Elkem Metals Co. v. United States , 2004 CIT 49 ( 2004 )

SLIP OP. 04-49
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RICHARD K. EATON, JUDGE
__________________________________________
:
ELKEM METALS CO ., AMERICAN ALLOYS, INC ., :
APPLIED INDUSTRIAL MATERIALS CORP., AND :
CC METALS & ALLOYS, INC ., :
:
PLAINTIFFS , :
:
AND :
:
GLOBE METALLURGICAL, INC ., :
:
PLAINTIFF -INTERVENOR, :
:
V. : CONSOL. COURT NO . 99-10-00628
: PUBLIC VERSION
UNITED STATES OF AMERICA, :
:
DEFENDANT, :
:
AND :
:
FERROATLAN TICA 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. :
__________________________________________:
[United States International Trade Commission’s Second Remand Determination sustained in
part and remanded for further action in conformity with this opinion.]
Dated: May 12, 2004
Piper Rudnick, LLP (William D. Kramer, Martin Schaefermeier), Eckert Seamans Cherin
& Mellott, LLC (Dale Hershey, Mary K. Austin), and Howrey Simon Arnold & White, LLP (John
W. Nields, Jr., Laura S. Shores) for Plaintiff Elkem Metals Company.
Williams Montgomery & John, Ltd. (Theodore J. Low) for Plaintiff Applied Industrial
CONSOL. COURT NO . 99-10-00628 PAGE 2
Materials Corporation.
Arent Fox Kintner Plotkin & Kahn, PLLC (George R. Kucik, Eugene J. Meigher,
Stephanie Rigaux, James F. Laboe, Kate B. Briscoe), and Thelen Reid & Priest, LLP (Gerald
Zingone) for Plaintiff CC Metals & Alloys, Inc.
Dangel & Mattchen, LLP (Edward T. Dangel, III, Michael K. Mattchen) 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, Margaret Scicluna Rudin) for Defendant-Intervenor Ferroatlantica de Venezuela.
Hogan & Hartson, LLP (Mark S. McConnell) for Defendant-Intervenor General Motors
Corporation.
Greenberg Traurig, LLP (Philippe M. Bruno) 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 Lewin Berlin & Vrooman, LLP (Bruce Aitken, Virginie Lecaillon) for
Defendant-Intervenors Ronly Holdings, Ltd., Cheliubinski Electrometalurgical Works, Kuznetsk
Ferroalloy Works, Stakhanov Ferroalloy Works, and Zaporozhye Ferroalloy Works.
OPINION AND ORDER
EATON , Judge: This case is before the court following remand to the United States International
Trade Commission (“ITC”). In Elkem Metals Co. v. United States, 27 CIT __, 276 F. Supp. 2d
1296 (2003) (“Elkem V”), the court remanded the ITC’s negative determination contained in
Ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, USITC Pub. 3531,
Invs. Nos. 303-TA-23, 731-TA-566–570, and 731-TA-641 (Sept. 2002), List 1, Doc. 606R
(“First Remand Determination”). The ITC expressed its views on remand in Ferrosilicon from
CONSOL. COURT NO . 99-10-00628 PAGE 3
Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, USITC Pub. 3627, Invs. Nos. 303-
TA-23, 731-TA-566–570, and 731-TA-641 (Sept. 2003), List 1, Doc. 620R (“Second 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 expressed below, the court sustains the
Second Remand Determination in part and remands this matter for further action in conformity
with this opinion.
BACKGROUND
In 1998, the ITC was made aware that during its investigations of ferrosilicon, conducted
between January 1989 and June 1993, a price-fixing conspiracy existed among three major
domestic ferrosilicon producers, namely, plaintiffs Elkem Metals Co., American Alloys, Inc., and
SKW Metals & Alloys, Inc. (“SKW”), the predecessor firm to CC Metals & Alloys, Inc.
(“CCMA”) (collectively, “Plaintiffs” or “Conspirators”).1 This discovery resulted in the ITC’s
reconsideration, and ultimate reversal, of the affirmative material injury determinations that it
had made in 1993 and 1994. See Ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine,
and Venezuela, USITC Pub. 3218, Invs. Nos. 303-TA-23, 731-TA-566–570, and 731-TA-641
(Aug. 1999), List 1, Doc. 558AR (“Reconsideration Determination”).2 Plaintiffs appealed the
1
The “Original POI” covered the period from January 1989 through June 1993.
