The opinion
Slip Op. 08-33
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
GLOBE METALLURGICAL INC., :
:
Plaintiff, :
:
: Court No. 07-00011
:
UNITED STATES, :
:
Defendant, :
:
and :
LIGAS DE ALUMINIO S.A. and :
COMPANHIA FERROLIGAS MINAS :
GERAIS-MINASLIGAS, :
:
Defendant-Intervenors. :
:
________________________________________:
Held: Plaintiff’s Motion for Judgment Upon the Agency Record
is denied. The United States International Trade Commission’s
determination is affirmed. Case dismissed.
DLA Piper US LLP (William D. Kramer, and Clifford E. Stevens,
Jr.), for Globe Metallurgical Inc., plaintiff.
James M. Lyons, General Counsel; Andrea C. Casson, Assistant
General Counsel, Office of the General Counsel, United States
International Trade Commission (Rhonda M. Hughes), for the United
States, defendant.
Bryan Cave LLP (Lyle B. Vander Schaaf and Joseph Heckendorn),
for Ligas de Aluminio S.A. and Companhia Ferroligas Minas Gerais-
Minasligas, defendant-intervenors.
Dated: March 19, 2008
Court No. 07-00011 Page 2
OPINION
TSOUCALAS, Senior Judge: This matter is before the Court on a
motion for judgment upon the agency record brought by Plaintiff
Globe Metallurgical Inc. (“Globe” or “Plaintiff”) pursuant to USCIT
Rule 56.2.
Plaintiff challenges the U.S. International Trade Commission’s
(“ITC” or “Commission”) second sunset review determination
concerning the antidumping duty order on silicon metal from Brazil.
See Silicon Metal From Brazil and China, 71 Fed. Reg. 71,554
(December 11, 2006). Globe argues that the ITC’s determination is
unsupported by substantial evidence and otherwise contrary to law.
Pl.’s Mot. J. Agency R. (“Globe Brief”).1 For the reasons set
forth below, Globe’s motion for judgment upon the agency record is
denied and the ITC’s determination is affirmed.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and B(iii).
STANDARD OF REVIEW
When reviewing the final results in antidumping administrative
1
Unless otherwise noted the reference to all documents
herein shall refer to the public version of those documents.
Court No. 07-00011 Page 3
reviews “[t]he court shall hold unlawful any determination,
finding, or conclusion found . . . to be 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 more than
a mere scintilla.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369,
1374 (Fed. Cir. 2003) (quoting Consol. Edison Co., 305 U.S. at
229). In determining the existence of substantial evidence, a
reviewing court must consider “the record as a whole, including
evidence that supports as well as evidence that ‘fairly detracts
from the substantiality of the evidence.’” Huaiyin, 322 F.3d at
1374 (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556,
1562 (Fed. Cir. 1984)).
The United States Court of Appeals for the Federal
Circuit has stated that “in the hierarchy of the four most common
standards of review, substantial evidence is the second most
deferential, and can be translated roughly to mean is [the
determination] unreasonable?” See Nippon Steel Corp. v. United
States, 458 F.3d 1345, 1351 (Fed. Cir. 2006) (internal citation and
quotations omitted) (alteration in original). Globe, therefore, in
challenging the ITC's determination under the substantial evidence
standard, “has chosen a course with a high barrier to reversal.”
Court No. 07-00011 Page 4
Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060
(Fed. Cir. 2001). The ITC's determination is “presumed to be
correct,” and the burden of demonstrating otherwise rests upon the
party challenging the determination. 28 U.S.C. § 2639(a)(1).
ABBREVIATED BACKGROUND
On July 24, 1991, the ITC determined that an industry in the
U.S. was being materially injured by reason of less than fair value
imports of silicon metal from Brazil. On July 31, 1991, the
Department of Commerce issued an antidumping duty order on subject
imports of silicon metal from Brazil.
