110 F.Supp.2d 992 (CIT. 2000), 99-03-00149, American Silicon Technologies v. United States

Docket Nº:Court No. 99-03-00149.
Citation:110 F.Supp.2d 992
Party Name:AMERICAN SILICON TECHNOLOGIES, Elkem Metals Company and Globe Metallurgical Inc. Plaintiffs, v. UNITED STATES, Defendant, and Ligas de Aluminio S.A. Defendant-Intervenor. Eletrosilex S.A., Plaintiff, v. United States Defendant, and American Silicon Technologies, Elkem Metals Company and Globe Metallurgical Inc. Defendant-Intervenors. No. SLIP OP. 0
Case Date:July 17, 2000
Court:Court of International Trade
 
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110 F.Supp.2d 992 (CIT. 2000)

AMERICAN SILICON TECHNOLOGIES, Elkem Metals Company and Globe Metallurgical Inc. Plaintiffs,

v.

UNITED STATES, Defendant,

and

Ligas de Aluminio S.A. Defendant-Intervenor.

Eletrosilex S.A., Plaintiff,

v.

United States Defendant,

and

American Silicon Technologies, Elkem Metals Company and Globe Metallurgical Inc. Defendant-Intervenors.

No. SLIP OP. 00-84.

Court No. 99-03-00149.

United States Court of International Trade.

July 17, 2000

Baker & Botts, L.L.P., Washington, DC (William D. Kramer, Martin Schafermeier, Clifford E. Stevens, Jr., Matthew T. West and Lynn M. Schug) for plaintiffs and

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defendant-intervenors American Silicon Technologies, Elkem Metals Company, and Globe Metallurgical Inc.

Verner, Liipfert, Bernhard, McPherson & Hand, Washington, DC (Wayne S. Bishop) for plaintiff Eletrosilex, S.A.

David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Reginald T. Blades, Jr.), and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (John F. Koeppen), of counsel, for defendant.

Dorsey & Whitney LLP, Washington, DC (Philippe M. Bruno, Munford Page Hall, II, and Kevin B. Bedell) for defendant-intervenor Ligas de Aluminio, S.A.

OPINION AND ORDER

MUSGRAVE, Judge.

This is a consolidated action brought pursuant to 28 U.S.C. § 1581(c). Plaintiffs American Silicon Technologies, Elkem Metals Co., and Globe Metallurgical Inc. (collectively "American Silicon"), domestic producers of silicon metal, were petitioners in the administrative proceeding. Plaintiff Eletrosilex S.A., a Brazilian producer of silicon metal, was a respondent in the administrative proceeding. Plaintiffs challenge different aspects of the final results of the sixth administrative review of the antidumping duty order on silicon metal from Brazil, Silicon Metal From Brazil: Final Results of Antidumping Duty Administrative Review, 64 Fed.Reg. 6305 (Feb. 9, 1999) (" Final Results "), issued by the International Trade Administration of the United States Department of Commerce ("Commerce" or "the agency").

Presently before the Court are separate motions for judgment on the agency record pursuant to CIT Rule 56.2 filed by plaintiffs American Silicon and Eletrosilex. American Silicon contests Commerce's decision to calculate a dumping margin for Ligas de Aluminio S.A. ("LIASA") based on a single United States sale, which American Silicon alleges was not a bona fide, arm's-length transaction. Eletrosilex challenges several aspects of Commerce's decision to use total adverse facts available in calculating its dumping margin

Standard of Review

The Court shall uphold Commerce's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law". 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence is "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 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938), and Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). This standard requires "something less than the weight of the evidence, and 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'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). However, substantial evidence supporting an agency determination must be based on the whole record, and a reviewing court must take into account not only that which supports the agency's conclusion, but also "whatever in the record fairly detracts from its weight." Melex USA, Inc. v. United States, 19 CIT 1130, 1132, 899 F.Supp. 632, 635 (1995) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 478, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)).

I. Motion of American Silicon

LIASA was one of four Brazilian silicon metal producers involved in this review and reported only one U.S. sale made during the period of review, July 1, 1996, through June 30, 1997. In its preliminary results, pursuant to 19 U.S.C. § 1673, Commerce calculated a zero percent dumping margin for LIASA based on a

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comparison of the export price for this single U.S. sale and its normal value. American Silicon submitted comments urging Commerce to disregard LIASA's sale on the ground that it was not a bona fide, arm's-length transaction. Commerce, however, concluded that "the information on the record does not support a finding that the sale was not a bona fide transaction" and calculated a final zero percent dumping margin for LIASA. Final Results, 64 Fed.Reg. at 6316.

