American Silicon Technologies v. U.S.

• Citation: 273 F.Supp.2d 1342
• Decision Date: 27 June 2003
• Docket Number: Slip Op. 03-69.,Court No. 99-03-00149.
• Parties: 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.
• Court: U.S. Court of International Trade

273 F.Supp.2d 1342

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.

Slip Op. 03-69.

Court No. 99-03-00149.

United States Court of International Trade.

June 27, 2003.

Baker Botts, LLP (Samuel J. Waldon, and Matthew T. West), Washington, DC, for plaintiffs and defendant-intervenors American Silicon Technologies, Elkem Metals Company, and Globe Metallurgical Inc.

Robert D. McCallum, Jr., 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 (Barbara J. Tsai), for defendant, of counsel.

Dorsey & Whitney, LLP (Philippe M. Bruno and Rosa S. Jeong), Washington, DC, for plaintiff and defendant-intervenor Eletrosilex, S.A.

OPINION

MUSGRAVE, Judge.

In this action plaintiff Eletrosilex S.A., a Brazilian producer of silicon metal, challenges the decision by the International Trade Administration of the United States Department of Commerce ("Commerce" or "the agency") to use total adverse facts available to determine its dumping margin in 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). The Court has remanded this determination twice in prior Opinions. See American Silicon Technologies v. United States, 26 CIT ___, 240 F.Supp.2d 1306 (2002); American Silicon Technologies v. United States, 24 CIT 612, 110 F.Supp.2d 992 (2000). Most recently, the Court held that the 93.2 percent dumping margin selected by Commerce as adverse facts available for Eletrosilex was disproportionately high relative to commercial practices at and around the relevant time period. 26 CIT at ___, 240 F.Supp.2d at 1313. Thus the Court remanded this matter for Commerce to select a different dumping margin. Id. Commerce issued its Final Results of Redetermination Pursuant to Court Remand ("Second Remand Results") on January 22, 2003, and selected a 67.93 percent margin calculated for another respondent in the fourth administrative review as the adverse facts available rate for Eletrosilex. See Second Remand Results at 3. In selecting this rate, Commerce reasoned:

Pursuant to the Court's directive, the Department selected an alternate rate to apply as adverse [facts available] to Eletrosilex. The highest rate calculated for Eletrosilex in any segment of this proceeding was 53.63 percent. The highest rates calculated for other respondents in other segments of this proceeding were 91.06 ("all others rate" from less-than-fair-value (LTFV) investigation), 93.20 (highest rate calculated for any respondent during the LTFV investigation), 61.58 (highest rate calculated for any respondent during the third review of this proceeding) and 81.61 and 67.93 percent (the two highest rates calculated for respondents during the fourth review of this proceeding).

Eletrosilex's previously calculated rate of 53.63 percent is not an appropriate rate for use as adverse [facts available] because the rate was calculated for a review period during which Eletrosilex was cooperative. Hence, the use of this rate would not carry an adverse inference. The Court dismissed the 81.61 rate issued in the fourth review period and indicated that margins above 90 percent in this proceeding "lack a rational relationship to Eletrosilex." The Department therefore chose as adverse [facts available] the 67.93 percent calculated rate issued in the fourth administrative review of this case. Because this rate is from a review period that began two years before the instant review period, it should reasonably reflect commercial practices at or around the time in question. Moreover, as the 67.93 percent rate is above Eletrosilex's previously calculated rate of 53.63 percent, the Department finds that this rate serves the Court's directive of selecting a rate that is a "reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to non-compliance." Therefore, in order to comply with the Court's order, we have selected 67.93 percent as the adverse [facts available] rate to apply to Eletrosilex for the sixth review of this proceeding. Consequently, Eletrosilex's dumping margin for the sixth review of this proceeding will change from 93.20 percent to 67.93 percent.

Second Remand Results at 2-3 (footnote omitted).

Eletrosilex subsequently submitted comments to the Court objecting to the Remand Results and Commerce and defendant-intervenors American Silicon Technologies, Elkem Metals Co., and Globe Metallurgical Inc. (collectively "American Silicon") submitted rebuttal comments. For the reasons which follow, the Court sustains Commerce's Second Remand Results.

Jurisdiction and Standard of Review

The Court has jurisdiction of this action pursuant to 19 U.S.C. § 1516a(a) and 28 U.S.C. § 1581(c). 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)).

Discussion

Eletrosilex argues that the 67.93 percent margin is not reliable because it was "calculated for another respondent, Companhia Brasileira Carbureto de Calcio ("CBCC"), in the court-ordered remand proceeding" and "is not a final calculated margin." Eletrosilex's Comments on the Final Results of Redetermination Pursuant to Court Remand ("Eletrosilex's Comments") at 3-4. Eletrosilex notes that Commerce originally calculated and published a 0.37 percent rate for CBCC in the fourth administrative review. Id. at 4. This Court reversed Commerce's determination, and on remand Commerce calculated the 67.93 percent rate. The Court entered judgment sustaining the remand results, but subsequently stayed the judgment as it pertained to CBCC pending the outcome of CBCC's appeal, which has yet to be decided. Thus, Eletrosilex concludes that, "the remand decision has not become final and is without any legal effect at this time." Id. at 4. Eletrosilex also argues that it is inappropriate to use this rate as adverse facts available because it will have no recourse if the Federal Circuit subsequently finds in CBCC's favor. Id. at 6.

Eletrosilex also argues that the 67.93 percent rate is not a reasonably accurate estimate of its actual rate. Id. It notes that for three reviews prior to the one at issue its dumping margins were 39.00 percent, 38.39 percent, and 13.18 percent. Id. at 7. Moreover, it avers that CBCC was "the only respondent, since the original investigation, that received a calculated dumping rate that is significantly over 50 percent." Id. (emphasis in the original).

Eletrosilex contends that Commerce chose the 67.93 percent margin because it was slightly higher than Eletrosilex's highest calculated rate and was therefore "`a reasonably accurate estimate' of Eletrosilex'[s] `actual rate' of dumping and that the additional 14.3 percent (the difference between the two rates) serves as the `built-in increase intended as a deterrent to noncompliance.'" Id. at 8. Eletrosilex argues that this reasoning is misleading since the 53.63 percent rate was "not calculated for the period of review at issue, but was calculated in the first administrative review" and is...