See Elkem V, 27 CIT at __, 276 F. Supp. 2d at 1299. The “Conspiracy Period” is the period from
October 1989 through June 1991. Id., 27 CIT at __, 276 F. Supp. 2d at 1300. The portion of the
Original POI preceding the Conspiracy Period, i.e., the first three quarters of 1989, is referred to
as the “Prior Period.” The portion of the Original POI following the Conspiracy Period, i.e.,
from July 1, 1991, to June 30, 1993, is referred to as the “Subsequent Period.”
2
The Reconsideration Determination contains the negative material injury and
(continued...)
CONSOL. COURT NO . 99-10-00628 PAGE 4
Reconsideration Determination on procedural and substantive grounds.3
After addressing the procedural issues presented, the court addressed the merits of
Plaintiffs’ challenge in Elkem V. There, the court held that the ITC’s use of best information
available (“BIA”), under the pre-URAA version of 19 U.S.C. § 1677e(c)4 was in accordance with
law, and it sustained, as supported by substantial evidence, the finding that declines in domestic
prices between 1989 and 1991 were attributable to the business cycle of ferrosilicon.5 Elkem V,
27 CIT at __, 276 F. Supp. 2d at 1305, 1307–08. The court also held that the ITC’s decision to
2
(...continued)
threat of material injury determinations that are the subject of this action. The ITC reaffirmed
these negative determinations in subsequent remand proceedings. See First Remand
Determination at 1, 23 & n.72; Second Remand Determination at 1, 14 & n.48.
3
For a more detailed account of the procedural history and background facts in this
case, see Elkem V, 27 CIT __, 276 F. Supp. 2d 1296, 1299–1301 (2003).
4
As the petitions in the original investigations were filed before January 1, 1995,
the amendments made by the Uruguay Round Agreements Act were not applicable to the original
determinations. See Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed. Cir. 1995). Thus,
on reconsideration the pre-URAA version of 19 U.S.C. § 1677e(c) continued to apply, which
states:
In making [its] determinations under this subtitle, . . . the
Commission shall, whenever a party or any other person refuses or
is unable to produce information requested in a timely manner and
in the form required, or otherwise significantly impedes an
investigation, use the best information otherwise available.
19 U.S.C. § 1677e(c) (1988).
5
In particular, the ITC discussed evidence in the record concerning declines in
demand and U.S. apparent consumption between 1989 and 1991, which coincided with declines
in domestic prices. See First Remand Determination at 26–27.
CONSOL. COURT NO . 99-10-00628 PAGE 5
make adverse inferences was in accordance with law,6 and it sustained, as supported by
substantial evidence, the adverse inference that the conspiracy affected prices during the
Conspiracy Period.7 Id., 27 CIT at __, 276 F. Supp. 2d at 1311. The court further found,
however, that substantial evidence did not support the ITC’s adverse inference that the price-
fixing conspiracy affected prices outside the Conspiracy Period. Accordingly, the court
instructed the ITC to
revisit its finding with respect to the time period outside of the
Conspiracy Period. If it should conclude that its findings on
remand with respect to this period are justified it shall: (1) state
with specificity the evidence that the price-fixing conspiracy
affected prices during the entire Original POI; (2) weigh the
evidence in the record concerning those portions of the Original
POI where the conspiracy was not judicially found to be operative;
and (3) explain with specificity what information in the record, if
any, supports the adverse inference made on remand that the
conspiracy affected prices during the periods preceding and
6
The court held that “[a]s with BIA, . . . the determinative factor in deciding if the
ITC was justified in making an adverse inference with respect to the effect of the price-fixing
conspiracy is whether the Conspirators significantly impeded the investigation.” Elkem V, 27
CIT at __, 276 F. Supp. 2d at 1309 (citing 19 C.F.R. § 207.8).
7
The ITC used an underselling analysis to support its adverse inference with
respect to the Conspiracy Period. The court found that
the ITC’s underselling finding is supported by substantial evidence
on the record. The ITC compared the prices of domestic
ferrosilicon charged by the Conspirators with the prices of
imported ferrosilicon and observed that during the Conspiracy
Period, imports of ferrosilicon undersold the domestic product
more frequently than in the months preceding and following the
conspiracy. . . . The court finds that the evidence cited by the ITC
fairly supports its conclusions with respect to the effect of the
conspiracy during the Conspiracy Period based on these
comparisons.
Elkem V, 27 CIT at __, 276 F. Supp. 2d at 1311.
CONSOL. COURT NO . 99-10-00628 PAGE 6
following the Conspiracy Period.
Id., 27 CIT at __, 276 F. Supp. 2d at 1315–16.