American Silicon subsequently filed the present action, alleging that Commerce's decision to use the sale to calculate a margin for LIASA is not supported by substantial evidence on the record and is contrary to the agency's precedent.

Allegations

American Silicon first challenges Commerce's finding that the transaction between LIASA and the U.S. buyer was made at arm's-length and negotiated based on their independent interests. See Brief in Support of Plaintiffs' Motion for Judgement Upon the Agency Record ("American Silicon's Brief") at 20-25. American Silicon argues that the parties had a common interest in eliminating LIASA's dumping duty deposit rate and timed the sale to permit LIASA to request a new shipper review. 1 Id. at 24-25.

Second, American Silicon contends that Commerce erred in finding that the purchase price and transportation costs were acceptable because the sale was a "testing/trial run" sale to an end-user of the material. See id. at 25-32. Specifically, American Silicon alleges that the sale was commercially unreasonable because the price paid by the U.S. purchaser was inconsistent with market prices at the time, and because the mode of shipment was more costly than the usual method for shipping silicon metal. Id. at 25-26. American Silicon also notes that Commerce's explanation that price might not be a primary concern in a "test sale" contradicts affidavits from several domestic silicon metal producers, which state that the unit price and method of shipping for a test sale would normally follow market prices and practices. Id. at 27-28. Moreover, American Silicon notes that Commerce's explanation of the sales price differs from LIASA's own explanation. Id. at 28-29.

Third, American Silicon argues that Commerce was incorrect in finding that the timing and the method of shipment do not indicate that the sale was non- bona fide. See id. at 32-35. American Silicon contends that there is no record evidence to support this finding since it was based on an affidavit submitted by the U.S. buyer which was stricken from the administrative record because it was submitted untimely. Id. at 33. Furthermore, American Silicon notes that even if the affidavit had been admitted, it does not mention silicon metal as having been previously shipped in this manner or provide a reason why this method of shipping was necessary in this particular sale. Id. American Silicon also alleges that it was highly unusual for silicon metal to be shipped in this manner. Id. at 34. Moreover, American Silicon argues that the buyer could not

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have had an urgent need which required that the metal arrive in such a short time frame due to its operating schedule at the time of delivery. Id. American Silicon concludes that the only plausible explanation for the timing and method of transport was to qualify LIASA for a new shipper review. Id. at 35.

Fourth, American Silicon challenges Commerce's finding that the sale was commercially reasonable despite the fact that LIASA deviated from its normal business practice by proceeding with the shipment without first receiving a formal purchase order from its U.S. customer. See id. at 36-37. On this point, American Silicon argues, in essence, that it is unreasonable to accept both the claim that the buyer could not provide a purchase order due to its operating schedule at the time, and the claim that the buyer had an immediate need for the shipment of silicon metal. Id.

Fifth, American Silicon highlights certain facts on the record which it contends that Commerce failed to consider. Those facts are: (1) the parties' discussion of the dumping margin, (2) the buyer having entered into a supply contract with another silicon metal producer before it ordered the shipment from LIASA, (3) the buyer's operating schedule at the time of shipment, (4) the difference between the price of the sale and the price of LIASA's original bid, (5) affidavits stating that a test sale would normally be made at the market price, and (6) that, contrary to LIASA's claim, there was not a supply shortage of silicon metal at the time of the sale. See id. at 41-42.

Finally, American Silicon argues that Commerce's decision is inconsistent with the agency's precedent of excluding sales made under similar circumstances. See id. at 42-44. Specifically, in Certain Cut-to-Length Carbon Steel Plate from Romania, 63 Fed.Reg. 47,232 (Sept. 4, 1998), Commerce considered factors such as the method of shipment, the timing of the sale, and the quantity sold and excluded that sale based on its determination that the single U.S. sale at issue was artificially structured and commercially unreasonable. In the present case, American Silicon alleges that the facts are essentially the same, but Commerce reached the opposite conclusion. American Silicon's Brief at 43-44. Thus, American Silicon...

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