In January 2001, the ITC, in the first five-year review of the
order, determined that revocation of the antidumping duty order on
subject imports of silicon metal from Brazil would be likely to
lead to continuation or recurrence of material injury to the
domestic industry within a reasonably foreseeable time. On
February 16, 2001, Commerce published a notice of continuation of
the antidumping duty order on subject imports of silicon metal from
Brazil. Commerce revoked the antidumping duty order with respect
to Brazilian producer Rima Industrial SA, effective July 1, 2001,
and with respect to Brazilian producer Companhia Brasileira
Carbureto De Calcio (“CBCC”) effective July 1, 2002.
On January 3, 2006, the ITC instituted this five-year review
to determine whether revocation of the antidumping duty order on
Court No. 07-00011 Page 5
the remaining subject silicon metal from Brazil would likely lead
to continuation or recurrence of material injury.2
The ITC’s final determination was issued on December 6, 2006
and published on December 11, 2006. See Silicon Metal From Brazil
and China, 71 Fed. Reg. 71,554 (the “ITC Determination”). The ITC,
in a unanimous decision by all participating Commissioners,3
determined that “revocation of the antidumping duty order covering
silicon metal from Brazil would not be likely to lead to
continuation or recurrence of material injury to an industry in the
United States within a reasonably foreseeable time.” Views of the
Commission (December 2006)(“Views of the Commission”) at 3.
Globe argues that the ITC’s Determination is unsupported by
substantial evidence and otherwise contrary to law. See Globe
Brief. Specifically, Globe takes issue with the ITC’s finding that
(i) if the order were revoked the likely volume of silicon metal
imports from Brazil into the U.S. would not be significant; (ii)
revocation of the order would not likely lead to significant
adverse price effects; and (iii) there would not likely be a
significant adverse impact on the domestic industry upon revocation
2
The ITC and the Department of Commerce are required to
conduct sunset reviews five years after publication of an
antidumping duty order or a prior sunset review. 19 U.S.C.
§ 1675(c)(1). This review also considered silicon metal from
China but that portion of the review is not relevant here.
3
Commissioner Okun did not participate in this review.
Court No. 07-00011 Page 6
of the order. See Globe Brief at 15-32; Views of the Commission at
16, 19 and 22.
DISCUSSION
I. Statutory Framework
When conducting a five-year sunset review under 19 U.S.C.
§ 1675(c) the ITC shall determine whether revocation of an order
would be likely to lead to continuation or recurrence of material
injury to the domestic industry within a reasonably foreseeable
time.4 In making that determination the ITC must consider the
likely volume, price effect and impact of imports of the subject
merchandise on the industry if the order is revoked. See 19 U.S.C.
§ 1675a(a)1.
II. The ITC’s Finding With Respect To Volume Is Supported By
Substantial Evidence And Otherwise in Accordance With Law
As described supra, in making a sunset review determination
the ITC must consider “the likely volume, price effect and impact
of imports of the subject merchandise on the industry if the order
is revoked.” § 1675a(a)(1). Although the Views of the Commission
discussed each of these three considerations in detail, the
substance of Globe’s arguments are founded on the premise that the
4
This Court has found “likely” to mean “probable” within
the context of §§ 1675(c) and 1675a(a). See, e.g., Siderca
S.A.I.C. v. United States, 391 F.Supp. 2d 1353, 1356-57 (2005);
Usinor Industeel, S.A. v. United States, 26 CIT 1402, 1403-04
(2002).
Court No. 07-00011 Page 7
ITC’s “likely volume” findings are erroneous.5 See Views of
Commission at 16; Globe Brief at 15-31. The Court therefore limits
its discussion to the ITC’s main likely volume findings and Globe’s
contentions with respect to those findings.
Section 1675a(a)(2) states that “[i]n evaluating the likely
volume of imports of the subject merchandise if the order is
revoked . . . the Commission shall consider whether the likely
volume of imports of the subject merchandise would be significant
if the order is revoked . . . either in absolute terms or relative
to production or consumption in the United States.”6 The ITC found
that “the likely volume of subject imports from Brazil would not be
significant either in absolute terms or relative to production or
consumption in the United States if the order were revoked.” Views
of the Commission at 16; Def’s Mem. Opp’n Pl.’s Mot. J. Agency R.
