193 F.Supp.2d 1314 (CIT. 2002), Court 99-10-00628, Elkem Metals Co. v. United States

Docket Nº:Court 99-10-00628
Citation:193 F.Supp.2d 1314
Party Name:Elkem Metals Co. v. United States
Case Date:February 21, 2002
Court:Court of International Trade
 
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193 F.Supp.2d 1314 (CIT. 2002)

ELKEM METALS CO.; American Alloys, Inc.; Applied Industrial Materials Corp.; and CC Metals & Alloys, Inc., Plaintiffs/Plaintiff-Intervenors,

and

Globe Metallurgical, Inc., Plaintiff-Intervenor,

v.

UNITED STATES of America Defendant,

and

Ferroatlantica De Venezuela; General Motors Corp.; Associação Brasileira Dos Productores de Ferroligas e de Silico Metalico, et al.; and Ronly Holdings, Ltd., et al., Defendant-Intervenors.

Slip. Op. 02-18.

Court No. 99-10-00628.

United States Court of International Trade.

Feb. 21, 2002

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[Copyrighted Material Omitted]

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Verner, Liipfert, Bernhard, McPherson and Hand (William D. Kramer); Eckert Seamans Cherin & Mellott, LLC (Dale Hershey and Mary K. Austin); Howrey, Simon, Arnold & White(John W. Nields, Jr. and Laura W. Shores) for Plaintiff Elkem Metals Company.

Doepken, Keevican & Weiss (Gordon W. Schmidt), for Plaintiff American Alloys, Inc.

Altheimer & Gray (Theodore J. Low), for Plaintiff Applied Industrial Materials Corporation.

Arent Fox Kintner Plotkin & Kahn, PLLC (Stephen L. Gibson, George R. Kucik, and Nada S. Sulaiman), for Plaintiff CC Metals and Alloys, Inc.

Dangel & Fine, LLP (Edward T. Dangel, III, Michael K. Mattchen, and Jonathan L. Glover), for Plaintiff-Intervenor Globe Metallurgical, Inc.

Lyn M. Schlitt, General Counsel, United States International Trade Commission; James M. Lyons, Deputy General Counsel, United States International Trade Commission (Marc A. Bernstein), for Defendant.

Kaye, Scholer, Fierman, Hays & Handler, LLP (Julie C. Mendoza, Donald B. Cameron, R. Will Planert, and Margaret E. Scicluna), for Defendant-Intervenor Ferroatlantica de Venezuela.

Hogan & Hartson LLP (Mark S. McConnell and Jonathan J. Engler), for Defendant-Intervenor General Motors Corporation.

Dorsey & Whitney LLP (Philippe M. Bruno and Kevin B. Bedell), for Defendant-Intervenors Associação Brasileira dos Productores de Ferroligas e de Silico Metalico, Companhia Brasileira Carbureto de Calcio-CBCC, Companhia de Ferroligas de Bahia-FERBASA, Nova Era Silicon S/A, Italmagnesio S/A-Industria e Comercio, Rima Industrial S/A, and Companhia Ferroligas Minas Gerais-Minasligas.

Aitken Irvin Berlin & Vrooman, LLP (Bruce Aitken and Virginie Lecaillon), for Defendant-Intervenors Ronly Holdings, Ltd., Cheliubinski Electrometalurgical Works, Kuznetsk Ferroalloy Works, Stakhanov Ferroalloy Works, and Zaporozhye Ferroalloy Works.

OPINION & ORDER

EATON, Judge.

Before the court are the motions of plaintiffs Elkem Metals Company, American Alloys, Inc., Applied Industrial Materials Corporation ("AIMCOR"), and CC Metals and Alloys, Inc. ("CCMA"), and plaintiff-intervenor Globe Metallurgical, Inc. ("Globe") (collectively "Plaintiffs"), for judgment upon the agency record pursuant to USCIT R. 56.2. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(a)(2)(B)(ii). For the reasons set forth below, the court remands this case to the United States International Trade Commission ("ITC") for further action consistent with this opinion.

BACKGROUND

Plaintiffs challenge the ITC's reconsideration and reversal of its final affirmative material injury determinations in antidumping investigations Nos. 731-TA-566-570 and 731-TA-641 (Final) covering ferrosilicon 1 from Brazil, China, Kazakhstan,

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Russia, Ukraine, and Venezuela and countervailing duty investigation No. 303-TA-23 (Final) covering ferrosilicon from Venezuela ("Final Determination").

