd. v. United States, 16 CIT 420, 795 F. Supp.

428 (1992) (“Techsnabexport I”), and Techsnabexport, Ltd. v.

United States, 16 CIT 855, 802 F. Supp. 469 (1992)

(“Techsnabexport II”).

      Commerce determined that sales of uranium from six of the 12

former republics, including Uzbekistan, were made at LTFV during

the period of investigation, which covered June 1, 1991 through

November 30, 1991.        Uranium From Kazakhstan, Kyrgystan, Russia,

Tajikistan, Ukraine and Uzbekistan; Uranium from Armenia,


      2
      (...continued)
becomes conclusively final, this dispute will be moot.
COURT NO.   00-08-00392                                        PAGE   4


Azerbaijan, Byelarus, Georgia, Moldova and Turkmenistan, 57 Fed.

Reg. 23,380, 23,380, 23,382 (Dep’t Comm. 1992) (“Preliminary

Determination”).     Because it found that the respondents failed to

provide adequate information in a timely manner, Commerce based

its preliminary LTFV calculations upon the best information

otherwise available (“BIA”), which was largely petition data and

which resulted in a cash deposit rate equal to 115.82 percent for

all relevant entries of uranium.    Id. at 23,382, 23,384.

      The investigation of uranium from the countries found to be

selling at LTFV was suspended in October of 1992 because those

countries entered into agreements to restrict the volume of

direct or indirect exports to the United States.3    There is no

allegation that any interested party sought the continuance of

the investigation after notice of suspension as provided in 19

U.S.C. § 1673c(g), or sought an administrative review of the

suspension or of the dumping margin as provided in 19 U.S.C.

§ 1675(a), or a changed circumstances review as provided in 19

U.S.C. § 1675(b).

      On August 2, 1999, Commerce initiated a sunset review of the

suspension agreement on uranium from Uzbekistan.     Initiation of

Five-Year (“Sunset”) Reviews, 64 Fed. Reg. 41,915, 41,915 (Dep’t


      3
        See Uranium from Kazakhstan, Kyrgyzstan, Russia,
Tajikistan, Ukraine, and Uzbekistan, 57 Fed Reg. 49,220, 49,255-
61 (Dep’t Comm. 1992) [hereinafter “Uzbek Suspension Agreement”].
Subsequent amendments to the agreements are not relevant here.
COURT NO.   00-08-00392                                         PAGE   5


Comm. 1999).      In their response to the initiation of the review,

plaintiffs contended, among other things, that procedural defects

in the original investigations prevented their full participation

and denied that subject imports from Uzbekistan were ever dumped

in the United States; that the sunset determination must be based

upon country-specific information for Uzbekistan; and that

Commerce must terminate the suspended investigation because there

was no substantial evidence to support a positive likelihood

determination with respect to Uzbekistan.      In plaintiffs’ view,

there also has been no dumping since entry into the suspension

agreement because sales have been made pursuant to long-term

contracts in which the prices of sales to the United States are

set above comparable U.S. market prices; and Uzbekistan has no

economic incentive to sell at below U.S. market prices.

Plaintiffs also contended that Commerce should find good cause

under 19 U.S.C. § 1675a(c) to consider factors other than the

existing margin and the volume of merchandise before and after

the suspension agreement, and that the Department should allow

them to submit country-specific data.4


      4
            19 U.S.C. § 1675a(c) reads in relevant part as follows:

      (1) In general

      In a review conducted under [section 1675(c)] of this
      title, the administering authority shall determine
      whether revocation of an antidumping duty order or
                                                    (continued...)
COURT NO.   00-08-00392                                         PAGE   6


      On February 18, 2000, Commerce issued Uranium from

Uzbekistan, 65 Fed. Reg. 10,471 (Dep’t Comm. 2000) (prelim.

sunset determ.) [hereinafter “Preliminary Results”].   The

Preliminary Results adopted and incorporated an Issues and

Decision Memorandum for the Sunset Review of Uranium from



      4
       (...continued)
      termination of a suspended investigation under [section
      1673c] of this title would be likely to lead to
      continuation or recurrence of sales of the subject
      merchandise at less than fair value. The administering
      authority shall consider–

      (A) the weighted average dumping margins determined in
      the investigation and subsequent reviews, and

      (B) the volume of imports of the subject merchandise
      for the period before and the period after the issuance
      of the antidumping duty order or acceptance of the
      suspension agreement.

      (2) Consideration of other factors

      If good cause is shown, the administering authority
      shall consider such other price, cost, market, or
      economic factors as it deems relevant.