(“ITC Brief”) at 7.
Globe contends that the ITC’s likely volume finding is
erroneous and unsupported by substantial evidence on the record,
and points to two specific actions that it argues Brazilian
5
Globe argues that the ITC’s volume finding is erroneous
and, therefore, the ITC’s price effects determination is also
erroneous. Similarly, these two erroneous determinations render
the ITC’s impact determination erroneous. Globe Brief at 31-32.
6
“‘Significant’ is defined as ‘having or likely to have
influence or effect[;] deserving to be considered[;] important,
weighty, notable[.]’” Gerald Metal, Inc. v. United States, 22 CIT
1009, 1013, 27 F. Supp. 2d 1351, 1355 (1998) (brackets in
original) (citation omitted).
Court No. 07-00011 Page 8
producers are likely to take upon revocation of the order. First,
Globe argues that Brazilian producers will divert current silicon
metal production that is now going to the EU to the U.S. because of
what Globe contends is a price incentive in the differential
between EU and U.S. prices for silicon metal. See Globe Brief at
15-21. Second, Globe argues that Brazilian producers will engage
in product-shifting (i.e., converting furnaces now making other
products, like ferrosilicon, into furnaces making silicon metal),
thus increasing their silicon metal capacity and production in
order to take advantage of what Globe contends is a price incentive
in the differential between U.S. ferrosilicon and silicon metal
prices. Id. at 21-26. Globe points to evidence on the record that
it argues supports its two contentions and thus renders the ITC
Determination unsupported by substantial evidence. The Court
disagrees and will address each of Globe’s price incentive
arguments in turn.
A. EU/U.S. Price Differential Incentive
As part of its volume determination, the ITC found that
“[w]hile the data are mixed, prices for silicon metal in the EU are
generally similar to prices in the United States, providing no
sustained price incentive for subject Brazilian producers to alter
their . . . commercial relationships with their European purchasers
in order to ship significantly increased volumes to the U.S. market
Court No. 07-00011 Page 9
in the reasonably foreseeable future upon revocation of the order.”
Views of the Commission (confidential version) at 28.
Plaintiff argues that the ITC’s finding that the Brazilian
producers subject to the order had no price incentive to divert
significant volumes of silicon metal exports from their European
customers to the United States is erroneous and unsupported by
substantial evidence. See Globe Brief at 15. Specifically, Globe
challenges the probative value of the ITC’s price data metrics
(i.e., the ITC’s reliance on published spot market reference
prices), and further challenges the ITC’s finding, based on that
price data, that prices in the EU were “generally similar” to, or
“currently are approximately the same” as, prices in the U.S. Globe
Brief at 15, 18; Views of the Commission at 16.
(i) Price Metrics
In determining the difference in price between silicon metal
in the EU and the U.S., the ITC must establish which measurement it
will use to compare prices. The ITC contends that published spot
market reference prices are “key to - and probative of - the prices
that would be charged for any likely increased volumes of subject
imports should the [Brazilian antidumping duty] order be revoked.”7
7
The ITC notes that “[s]ales of silicon metal in the U.S.
market are made on both a contract and spot basis” and that
“[t]he silicon metal prices published by Metal Bulletin or Ryan’s
(continued...)
Court No. 07-00011 Page 10
ITC Brief at 17.
Globe contends that the most probative price data on the
record is not the published spot market reference prices relied on
by the ITC, but rather the Brazilian export statistics which show
“the quantity and value of the Brazilian producers’ actual export
sales of silicon metal to the EU and the United States,” and,
similarly, certain other confidential price data on the record that
reflect sales made to customers in the EU and U.S.8 Globe Brief at
16. This “most probative price data”, Globe argues, represents the
actual prices received as opposed to general price levels and
trends.9 Id.
The ITC’s response to Globe is that the business proprietary
data that Globe proposed (reflecting actual sales) was considered
and found less probative than published spot market prices because,
among other reasons, that data accounted for a low percentage of
7
(...continued)
Notes are sometimes used in price negotiations and are typically
used for price adjustments within a contract.” ITC Brief at 16,
17.
