Elkem Metals Co. V. U.S.

• Decision Date: 21 July 2006
• Docket Number: Slip Op. 06-108. Court No. 99-00628.
• Citation: 441 F.Supp.2d 1292
• Parties: ELKEM METALS CO., Applied Industrial Materials Corp., and CC Metals & Alloys, Inc., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

Page 1292

441 F.Supp.2d 1292

ELKEM METALS CO., Applied Industrial Materials Corp., and CC Metals & Alloys, Inc., Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 06-108. Court No. 99-00628.

United States Court of International Trade.

July 21, 2006.

DLA Piper Rudnick Gray Cary US, LLP (William D. Kramer, Martin Schaefermeier, and Clifford E. Stevens, Jr.), Eckert Seamans Cherin & Mellott, LLC (Dale Hershey), and Howrey Simon Arnold & White, LLP (John W. Nields, Jr. and Laura S. Shores), for plaintiff Elkem Metals Co.

Williams Montgomery & John, Ltd. (Theodore J. Low), for plaintiff Applied Industrial Materials Corp.

Arent Fox Kintner Plotkin & Kahn, PLLC (Eugene J. Meigher, Matthew Kanna and George R. Kucik), for plaintiff CC Metals & Alloys, Inc.

Dangel & Mattchen, LLP (Edward T. Dangel, III), 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, LLP (Julie C. Mendoza), for defendant-intervenor Ferroatlantica de Venezuela.

Hogan & Hartson, LLP (Mark S. McConnell), for defendant-intervenor General Motors Corp.

Greenberg Traurig, LLP (Philippe M. Bruno), for defendant-intervenors Associao Brasileira dos Productores de Ferroligas e de Silico Metalico, Companhia Brasileira & Companhia Ferroligas, Nova Era Silicon S/A, Italmagnesio S/A-Industria e Comercio, Rima Industrial S/A, and Companhia Ferroligas Minas Gerais—Minasligas.

MEMORANDUM OPINION AND ORDER

EATON, Judge.

This matter is before the court following remand to the United States International Trade Commission ("ITC" or the "Commission") of its negative injury determination contained in Ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, Invs. Nos. 303-TA-23, 731-TA-566-570, and 731-TA-641 (Final) (Reconsideration) (Second Remand), USITC Pub. 3627 (Sept.2003) ("Second Remand Determination"). See Elkem Metals Co. v. United States, 28 CIT ___, 342 F.Supp.2d 1207 (CIT 2004) (not published in the Federal Supplement) ("Elkem VI"), as modified by, Elkem Metals Co. v. United States, 28 CIT ___ (CIT 2004) (not published in the Federal Supplement) ("Elkem VII "). Pursuant to remand, the Commission has again issued a determination in Ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, Invs. Nos. 303—TA-23, 731—TA-566-570, and 731—TA-641 (Final) (Reconsideration) (Third Remand), USITC Pub. 3765 (Mar. 2005) ("Third Remand Determination"), and again found that the U.S. ferrosilicon industry was not injured as a result of ferrosilicon imports. Plaintiffs now challenge the results of the Third Remand Determination. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(B)(ii) (2000). For the reasons set forth below, the court remands the Third Remand Determination to the ITC for further consideration.

BACKGROUND

Familiarity with the facts of this dispute is presumed. For purposes of this opinion, the following history is noted. In Elkem VI, the court considered whether an established price-fixing Conspiracy¹ was a significant condition of competition that had affected prices charged by U.S. ferrosilicon producers during: (1) the period preceding the Conspiracy, i.e., the first three quarters of 1989 ("Prior Period") (2) the period of the Conspiracy itself, i.e., the period from late-1989 through mid-1991 ("Conspiracy Period"); and (3) the period: subsequent to the end of the Conspiracy, i.e., the period from mid-1991 to mid-1993 ("Subsequent Period"). See Elkem VI, 28 CIT at ___, 342 F.Supp.2d 1207, 1209-10, n. 1. There, the court "sustain[ed] the ITC's finding that the price-fixing [C]onspiracy did not affect prices during the Prior Period"² and remanded, as unsupported by substantial evidence, the Commission's finding that the price-fixing Conspiracy affected prices during the Subsequent Period. Id. at 1212.