      (3)    Magnitude of the margin of dumping

      The administering authority shall provide to the
      Commission the magnitude of the margin of dumping that
      is likely to prevail if the order is revoked or the
      suspended investigation is terminated. The
      administering authority shall normally choose a margin
      that was determined under [section 1673d] of this title
      or under [ section 1675(a) or (b)(1)] of this title.


19 U.S.C. §§ 1673d, 1675(a), and 1675(b)(1) are, respectively,
final determinations, periodic review determinations and changed
circumstances review determinations.
COURT NO.   00-08-00392                                         PAGE   7


Uzbekistan (Feb. 28, 2000), P.R. Doc. 1248, Pl.’s App., Tab 4.

In response, plaintiffs submitted a case and rebuttal brief that

again complained about the procedural irregularities in the

original investigation and asserted that Commerce erred in the

Preliminary Results.      Uzbeks Case Brief (Apr. 10, 2000), C.R.

Doc. 1270, Pl.’s App., Tab 10; Uzbeks Rebuttal Brief (Apr. 18,

2000), P.R. Doc. 1281, Pl.’s App., Tab 11.

      On July 5, 2000, Commerce rejected plaintiffs’ arguments in

Uranium from Uzbekistan, 65 Fed. Reg. 41,441 (Dep’t Comm. 2000)

(final sunset determ.) [hereinafter “Final Results”].      The Final

Results adopted and incorporated an Issues and Decision

Memorandum for the Sunset Review of Uranium from Uzbekistan (June

27, 2000), P.R. Doc. 1288, Pl.’s App., Tab 2.


                  JURISDICTION AND STANDARD OF REVIEW


      The court has jurisdiction pursuant to 28 U.S.C. § 1581(c).

In reviewing final determinations in antidumping duty

investigations and reviews, the court will hold unlawful those

agency determinations that are “unsupported by substantial

evidence on the record, or otherwise not in accordance with law.”

19 U.S.C. § 1516a(b)(1)(B)(i).
COURT NO.   00-08-00392                                         PAGE   8


                              DISCUSSION

      This case is sui generis.    It involves the issue of what

procedures are to be followed when an antidumping case is filed

against one country and that country dissolves into numerous

others before the proceedings are concluded.

      In earlier litigation, the court permitted the investigation

of uranium imports from the former Soviet republic to continue

even though the proceedings were commenced against the Soviet

Union and certain deficiencies in responses were attributable to

the break up of the Soviet Union.    It was the court’s

understanding that the individual exporting countries or concerns

would be permitted to submit their own data before adverse

consequences ensued or would receive appropriate consideration or

adjustment due to lack of control from the outset of the

proceedings.     Techsnabexport II, 802 F. Supp. at 473.   Commerce

has done little to adapt its procedures to fit these unique

circumstances and does not attempt to defend its actions on the

basis that the preliminary margin is actually reflective of

dumping at any time by the Uzbeks.     Rather, defendant attempts to

support its decision by claiming that the Uzbeks are technically

barred from raising their arguments.

      Commerce argues that 19 U.S.C. § 1675(c)(3) permits it to

assume that there was dumping even though the proceedings were

suspended, and to adopt the preliminary BIA margin for purposes
COURT NO.   00-08-00392                                           PAGE   9


of its analysis and in order to provide a margin to the ITC.

Commerce seeks to support its conclusion by noting that the

agency could not rely on the margins specified in § 1675a(c)(3),

because there is neither a final determination margin to use nor

any margin available from a review of such a determination.

      It may be that in a more normal case with no § 1675a(c)(3)

margins available, Commerce has the discretion to assume dumping

and to use any preliminary margin that is more than de minimis.

See Policies Regarding the Conduct of Five-year (“Sunset”)

Reviews of Antidumping and Countervailing Duty Orders, 63 Fed.

Reg. 18,871, 18,873 (Dep’t Comm. 1998) (Sunset Policy Bulletin).