8
Globe explains that there are three types of EU and U.S.
silicon metal price data on the record: (1) published spot market
reference prices (from Metal Bulletin, Ryan’s Notes and CRU
Monitor); (2) Brazil’s official export statistics; and (3) certain
other business proprietary data. See Globe Brief at 16.
9
Globe notes that the “[p]ublished spot market reference
prices [relied on by the ITC] reflect general price levels and
trends in a given market, but do not represent the prices
obtained by particular suppliers.” Globe Brief at 16.
Court No. 07-00011 Page 11
the quantity of subject imports from Brazil in 2000 to 2005. See
ITC Brief at 15-16. Furthermore, the ITC noted that the Brazilian
export statistics data was also considered and found less probative
because that data is skewed by the exports from CBCC to its parent
corporation, and as these are not arm’s length transactions, “any
comparison with transactions elsewhere in the world is invalid.”
ITC Brief at 17.
In determining whether the ITC’s reliance on published spot
market prices was appropriate in this context the Court is guided
by the fact that “the resolution of [questions relating to ‘the
proper weight of evidence’] must be left to the expert factfinder.”
Nippon Steel Corp., 458 F.3d at 1358. In assessing the various
price metric data the ITC determined that spot prices were the most
probative in this context. A reasonable argument can be made for
using some form of the alternative price data proposed by Globe,
but that is not the test here. The ITC, as the expert fact-finder,
determined to use a data type that Globe concedes “reflect[s]
general price levels and trends in a given market” and explained
its reasons for preferring this data type over the others. Globe
Brief at 16. The Court does not see anything on the record or in
Plaintiff’s arguments to render that determination unreasonable
and, therefore, holds that the ITC’s reliance on published spot
market reference prices is both reasonable and supported by
substantial evidence.
Court No. 07-00011 Page 12
(ii) Silicon Metal Prices in the EU and U.S.
As stated above, the ITC determination found that “[w]hile the
data are mixed, prices for silicon metal in the EU are generally
similar to prices in the United States.” Views of the Commission
at 16. Globe contends that the ITC’s finding that prices in the EU
and U.S. were “generally similar” is erroneous and unsupported by
substantial evidence. Globe argues that the chart of spot prices
that the ITC cites for support for this statement contradicts the
ITC’s conclusion, in that (1) spot market prices were “higher in
the U.S. market [from January 2001 through September 2006]” except
when briefly depressed by Russian imports; and (2) the “data
indicate that the price gap between the two markets was growing at
the end of the period.” Globe Brief at 17. The ITC concedes that
“prices in the United States had been somewhat higher than prices
in the EU” but notes that “the average price differential for the
period February 2006 to August 2006 was only 5.6 percent [and that]
[t]his differential, which is not large in and of itself, is
mitigated by the realities of the marketplace and conditions of
competition.”10 ITC Brief at 19-20. The ITC also points out that
10
It is important to note that the ITC’s finding of
“generally similar” prices is not made in a vacuum, but rather is
assessed in the context of determining whether a sustained price
incentive exists (“[w]hen viewed in conjunction with the crucial
importance of . . . customers and contracts in the EU . . . the
need to undergo what may be a lengthy and expensive process to
(continued...)
Court No. 07-00011 Page 13
the price differential between EU and U.S. prices was “only 4.8% in
August 2006, the last month for which the appropriate pricing
comparisons were available.” ITC Brief at 19.
In assessing the relative merits of the parties’ arguments,
the Court’s role here is a clearly delimited one and “[i]t is not
within the Court's domain either to weigh the adequate quality or
quantity of the evidence for sufficiency or to reject a finding on
grounds of a differing interpretation of the record.” Czestochowa
(Stalexport) v. United States, 19 CIT 758, 763-64, 890 F. Supp.