In Elkem VII, the court addressed the ITC's motion seeking reconsideration of its holding in Elkem VI that substantial evidence did not support the Commission's finding that the price-fixing Conspiracy affected prices during the Subsequent Period. See Elkem VII, 28 CIT at ____, 2004 WL 2786274, *1. By its motion, the ITC asserted that the court erred because [s]everal of the remand instructions .. . appear[ed] to require the Commission to engage in inquiries that do not reflect the requirements of the antidumping and countervailing duty laws." Mot. of Def. ITC for Reconsideration ("Def.'s Mot.") at 5; see also Elkem VII, 28 CIT at 2004 WL 2786274, **1-2. The court treated the Commission's motion as one for modification and clarification rather than reconsideration because, while the ITC's arguments did not establish that the court's decision was "manifestly erroneous," they were meritorious in some respects. See Elkem VII, 28 CIT at 2004 WL 2786274, *1.

The ITC first objected to the remand instruction from Elkem VI that required it to quantify its findings by determining the "true" market price of ferrosilicon.³ See Elkem VI, 28 CIT at ____, 342 F.Supp.2d at 1217. The need to instruct the ITC to quantify its findings arose after the Commission introduced, in the Second Remand Determination,⁴ the notion that prices in the Subsequent Period exceeded the "true market price." See Second Remand Determination at 11. The ITC used the construct "true market price" to substantiate its conclusion that the [C]onspiracy affected prices beyond the Conspiracy Period. Id. According to the ITC, the antidumping and countervailing duty laws did not require it to determine a "true market price." See Elkem VII, 28 CIT at 2004 WL 2786274, *5. The court acknowledged the possibility for the ITC to make findings based on "true market price" that would be supported by substantial evidence without quantifying the actual price itself, but emphasized that, if the ITC wished to continue using the term "true market price," it had to define the term and provide substantial evidence supporting any findings that were based on its use. Id. at *6. As a result, the court modified the remand instructions regarding "true market price" as follows:

Should it continue to rely on the term "true market price," the ITC shall (1) define the term "true market price" it referenced in its Second Remand Determination at 10, and provide substantial evidence supporting any findings it makes regarding, price changes that should have occurred in the absence of continued effects from the [C]onspiracy, including any findings based on the use of the term "true market price," but is not required to provide a quantification of that term; (2) account for the factors it relied upon so heavily in its prior determinations, e.g., demand and U.S. apparent consumption; (3) clearly explain how these factors either support or do not support its finding that the [C]onspiracy affected domestic prices in the Subsequent Period; and (4) evaluate the relevant economic factors it finds to exist in the marketplace for the entire Subsequent Period, not merely the first quarter of the Subsequent Period.

The ITC further asserted that it should not be required on remand to "state with specificity what difference in price it would consider material in the context of this inquiry, and why."⁵ Elkem VI, 28 CIT at ___, 342 F.Supp.2d 1207 at 1221-22. Rather than reconsidering its instruction, the court clarified that the ITC could, if it so desired, comply with the instruction by substituting the word "significant" for "material" because the court's instructions were designed to show what price differential between the Conspiracy Period and Subsequent Period would be significant enough to demonstrate that the Conspiracy affected prices in the Subsequent Period. See Elkem VII, 28 CIT at ____, 2004 WL 2786274, *7.

The Commission next contested the court's instruction that, "[s]hould the ITC hope to establish by substantial evidence that the [C]onspiracy affected prices during the Subsequent Period, a baseline [price] would be useful." Elkem VI, 28 CIT at ____, 342 F.Supp.2d at 1224. The court clarified that its suggestion to include a baseline price was merely "guidance from the court as to the type of evidence that might be useful in order to satisfy the demands of substantial evidence ...," and not a remand instruction. Elkem VII, 28 CIT at ____, 2004 WL 2786274, *8.

Finally, the ITC asserted that the court's instruction to disaggregate the pricing data for each of the Conspirators is not required by antidumping or countervailing duty laws. See Def.'s Mot. at 7. The court found this contention to have some merit, and therefore amended the remand instruction to read as follows:

(3) in revisiting its finding that the Conspirators frequently maintained higher prices than their domestic competitors during the Subsequent Period, [the ITC should] consider the data for each of the Conspirators and either (a) disaggregate the pricing data or (b) explain why its method of aggregating the data is reasonable considering the court's discussion of that data, and, in any event, identify sufficient record evidence to support its finding, and explain how that evidence supports its finding.

Elkem VII, 28 CIT at ____, 2004 WL 2786274, *8.

Following the issuance of the court's order modifying the remand instructions, the ITC issued its Third Remand Determination. Rather than directly complying with the court's remand instructions, however, the ITC has instead redirected its efforts toward disproving Elkem's assertion that, "absent evidence to the contrary, the Commission should presume that ferrosilicon prices during the Subsequent Period were established pursuant to marketplace forces because ferrosilicon is a commodity product sold by numerous suppliers pursuant to competitive bidding." Third Remand Determination at 9. Specifically, the...