In its Second Remand Determination, the ITC revisited its finding that the price-fixing
conspiracy affected domestic prices of ferrosilicon outside the Conspiracy Period and modified
that finding. See Second Remand Determination at 14 (“In our 2002 determination, we found
that a significant condition of competition affecting domestic ferrosilicon prices throughout the
original periods of investigation was the price fixing conspiracy. . . . [W]e have modified this
finding to comply with the CIT’s instructions in [Elkem V].”). As a result, with respect to the
Prior Period, the ITC found that the conspiracy did not affect prices. Id. at 14 & n.47. With
respect to the Subsequent Period, it found that the conspiracy did affect prices. Id. at 14 (“We
now find that a significant condition of competition was that the price fixing conspiracy had
effects on prices charged by U.S. ferrosilicon producers during the Conspiracy Period and the
Subsequent Period.”).
In reaching its modified conclusions, the ITC determined that it would use BIA to
ascertain how prices were established during the Subsequent Period, reasoning that “[t]he
considerations that led the CIT to conclude that ‘[t]here is little doubt that the use of BIA was
warranted under the circumstances presented here,’ support[ed] use of BIA” on remand. Second
Remand Determination at 7 (quoting Elkem V, 27 CIT __, 276 F. Supp. 2d at 1304). The ITC
identified two evidentiary bases for its finding that the conspiracy affected prices during the
Subsequent Period. Specifically, the ITC considered: (1) its finding “that the conspiracy was a
CONSOL. COURT NO . 99-10-00628 PAGE 7
significant condition of competition affecting prices during the Conspiracy Period,” and (2) “the
pricing information in the record.” Id. at 9.
As to its findings with respect to the Subsequent Period, the ITC recalled the court’s
finding in Elkem V that substantial evidence supported the adverse inference that the price-fixing
conspiracy affected prices during the Conspiracy Period. See Second Remand Determination at
4. The ITC thus “compare[d] the prices that domestic ferrosilicon producers charged during the
latter portion of the Conspiracy Period [where the conspiracy was found to be a significant
condition of competition] with those charged during the Subsequent Period.”8 Id. at 9. The
purpose of this comparison was to “examine whether prices for the Subsequent Period solely
reflected market forces and represent the prices the producers would have charged during the
Subsequent Period in the absence of any price-fixing scheme during the Conspiracy Period.” Id.
In making this comparison, the ITC examined pricing data compiled by the Commission
staff for the last two quarters of the Conspiracy Period and selected quarters of the Subsequent
Period. See Second Remand Determination at 9. Upon examination of such data, it concluded
that “there are no significant differences in pricing patterns between the latter part of the
Conspiracy and the Subsequent Period,” id. at 10, and thus that the effects of the price-fixing
8
As discussed below, the ITC did not consider data from the entire eight quarters of
the Subsequent Period in determining that the conspiracy affected prices during that time.
Rather, the ITC variously selected data from the first, second, third, and fourth quarters to
support its finding that the conspiracy affected prices during the Subsequent Period. See Second
Remand Determination at 11–12 (discussing f.o.b. price data for sales made between the third
quarter of 1991 and the second quarter of 1992).
CONSOL. COURT NO . 99-10-00628 PAGE 8
conspiracy continued after the conspiracy had ended.9
In addition, the ITC found that the volume, price effects, and impact of subject imports
were not significant. See Second Remand Determination at 14–16. The ITC also adopted the
negative threat determination from its First Remand Determination. See id. at 14 n.48.
Therefore, the ITC reaffirmed its determination that the domestic ferrosilicon industry was
neither materially injured, nor threatened with material injury, by reason of imports of
ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela.
For the reasons set forth below, the court sustains the ITC’s finding that the price-fixing
conspiracy did not affect prices during the Prior Period, but does not sustain the finding that the
price-fixing conspiracy affected prices during the Subsequent Period, as this finding is not
supported by substantial evidence. Thus, the court remands the ITC’s findings as to the
Subsequent Period and its determinations with respect to the statutory factors in 19 U.S.C. §
1677(7)(C), i.e., volume, price effects, and impact, and 19 U.S.C. § 1677(7)(F), with respect to
9
In reaching this conclusion, the ITC emphasized that “our finding is not a finding
that the conspiracy lasted beyond the Conspiracy Period.” Second Remand Determination at 12.
The ITC further observed:
[C]oncluding that the conspiracy did not exist beyond the
Conspiracy Period does not require us to conclude that the
conspiracy did not have any further effects on prices. The case law
indicates that activity in restraint of trade in violation of the
Sherman Act may have continuing effects after its cessation.