1053, 1059 (1995) (citation and internal quotation omitted). Globe
must contend with the fact that “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. Fed. Mar. Comm’n., 383 U.S. 607, 620 (1966)
(citations omitted).
An answer to the question of what is, or is not, “generally
similar,” must acknowledge that any determination is situation-
dependent and open to interpretation. The real question here,
however, is not whether U.S. prices are “generally similar” to EU
prices, but rather whether the differential is such that it is
likely to create a sustained price incentive for Brazilian
10
(...continued)
become certified/qualified . . . as well as the importance of the
other non-price factors, the significance of this price
differential is diminished substantially”). ITC Brief at 20.
Court No. 07-00011 Page 14
producers to divert a significant quantity of silicon metal to the
U.S. from the EU.11 Globe’s contention, therefore, that spot
prices were higher in the U.S. throughout the period of review,
misses the point. The relevant comparison is one of price
differential, not relative price. Plaintiff’s other arguments on
this issue revolve around (1) Globe’s proposed alternative price
data and what that data purportedly shows, and (2) spikes in
various price data. The Court discussed the former argument’s
merits supra in the discussion on price metrics, and states here,
as to the latter argument, that price spikes do not equate to a
sustained price incentive. Collectively, the Globe arguments
indicate, at best, nothing more than a differing interpretation of
the record and that is not enough to conclude that the ITC’s
finding on this point is erroneous. Therefore, in examining the
record as a whole and considering the arguments put forth by Globe,
the Court finds the ITC’s determination that the EU/U.S. silicon
metal price differential is not of such a magnitude that it is
likely to create a sustained price incentive for Brazilian
producers to divert silicon metal to the U.S. is reasonable and
11
There are specific slices of time where the EU/U.S. price
gap appears to exceed what might reasonably be considered
“generally similar,” for instance, Globe contends that there was
an approximately eight cent difference per pound (83.5 cents/lb.
in the U.S. versus 75.24 cents/lb. in the EU) on September 26,
2006. Globe Brief at 19. The issue here, however, revolves
around the question of a sustained price incentive, which is very
different from periodic spikes in prices.
Court No. 07-00011 Page 15
supported by substantial evidence.
For the reasoning set forth above, Globe’s related argument,
that the ITC determination that EU and U.S. prices were “currently
approximately the same” is erroneous and unsupported by substantial
evidence, is less than convincing.12 See Globe Brief at 18-21.
B. Product Shifting Analysis
In its evaluation of the likely volume of imports of the
subject merchandise if the order is revoked and whether that likely
volume would be significant, the Commission “shall consider all
relevant economic factors, including . . .(D) the potential for
product-shifting if production facilities in the foreign country,
which can be used to produce the subject merchandise, are currently
being used to produce other products.”13 § 1675a(a)(2)(D).
(i) Product-shifting from ferrosilicon to silicon metal
The ITC found that the “evidence is mixed regarding the
12
Globe argues that the last month for which price data was
available was September 2006 (an 8 cents or 11% difference in
EU/U.S. price) and not August 2006 (a 4.8% difference), as the
ITC contends. See Globe Reply Brief at 9. But the ITC points out
that the underlying Globe data reveals “the price differential on
July 7 was 1.18 cents, and the price gap on September 22 was 4.40
cents.” ITC Brief at 22.
13
Although Globe’s argument focuses on the potential for
product shifting, the ITC is charged with considering three other
volume-specific economic factors relating to likely increases in
production capacity, existing inventories and the existence of
barriers to importation. § 1675a(2)(A)-(C).
Court No. 07-00011 Page 16
required time and cost to shift production from ferrosilicon to
silicon metal and does not necessarily support a finding that
product shifting was technologically or financially attractive.”14
Views of the Commission at 18; ITC Brief at 23. The ITC in its
brief argues that “it is well documented that to certain producers
and under certain circumstances, the conversion of furnaces from
the production of ferrosilicon to silicon metal is virtually
unattainable.”15 ITC Brief at 30-31.