The court need not decide whether Commerce may use a preliminary

margin without applying some safeguards or doing further

investigation for purposes of an ordinary sunset review.        This is

not a normal case.        Commerce’s use in this case of the

preliminary margin is not based on substantial evidence or in

accordance with law.        Commerce here abused its discretion when it

used such discretion to deny parties fair opportunity to

participate in a meaningful way.5


      5
        Commerce does not address the Uzbeks’ allegation that
they did not receive notice of the original proceedings until
after the preliminary margin was determined. It is undisputed
that the Uzbeks attempted to submit their own data here and were
rebuffed. Commerce simply refused to consider the possibility
that a re-calculation of the dumping margin would be particularly
appropriate in this case, notwithstanding the fact that the
                                                   (continued...)
COURT NO.   00-08-00392                                         PAGE   10


      It is spurious to argue that the Uzbeks had the chance to

obtain an effective review under 19 U.S.C. §§ 1675(a) or (b) of

the highly adverse margin and to dispute any procedural

deficiencies in such reviews.     In this case there was no

antidumping duty order to review under §§ 1675(a) and (b) because

the suspension agreement interrupted the proceedings, as it was

designed to do.     A section 1675 review of the suspension

agreement in order to obtain a new margin calculation itself

would be meaningless.     Rules governing compliance with and

modification of the suspension agreement are provided for within

the agreement itself.     See Uzbek Suspension Agreement, Arts.

VIII, X, XI, and there is little purpose to focusing on the past

margin arrived at in the extraordinary circumstances present in

this case.6

      Under these circumstances there is more than enough reason

for Commerce to consider factors outside the norm, as it



      5
      (...continued)
Statement of Administrative Action (“SAA”) contemplates that in a
sunset review new margins may be calculated if extraordinary
circumstances exist. SAA, accompanying H.R. Rep. No. 103-826(I),
at 890-91, reprinted in 1994 U.S.C.C.A.N. 4040, 4214.
      6
        Although they arise differently, changed circumstances
reviews and sunset reviews share the purpose of determining
whether continued unfair trade relief is necessary. See Eveready
Battery Co., Inc. v. United States, Slip Op. 99-126 at 20 (CIT
1999). In Eveready, the ITC took the position that an ongoing
sunset review moots a request for a changed circumstance review,
which the court found to be true under the facts of that case.
COURT NO.   00-08-00392                                       PAGE   11


acknowledged it may do under 19 U.S.C. § 1675a(c)(2), and there

is insubstantial reason for proceeding in lockstep with “normal”

procedures.     The Uzbeks have not had a fair opportunity to have

any information considered as to whether their exports were

dumped and at what level such dumping occurred, if it did occur.

Section 1675(c) assumes that dumping occurred.     That assumption

has not been shown to be an acceptable one in this case,

particularly at the level selected.7

      Further, Commerce does not address the Uzbeks’ argument that

its conduct violates the WTO Agreement on Implementation of

Article VI of the General Agreement on Tariffs and Trade (1994)

(“Antidumping Agreement”).8    Rather, it relies on another

erroneous technical bar argument.     It relies on the prohibition

of 19 U.S.C. § 3512(c)(1) against challenges to governmental

action on the basis that it violates a WTO agreement.     Of course,

the Uzbeks are not bringing an action under any WTO agreement,

and they are free to argue that Congress would never have

intended to violate an agreement it generally intended to

implement, without expressly saying so.



      7
        Indeed, the preliminary margin is based on petition data
as to the USSR and not as to Uzbekistan.
      8
        The Uzbeks assert that Articles 6.0 and 11.4 of the
Antidumping Agreement together require in a sunset review that
dumping margins be calculated for individual exporters or
producers.
COURT NO.   00-08-00392                                         PAGE   12


      The court need not resolve whether Commerce’s action

violates the Antidumping Agreement and whether Congress intended

to permit such violation.       Nor will the court address whether the

overall decision that dumping would continue if the antidumping

duty regime were not applicable is supported by substantial

evidence.     As a threshold matter Commerce must support its

finding of a non-de minimis margin before it can embark on a

rational § 1675(c) analysis.       Under the unique facts of this

case, it cannot simply accept the preliminary BIA margin based on

the “normal” rules.       It must use the discretion given to it by

the statute to address an extraordinary situation so as to make

some rational decisions in a fair manner.
COURT NO.   00-08-00392                                        PAGE   13


      This matter is remanded for conduct in accordance with this

opinion.      As Commerce lacks information to provide a reasonably

accurate likely margin for Uzbekistan, it shall gather new data.

Because of the matter discussed in note 2, the parties shall

consult and, within 11 days hereof, propose an order governing

timing of the remand proceedings.



                                  __________________________

                                       Jane A. Restani
                                           Judge



Dated:      New York, New York

            This 30th day of August, 2001.
                                          ERRATUM


Government of Uzbekistan and Navoi Mining & Metallurgical Combinat v. United States, Court
No. 00-08-00392, Slip Op. 01-114, dated August 30, 2001.

       In the first sentence of the second paragraph on page 8, replace the word “republic” with
the word “republics.”