Id. at 13 & n.46 (citing ES Dev., Inc. v. RWM Enters., Inc., 939 F.2d 547, 557 (8th Cir. 1991);
Wilk v. Am. Med. Ass’n, 895 F.2d 352, 369 (7th Cir. 1990)).
CONSOL. COURT NO . 99-10-00628 PAGE 9
material injury and the threat of material injury, so that the ITC may revisit and clearly explain its
findings.
STANDARD OF REVIEW
When reviewing a final determination in an antidumping or countervailing duty
investigation, “[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 ‘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. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere
scintilla.” Consol. Edison, 305 U.S. at 229. The existence of substantial evidence is determined
“by considering 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)).
DISCUSSION
CCMA challenges the Second Remand Determination on both legal and factual grounds.
First, CCMA argues that on remand the ITC should have applied legal standards from antitrust
law in evaluating the effects of the conspiracy outside the Conspiracy Period, and the ITC’s
failure to do so was legal error. Second, CCMA argues that the ITC’s use of BIA, to find that the
conspiracy affected prices during the Subsequent Period, was neither in accordance with law nor
CONSOL. COURT NO . 99-10-00628 PAGE 10
supported by substantial evidence. Third, CCMA argues that the ITC’s underselling findings in
the First and Second Remand Determinations are factually inconsistent and, thus, unsupported by
substantial evidence. Each argument is addressed below.
I. The ITC’s Decision To Apply Trade Law, Not Antitrust Law, To Evaluate The Effects
Of The Price-Fixing Conspiracy Outside The Conspiracy Period Was Proper
CCMA claims that on remand the ITC did not apply the proper standard for determining
whether the effects of the price-fixing conspiracy continued after the Conspiracy Period.
Specifically, CCMA argues for the use of the civil antitrust standard of causation to determine
damages. See Comments of CCMA on the Second Remand Determinations of the ITC
(“CCMA’s Comments”) at 4. CCMA asserts that under civil antitrust law, “to recover damages
for injury incurred after an antitrust conspiracy has ended, a plaintiff must prove that the
‘continuing damage [was] directly traceable to the defendants’ former unlawful interference,” by
way of “independent factual proof, not simply by inferences from the prior illegal conduct.” Id.(quoting William H. Rankin Co. v. Associated Bill Posters of United States and Canada, 42 F.2d
152, 155 (2d Cir. 1930), cert. denied, 282 U.S. 864 (1930)). CCMA argues that the ITC erred by
not “address[ing] the issue of whether the post-conspiracy prices charged by each individual
domestic producer somehow perpetuated the past conspiracy or could be directly attributed to it,”
and, therefore, that the ITC’s determination that the conspiracy affected prices during the
Subsequent Period “is wrong as a matter of law.” Id. at 7 (noting ITC did not evaluate
Conspirators’ “motives” in setting prices during the Subsequent Period).
CONSOL. COURT NO . 99-10-00628 PAGE 11
In response, the ITC argues that it properly applied the antidumping and countervailing
duty laws, and asserts that antitrust laws are not controlling as to its inquiry in its remand
proceedings. Rebuttal Comments of Def. ITC Supp. Second Remand Determination (“Def.’s
Comments”) at 12 (“The inquiry the Court directed the ITC to undertake in its second remand –
concerning factors affecting prices the domestic ferrosilicon industry charged during portions of
the original periods of investigation outside the Conspiracy Period – pertained to the antidumping
and countervailing duty laws.”). The ITC claims that pursuant to statute, it examined “‘factors
affecting domestic prices’ in determining whether there is material injury by reason of subject
imports.” Id. at 12–13 (quoting 19 U.S.C. § 1677(7)(C)(iii)(III) (1988)). The ITC reiterates that
its inquiry involved more than an examination of price levels, “but also of how domestic
producers established their prices,” and that “whether prices charged by the domestic industry
were based on competitive marketplace conditions, or other factors, is clearly pertinent to this
statutory inquiry.” Id. at 13. The ITC further asserts that while it cited antitrust cases in the
Second Remand Determination, see, e.g., supra note 9, it was for the limited purpose of
demonstrating that the effects of price-fixing conspiracies can be felt beyond the time the
conspiracy was operative. See Def.’s Comments at 16 n.9.