Globe argues that it calculated the price difference between
ferrosilicon and silicon metal prices that would provide the
required incentive to convert furnaces from ferrosilicon to silicon
metal production and concludes that “currently and over most of the
POR, there was a clear economic incentive to convert furnaces from
ferrosilicon production to silicon metal production if the silicon
metal order were not in place.”16 Globe Brief at 26. The ITC does
14
The ITC notes that the Brazilian respondents to the
questionnaire stated that they would require a significant amount
of time and money to convert furnaces for product-shifting. Views
of the Commission at 30, n.120 (confidential version); ITC Brief
at 30 (confidential version).
15
The ITC notes that the type of electrode normally used to
produce ferrosilicon (i.e., the self-baked or Söderberg type), if
used to produce silicon metal, will result in a higher iron
content than is acceptable by “at least some silicon metal
customers.” ITC Brief at 31, n.16. Replacing a Söderberg
electrode entails reinforcing the structure of the furnace
building and making certain other replacements. Id.
16
Globe states that its calculation “took into account (1)
(continued...)
Court No. 07-00011 Page 17
not contest the Globe formula, per se, but contends that “[t]he
per-unit cost of converting a ferrosilicon furnace to one producing
silicon metal is only one factor involved in analyzing economic
incentive, and is not the most important factor.”17 ITC Brief at 2.
The ITC points out that a number of non-price factors are
important in the purchase of silicon metal, noting that silicon
metal purchasers designated non-price factors such as product
consistency, reliability of supply, availability and delivery times
as “very important” more often than they listed price as “very
important.” ITC Brief at 14. The ITC also argues that beyond the
non-price factors listed above there are other significant barriers
and considerations which argue against any significant product
shifting. The ITC points out that ten of fourteen silicon metal
purchasers responding to its questionnaire require that all product
they purchase be “certified or prequalified . . . [and that] none
of the subject Brazilian producers was reported to be currently
certified or qualified to supply U.S. purchasers.”18 ITC Brief at
16
(...continued)
the difference between Brazilian producers’ per unit ferrosilicon
and silicon metal production costs, (2) the difference in the
ferrosilicon and silicon metal production volumes for converted
furnaces, and (3) the per-unit cost to convert furnaces from
ferrosilicon to silicon metal production.” Globe Brief at 24.
17
The ITC notes that “[i]n making its volume finding, [it]
focused its analysis on a number of factors, including pricing
data, with no single factor overriding another.” ITC Brief at 1.
18
The ITC also notes that certification may require as long
(continued...)
Court No. 07-00011 Page 18
15. Lastly, the ITC stressed that the Brazilian producers have
established profitable commercial relationships with EU companies,
which they would have to forgo to shift product to the U.S.19 Views
of the Commission at 16.
The Court therefore must assess whether the ITC reasonably
determined that the higher price20 of silicon metal versus
ferrosilicon over the last few years, when one factors in the non-
price factors and barriers to product-shifting, would not be enough
of an incentive to result in the likely volume of imports being
significant if the order were revoked. In answering this question,
18
(...continued)
as 18 months and that the certification and qualification process
may also be quite expensive. See ITC Brief at 15. The ITC adds
that this procedure would only make Brazilian producers eligible
to sell to these certification-requiring purchasers and would not
necessarily lead to actual sales. See id. Globe counters,
however, that there is evidence on the record that Brazilian
producers’ current qualification to sell to certain companies in
Brazil would enable them to obtain qualification to sell to those
same companies in the U.S. on an accelerated basis. Pl.’s Reply
Mot. J. Agency R.(“Globe Reply Brief”) at 12-13.
19
As would be expected, Globe points to evidence on the
record that it argues mitigates the ITC contentions on non-price
factors (“price was rated as a ‘“very important”’ or ‘“somewhat
important”’ factor by 14 out of 14 purchasers”);
licensing/prequalification (“subject Brazilian producers were
already qualified to sell to Alcoa in Brazil, which would enable
them to qualify for sales to Alcoa in the U.S. on an accelerated
basis”); and established EU relationships (“[Brazilian producers]
had only [confidential number] contracts that the Commission
considers long-term”). Globe Reply Brief at 12, 13; Globe Brief
at 7.
