American Silicon Technologies v. U.S.

• Decision Date: 17 October 2002
• Docket Number: No. SLIP OP. 02-123.,Court No. 99-03-00149.,SLIP OP. 02-123.
• Citation: 240 F.Supp.2d 1306
• Parties: AMERICAN SILICON TECHNOLGIES, Elkem Metals Company and Globe Metallurgical Inc. Plaintiffs, v. UNITED STATES, Defendant, and Ligas De Aluminio S.A. Defendantintervenor. 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

Page 1306

240 F.Supp.2d 1306

AMERICAN SILICON TECHNOLGIES, Elkem Metals Company and Globe Metallurgical Inc. Plaintiffs, v. UNITED STATES, Defendant, and Ligas De Aluminio S.A. Defendantintervenor Eletrosilex S.A., Plaintiff v. United States Defendant, and American Silicon Technologies, Elkem Metals Company and Globe Metallurgical Inc. Defendant-Intervenors.

No. SLIP OP. 02-123.

Court No. 99-03-00149.

United States Court of International Trade.

October 17, 2002.

Baker Botts, LLP, Washington, DC (Kirk K. Van Tine, Samuel J. Waldon, and Matthew T. West) 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 (Michele D. Lynch), of counsel, for defendant.

Dorsey & Whitney, LLP, Washington, DC (Philippe M. Bruno and Rosa S. Jeong) 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). Previously, the Court remanded this determination for Commerce to (1) reconsider whether Eletrosilex failed to respond to the best of its ability, (2) reconsider whether it was appropriate to resort to total, as opposed to partial, facts available, and (3) explain the relevance and reliability of the total facts available margin it applied to Eletrosilex, if it concluded that it was still necessary to use total facts available. See American Silicon Technologies v. United States, 24 CIT ___, ___, 110 F.Supp.2d 992, 1003-04 (2000). Commerce issued Silicon Metal From Brazil; Final Results of Redetermination Pursuant to Court Remand ("Remand Results") on January 29, 2001. In the Remand Results Commerce reached the same conclusions it reached in the final results of the administrative review, namely, that: (1) Eletrosilex failed to act to the best of its ability by not responding to supplemental antidumping questionnaires from Commerce; (2) it was necessary to use total facts available since the information Eletrosilex submitted was too incomplete in key areas; and (3) the 93.20 percent surrogate margin applied to Eletrosilex was relevant and reliable. See Remand Results at 8, 10-12,14-15.

Eletrosilex submitted comments 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. Oral argument was held on the issues raised in the comments, after which the parties submitted supplemental briefs. For the reasons set forth below, the Court sustains Commerce's finding that Eletrosilex failed to act to the best of its ability and its conclusion that it was necessary to resort to total facts available. Nevertheless, the Court holds that the 93.20 percent surrogate margin selected by Commerce lacks a rational relationship to Eletrosilex, as required by 19 U.S.C. § 1677e(c) and F.LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed.Cir.2000). Therefore the Court remands this matter to Commerce a second time for it to select a margin 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." 216 F.3d at 1032.

Background

On September 22, 1997 Commerce sent Eletrosilex an initial antidumping questionnaire, and after analyzing Eletrosilex's responses, Commerce issued a supplemental questionnaire on March 24, 1998. Eletrosilex responded promptly, but after analyzing this information, Commerce concluded that additional information was still needed on certain topics. A second supplemental questionnaire was issued on June 29, 1998 and a third was issued on July 6, 1998. Both supplemental questionnaires required responses within one week due to Commerce's statutory deadline of July 30, 1998 for filing its preliminary results. Eletrosilex did not submit responses to either request. On July 7, 1998 counsel of record for Eletrosilex informed Commerce that Eletrosilex was in the process of being acquired. Subsequently on July 20, 1998 counsel informed Commerce that because of management reviews and changes in staffing Eletrosilex was not able to respond in a timely manner to the June 29 and July 6 questionnaires.

In the preliminary results, Commerce concluded, pursuant to section 782(e) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677m(e), that "while Eletrosilex data is incomplete for certain elements of the calculation, nevertheless the Department has enough data on the record to reasonably calculate a dumping margin." Silicon Metal from Brazil: Preliminary Results of Antidumping Duty Administrative Review, 63 Fed.Reg. 42,001, 42,007 (Aug. 6, 1998). In order to make this calculation, Commerce relied on partial facts available,¹ and used an adverse inference ²

in applying those facts. Id. Commerce determined that the adverse inference was appropriate because:

In the past, Eletrosilex has demonstrated an understanding for requests of additional information by the Department. In this review Eletrosilex responded on April 10, 1998, to the Department's March 24, 1998 supplemental questionnaire. However, its failure to provide responses to our other supplemental questionnaires (i.e. dated June 29 and July 6, 1998) despite numerous opportunities to do so constitutes a failure to cooperate to the best of its ability with respect to our requests for information.

Id. (citation omitted). Thus, using adverse partial facts available, Commerce calculated a preliminary dumping margin of 33.11 percent for Eletrosilex. Id. at 42008.

Commerce then issued its Final Results in which it "determined that Eletrosilex's questionnaire responses on the record are insufficient for purposes of conducting a margin analysis." Silicon Metal from Brazil: Notice of Final Results of Antidumping Duty Administrative Review, 64 Fed. Reg. 6305, 6310 (Feb. 9, 1999). After repeating its preliminary conclusion that Eletrosilex had failed to cooperate to the best of its ability, Commerce concluded that total adverse facts available should be used as the basis for Eletrosilex's dumping margin and imposed "the highest rate calculated for any respondent in any segment of this proceeding," 93.20 percent. Id. at 6311.

Discussion

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)).

I. Commerce's Finding that Eletrosilex Did Not Act to the Best of its Ability

In the Remand Results, Commerce determined that although Eletrosilex was undergoing significant managerial changes during June and July 1998, its failure to respond was ultimately a business decision; therefore it had not acted to the best of its ability regarding these requests for information. See Remand Results at 8. Commerce reached this conclusion based on an affidavit submitted³ by Eletrosilex's President and Administrative-Financial Director detailing the company's management situation and business activities during the period in question. Id. at 6. Specifically, Commerce found that an investment fund, which was a major investor in Eletrosilex, took control of the company in April 1998, after the majority owner failed to meet financial obligations. Id. A number of high level executives including the company President, and Financial and Commercial Directors and some of the staff reporting to them were dismissed shortly thereafter. Id. In June 1998 the investment fund had found a potential buyer for Eletrosilex and was compiling "a complete package of historical and commercial data, along with future sales projections" for the buyer. Id. The only remaining staff capable of preparing responses to Commerce's questionnaires were busy during this time preparing the information for the new purchaser and preparing evaluative data for the investment fund's own assessment of the company. Id. at 6-7.

In August 1998, when Commerce...