E.I. DuPont de Nemours & Co. v. United States

4 F. App'x 929
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 12, 2001
DocketNo. 00-1100
StatusPublished

This text of 4 F. App'x 929 (E.I. DuPont de Nemours & Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E.I. DuPont de Nemours & Co. v. United States, 4 F. App'x 929 (Fed. Cir. 2001).

Opinion

RADER, Circuit Judge.

The United States Court of International Trade sustained the United States Department of Commerce’s Final Results in an administrative review of an antidumping order for PPD-T aramid fibers imported from the Netherlands by Aramid Products V.o.F. (Aramid) and Okzo Nobel Aramid Products Inc. E.I. DuPont de Nemours & Co. v. United States, No. 97-08-01335, 1999 WL 378258 (C.I.T. June 2, 1999) (DuPont IP). The Court of International Trade later sustáined Commerce’s remand results. E.I. DuPont de Nemours & Co. v. United States, No. 97-08-01335, 1999 WL 642408 (C.I.T. Aug. 17, 1999) CDuPont III). Because the Court of International Trade correctly sustained Commerce’s Final Results, this court affirms.

I.

Aramid, a Dutch company, produces the PPD-T aramid fibers at issue, and Akzo Nobel Aramid Products Inc., a United States company, sells those fibers in the United States. Akzo Nobel Aramid Products Inc. is a wholly owned subsidiary of Akzo Nobel Inc., another United States company. Akzo Nobel Inc. is a wholly owned subsidiary of Akzo Nobel N.V., a Dutch company that is also Aramid’s corporate parent. The following chart shows the relationship between these companies;

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In 1994, Akzo Nobel N.V. increased its holding in Aramid from 50% to 95%. E.I. DuPont de Nemours & Co. v. United States, No. 96-11-02509, 1998 WL 42598, at *1 (Ct. Int’l Trade Jan. 29, 1998) (DuPont I). In exchange for this increased equity interest, Akzo Nobel N.V. extinguished its outstanding .loans to Aramid. Id. Under generally accepted Dutch accounting principles, Akzo Nobel N.V. then consolidated Aramid’s opérating results for financial reporting purposes. Id. In subsequent reporting to Commerce, Akzo Nobel N.V. submitted accounting of amortized [931]*931goodwill for this transaction, including (1) write-down of fixed assets, (2) write-off of obsolete inventory and waste disposal, (3) write-down of beginning inventory, and (4) residual goodwill. Id. at *5.

In 1994, Commerce published its initial antidumping duty order for PPD-T aramid fibers from the Netherlands. This 1994 order did not cover the time including or subsequent to the Akzo group’s corporate restructuring. Commerce conducted a first antidumping duty administrative review, which the Court of International Trade sustained over E.I. DuPont de Nemours & Company’s challenges. Id. at *14.

Commerce initiated a second antidumping administrative review covering the period from June 1, 1995 through May 31, 1996. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 61 Fed. Reg. 41,373 (Dep’t Commerce Aug. 8, 1996). In 1997, Commerce issued its Final Results of the second administrative review. Aramid Fiber Formed of Poly Para-Phenylene Terephthalamide from the Netherlands; Final Results of Antidumping Administrative Review, 62 Fed. Reg. 38,058 (Dep’t Commerce July 16,1997) (Final Results). DuPont filed an action in the Court of International Trade, challenging several of Commerce’s findings, including calculating interest expenses with consolidated group financial statements and excluding residual goodwill from the cost of production. The Court of International Trade sustained Commerce’s Final Results in part, adopting the reasoning of DuPont I, and remanded in part. DuPont II, 1999 WL 378258, at *5. The Court of International Trade later sustained Commerce’s remand results. DuPont I, 1998 WL 42598, at * 14. DuPont appeals. This court has jurisdiction under 28 U.S.C. § 1295(a)(5) (1994).

II.

The Court of International Trade reviews Commerce’s decision to determine whether it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994 & Supp. IV 1998). This court reapplies the Court of International Trade’s standard of review to Commerce’s determination. Cemex S.A. v. United States, 133 F.3d 897, 900 (Fed.Cir.1998).

A.

DuPont challenges Commerce’s use of Akzo Nobel N.V.’s consolidated financial statements, rather than Aramid’s individual financial statements, to calculate the interest expense factor for cost of production. DuPont asserts that Commerce’s use of consolidated financial statements contravenes Congressional intent and does not reflect Aramid’s actual costs. DuPont also challenges Commerce’s use of Akzo Nobel Inc.’s consolidated financial statements, rather than Akzo Nobel Aramid Products Inc.’s individual financial statements, to calculate the interest expense factor for indirect selling expense.

If a statute unambiguously expresses the intent of Congress on an issue, this court and the agency must give effect to that intent. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the adminis[932]*932trator of an agency.” Id. at 844, 104 S.Ct. 2778.

The 1994 Uruguay Round Agreements Act (URAA) added 19 U.S.C. § 1677b(f)(l)(A) (1994 & Supp. IV 1998), which governs Commerce’s determination of financing costs for calculating the cost of production. Section 1677b(f)(l)(A) states:

Costs shall normally be calculated based on the records of the exporter or producer of the merchandise, if such records are kept in accordance with generally accepted accounting principles of the exporting country (or the producing country, where appropriate) and reasonably reflect the costs associated with the production and sale of the merchandise. The administering authority shall consider all available evidence on the proper allocation of costs, including that which is made available by the exporter or producer on a timely basis, if such allocations have been historically used by the exporter or producer....

Accordingly, Commerce should normally use the records of the individual exporter or producer of the merchandise. However, this direction to use the records of the specific exporter or producer is not absolute. Commerce should only use those records if they “reasonably reflect the costs associated with the production and sale of the merchandise.” Id. The statute is silent on whether the interest expenses of the exporter or producer “reasonably reflect” the actual costs of production where the exporter or producer is part of a consolidated group of companies under the control of a single member. Accordingly, this court must determine the reasonableness of Commerce’s interpretation of § 1677b (f)(1) (A).

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Related

Aimcor v. United States
69 F. Supp. 2d 1345 (Court of International Trade, 1999)
Cemex, S.A. v. United States
133 F.3d 897 (Federal Circuit, 1998)

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