20
See supra for the Court’s discussion on the difference
between silicon metal and ferrosilicon prices.
Court No. 07-00011 Page 19
the Court finds that, as discussed supra, there is substantial
evidence on the record that a per-unit-cost-based analysis is but
one quantitative factor of many when considering product-shifting.
Furthermore, the Court finds that there is substantial evidence on
the record that non-price factors would be a very important
component to any decision by a Brazilian producer. These two
findings support the ITC determination that the evidence on the
record did not necessarily support a finding that product shifting
was technologically or financially attractive.
Therefore, the Court finds that the ITC’s conclusion that they
do not find that “Brazilian producers capable of doing so are
likely to shift production from ferrosilicon to silicon metal if
the order is revoked or that, even if some shifting were to occur,
it would lead to significant increases in subject imports from
Brazil”, to be reasonable and supported by substantial evidence on
the record. Views of the Commission at 18.
(ii) Product-shifting from silicomanganese to silicon metal
and the scope of the product-shifting investigation
Globe also raises the issue of a second type of potential
ferroalloy conversion that the ITC did not specifically consider -
shifting from silicomanganese to silicon metal production - and
notes that “Brazilian silicomanganese producer SIBRA . . .
converted two furnaces from silicomanganese to silicon metal in
Court No. 07-00011 Page 20
1997.”21 Globe Brief at 23. The ITC concedes that it did not
separately consider the potential of shifting from silicomanganese
to silicon metal production, but notes that “neither Globe nor any
other party mentioned silicomanganese production in their
prehearing briefs, at the hearing or in their posthearing briefs .
. . [and that] all parties focused on the ability to convert
furnaces used to produce ferrosilicon to those used to produce
silicon metal.” ITC Brief at 28. Accordingly, the ITC contends
that the statute requires addressing only “relevant arguments that
are made by [the] parties,” and the fact that this specific type of
conversion was not treated as an “important issue” by any of the
parties signifies its lack of relevance.22 Id.
Giving the Globe argument due consideration, the Court finds
that the ITC reasonably and supported by substantial evidence, made
a determination that product-shifting is a time-consuming and
costly option and that, more importantly, this option is in no way
guaranteed to lead to any financial gain. The fact that the ITC
21
Globe points out that silicon metal is produced in
submerged arc electric furnaces that can also be used to produce
other products, including ferrosilicon and silicomanganese. Globe
Brief at 10.
22
19 U.S.C. § 1677f(i)(3)(B) states:
the Commission shall include in a final determination of injury
an explanation of the basis for its determination that addresses
relevant arguments that are made by interested parties who are
parties to the investigation or review (as the case may be)
concerning volume, price effects, and impact on the industry of
imports of the subject merchandise.
Court No. 07-00011 Page 21
did not specifically investigate the potential for silicomanganese
product-shifting does not render the ITC determination erroneous
nor unsupported by substantial evidence nor does it mean that its
findings and conclusions only apply to that form of product-
shifting. The ITC’s finding as to non-price factors and pre-
qualification/certification, for instance, are not ferrosilicon-
producer specific. The ITC determination on product-shifting is
more comprehensive than the Globe narrow reading would have this
Court believe, and applies to producers of ferrosilicon as well as
silicomanganese.
Lastly, Globe argues that the ITC “[b]y restricting its
analysis to the production facilities of [a specific confidential
amount] Brazilian silicon metal producers subject to the order that
produce ferrosilicon - and excluding the production facilities of
ferrosilicon producers that did not currently produce silicon metal
and silicomanganese producers - the Commission unlawfully narrowed
its examination of this mandatory statutory factor.” Globe Brief
at 23 (confidential version). The ITC counters that “[c]ontrary to
Globe’s assertions, the ITC did not restrict its analysis to the
production facilities of [a specific confidential amount] Brazilian
producers; it referred to at least [a specific confidential
amount].” ITC Brief at 29 (confidential version).