In 1993 and 1994, shortly after the United States International Trade Administration found that ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela was being sold in the United States at less than fair value, and that the Venezuelan government was subsidizing ferrosilicon sales, the ITC determined that such sales were causing material injury to the ferrosilicon industry in the United States. It then issued the Final Determination, the reconsideration and reversal of which is the subject of this dispute. Based on the Final Determination, the United States Department of Commerce ("Commerce") issued antidumping orders against ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, and a countervailing duty order against ferrosilicon from Venezuela. See Antidumping Duty Order: Ferrosilicon From the People's Republic of China, 58 Fed.Reg. 13,448 (Mar. 11, 1993); Final Affirmative Countervailing Duty Determination: Ferrosilicon From Venezuela; and Countervailing Duty Order for Certain Ferrosilicon From Venezuela, 58 Fed.Reg. 27,539 (May 10, 1993), amended by 58 Fed.Reg. 36,394 (July 7, 1993); Antidumping Duty Orders: Ferrosilicon From Venezuela and the Russian Federation, 58 Fed.Reg. 34,243 (June 24, 1993); Antidumping Duty Orders: Ferrosilicon From Kazakhstan and Ukraine, 58 Fed.Reg. 18,079 (Apr. 7, 1993), amended by 60 Fed.Reg. 64,018 (Dec. 13, 1995); Antidumping Duty Order: Ferrosilicon From Brazil, 59 Fed.Reg. 11,769 (Mar. 14, 1994).

The imposition of these orders remained unchallenged until 1998, when certain Brazilian ferrosilicon producers petitioned the ITC to institute a review of the Final Determination relating to ferrosilicon from that country. The petition alleged that a, then, recently disclosed price-fixing conspiracy among some domestic manufacturers, and its consequent distortion of the price data presented to the ITC during its original material injury investigations, constituted "changed circumstances" sufficient to warrant review pursuant to 19 U.S.C. § 1675(b). See Ferrosilicon From Brazil, China, Kazakstan [sic], Russia, Ukraine, and Venezuela, 63 Fed.Reg. 27,747 (May 20, 1998). On July 28, 1998, the ITC instituted the requested changed circumstances review and, further, self-initiated changed circumstances reviews of the other related final affirmative material injury determinations--i.e., those pertaining to ferrosilicon from China, Kazakhstan, Russia, Ukraine, and Venezuela. See Ferrosilicon From Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, 63 Fed.Reg. 40,314 (July 28, 1998).

In May 1999, the ITC suspended these changed circumstances reviews and gave notice of its intention to "reconsider" its Final Determination. See Ferrosilicon From Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, 64 Fed.Reg. 28,212 (May 25, 1999) (" Notice "); see also USITC Pub. 3218, at 6 (Aug.1999) (stating that "reconsideration was a more appropriate procedure for review of the original determinations"). The Notice stated:

The [ITC] ... has suspended the [changed circumstances reviews] and is instituting proceedings in which it will reconsider its [Final Determination].

For further information concerning the conduct of this reconsideration and rules of general application, consult the Commission's

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Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, C, and D (19 CFR part 207).

Notice, 64 Fed.Reg. at 28,212.

Further, the Notice alerted interested parties that the record from the changed circumstances reviews would "be incorporated into the record of the [ ] reconsideration proceedings" ("Reconsideration Proceedings"). In addition, the Notice stated:

Each Party can submit comments, including new factual information ... limited to the issues of (a) the price-fixing conspiracy, or other anticompetitive conduct relating to the original periods of investigation, and (b) any possible material misrepresentations or material omissions, by any entity that provided information or argument in the original investigations, concerning: (1) the conspiracy or other anticompetitive conduct or (2) any other matter.

See Notice, 64 Fed.Reg. at 28,213.

Thereafter, the ITC reversed and vacated its Final Determination, and issued a negative injury determination as to the original investigations. See Ferrosilicon From Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, 64 Fed.Reg. 47,865 (Sept. 1, 1999) ("Reconsideration Determination"); see generally USITC Pub. 3218, at 1. As part of this Reconsideration Determination, the ITC concluded that it need not examine whether the alleged price-fixing conspiracy actually distorted the domestic ferrosilicon prices at issue in the original investigations. See USITC Pub. 3218, at 23-24 ("[The ITC] cannot conclude what, if any, of the representations made by the domestic producers on pricing and market conditions are sufficiently credible to rely on. Consequently, in our reconsideration determinations we have taken adverse inferences against these firms and used the facts otherwise available, as authorized by the statute and case law."). 2 As a result, the ITC concluded that, during the period under review in the original investigations, the domestic ferrosilicon industry "in the United States [was] neither materially injured nor threatened with material injury by reason of imports of ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela that have been found by ... Commerce to be sold at less than fair value and imports of ferrosilicon that ... Commerce has found [were] subsidized by the Government of Venezuela." See Ferrosilicon From Brazil, Kazakhstan, People's Republic of China, Russia, Ukraine, and Venezuela, 64 Fed.Reg. 51,097, 51,098 (Sept. 21, 1999); see also USITC Pub. 3218, at 4.

In accordance with the ITC's Reconsideration Determination, Commerce "rescinded" the antidumping and countervailing duty orders covering the subject imports. See Ferrosilicon From Brazil, Kazakhstan, People's Republic of China, Russia, Ukraine, and Venezuela, 64 Fed.Reg. at 51,098. In conjunction with this

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rescission, Commerce terminated all related administrative reviews, see id., and instructed the United States Customs Service to liquidate all unliquidated entries. 3 See id. at 51,099.

Subsequently,...

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