The Court refers to its discussion supra on the general
applicability of the ITC’s product-shifting findings. The ITC’s
Court No. 07-00011 Page 22
determination on product-shifting is not limited to Brazilian
silicon metal producers subject to the order that also produce
ferrosilicon, but applies to product-shifting to silicon metal
generally. The Court finds therefore that the ITC’s analysis was
not restricted or deficient, as argued by Globe, and that the ITC
met its statutory obligation under § 1675a(a)(2)(D).
C. Contesting the Price and Volume Methodology
In each of the arguments posed by Globe it attacks the
substantiality of the evidence supporting the ITC's findings by
proffering its own evidence supporting the opposite conclusion or
cherry-picking from selective evidence on the record. Although,
for instance, the approach Globe has taken in its per-unit cost of
converting a furnace calculations has some merit, it also has its
problems, as discussed above. This Court has stated before that no
methodology is perfect and that weighing evidence and counter-
evidence must be left to the ITC as the expert fact-finder. See
Nippon Steel Corp., 458 F.3d at 1358.
As discussed supra, Globe’s challenge in contesting the ITC’s
final determination is not an easy one. Accordingly, the question
for this Court is “not whether we agree with the Commission's
decision, nor whether we would have reached the same result as the
Commission had the matter come before us for decision in the first
Court No. 07-00011 Page 23
instance.” United States Steel Group v. United States, 96 F.3d
1352, 1357 (Fed. Cir. 1996). Regarding the valid considerations
raised by Globe, it is important to note that the fact that a
challenging party seeking review:
can point to evidence [on the] record which detracts from
the evidence which supports the [International Trade]
Commission's decision and can hypothesize a reasonable
basis for a contrary determination is neither surprising
nor persuasive. It is not the function of a court to
decide that, were it the Commission, it would have made
the same decision on the basis of the evidence.
Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927,
936 (Fed. Cir. 1984). This Court “must affirm a Commission
determination if it is reasonable and supported by the record as a
whole, even if some evidence detracts from the Commission's
conclusion.” Altx, Inc. v. United States, 370 F.3d 1108, 1121
(Fed. Cir. 2004)(internal quotations omitted).
In formulating its final determination the ITC has considered
all requisite statutory factors, including many factors not
contested by Globe. While true that certain evidence on the record
detracts from its findings, it is also true that neither that
evidence nor Globe’s arguments necessitate a determination by this
Court that those findings are anything but reasonable or supported
by substantial evidence. The Court is satisfied that the ITC has
thoroughly explained the basis for its volume determinations and in
that process addressed the relevant arguments made by Globe
Court No. 07-00011 Page 24
concerning price incentives and product-shifting. Therefore, for
the reasons stated above, the Court finds that the ITC's
determination with respect to likely volume is reasonable,
supported by substantial evidence and otherwise in accordance with
law.
III. The ITC’s Findings On Likely Price Effects And Likely Impact
Are Supported By Substantial Evidence And Otherwise in Accordance
With Law
Plaintiff challenges the ITC's conclusions with respect to
likely price effects and likely impact on the domestic industry
only insofar as they incorporate the ITC's findings that likely
volume effects of the subject imports would not be significant.
Globe does not put forth an independent challenge to the ITC’s
findings on either price effect or the impact of imports of the
subject merchandise on the industry if the order is revoked.
As discussed supra, the Court affirms the ITC’s determination
that the likely volume of subject imports would not be significant
upon revocation of the order. The Commission's conclusions with
respect to likely volume are reasonable and supported by
substantial evidence - even though they may not be the only
possible reasonable conclusions to be drawn from the record.
Accordingly, because Globe’s arguments as to likely price effect
and impact are premised on the ITC’s likely volume finding, the
Court finds the ITC’s findings as to both reasonable, supported by
Court No. 07-00011 Page 25
substantial evidence and otherwise in accordance with law.
CONCLUSION
In accordance with the foregoing, the Court affirms the ITC
Determination. Plaintiff's motion for judgment upon the agency
record is denied, and this action is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: March 19, 2008
New York, New York