The court finds that the ITC did not commit legal error by failing to apply the civil
antitrust law standard of causation in evaluating the effects of the price-fixing conspiracy outside
the Conspiracy Period. By statute, Congress set forth the standards that the ITC must apply in
evaluating whether a domestic industry is materially injured, or is threatened with material injury,
CONSOL. COURT NO . 99-10-00628 PAGE 12
by reason of imports of subject merchandise.10 See 19 U.S.C. §§ 1673d(b)(1)(A)(i)–(ii), 1677(7).
Nowhere in the statutory scheme governing the ITC’s material injury determination did Congress
provide for the application of antitrust law standards of causation. The ITC is, however,
obligated to “evaluate all relevant economic factors which have a bearing on the state of the
industry in the United States . . . .” 19 U.S.C. § 1677(7)(C)(iii). That one of the factors it found
relevant was a price-fixing conspiracy did not, as CCMA contends, trigger any obligation on the
part of the ITC to examine the individual motives of the Conspirators. See USX Corp. v. United
States, 12 CIT 205, 212, 682 F. Supp. 60, 68 (1988) (noting that in the antidumping statute “there
is neither a scienter requirement . . ., nor evidence in the relevant legislative history that Congress
intended such a requirement.”). Thus, the court finds that the ITC did not commit legal error by
failing to apply antitrust standards to determine the effects of the conspiracy outside the
Conspiracy Period.
II. The ITC’s Decision To Use Best Information Available Is In Accordance With Law,
But Its Findings Based On BIA Are Not Supported By Substantial Evidence
A. In Accordance With Law
CCMA argues that the use of BIA in the Second Remand Determination was improper as
it led to a factually incorrect result. See CCMA’s Comments at 3. CCMA contends that “[t]here
is simply no evidence in the record to support the idea that the domestic producers submitted
false data to the Commission about their prices and pricing practices during the Prior and
10
As the court previously stated in Elkem V, “the ITC is charged by Congress to
administer the trade laws, and make its own findings, by means of its own investigation with
respect to material injury.” Elkem V, 27 CIT __, 276 F. Supp. 2d at 1313 (citing 19 U.S.C. §
1673d(b); Chung Ling Co. v. United States, 16 CIT 843, 849, 805 F. Supp. 56, 63 (1992)).
CONSOL. COURT NO . 99-10-00628 PAGE 13
Subsequent Periods.” Id. at 16 (“Ferrosilicon prices were in fact set by competition during the
Subsequent Period, as the industry witnesses uniformly stated . . . .”). CCMA argues that by
using BIA “the ITC gave in to the impermissible temptation ‘to overreach reality in seeking to
maximize deterrence.’” Id. at 17 (quoting F.Lli De Cecco di Filippo Fara S. Martino S.p.A. v.
United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)).
The ITC responds that its use of BIA was proper in light of the factual gaps in the record
resulting from the unreliable data submitted by the domestic producers. In considering “how it
could conduct [its] inquiry for portions of the original period of investigation outside the
Conspiracy Period in light of the lack of probative information in the record concerning how
producers representing the bulk of domestic production established prices, on the one hand, and
the direction of the . . . Court that it have an evidentiary basis for its findings, on the other,” the
ITC decided to use BIA. Def.’s Comments at 13. According to the ITC, BIA is “a technique
specifically authorized by the [antidumping/countervailing duty] statute and one that this Court
has already found is appropriate in this case.” Id. at 14. The ITC urges the court to find
reasonable the ITC’s use of BIA to fill the factual gaps in the record with respect to the
Subsequent Period. Id.
The court finds that the ITC’s use of BIA in the Second Remand Determination is in
accordance with law. CCMA has produced nothing to convince the court that the ITC’s
conclusions with respect to BIA should be limited to the Conspiracy Period. In Elkem V, the
court stated:
CONSOL. COURT NO . 99-10-00628 PAGE 14
There is little doubt that the use of BIA was warranted under the
circumstances presented here. No credible argument can be made
that the ITC questionnaires were answered truthfully and
responsively. It is uncontested that the questionnaires distributed
to the domestic producers requested information pertaining to the
way in which domestic prices for ferrosilicon were determined.
None of the Conspirators revealed the agreement to create a floor
price in their questionnaire responses. Rather, “the Commission
was told repeatedly that prices in the ferrosilicon market were
established solely on the basis of marketplace competition.”
Elkem V, 27 CIT at __, 276 F. Supp. 2d at 1304–05 (quoting First Remand Determination at 5;
footnote omitted). Thus, the ITC’s use of BIA was justified under 19 U.S.C. § 1677e(c) because
the Conspirators’ failure to divulge the existence of the price-fixing conspiracy “significantly
impeded” the ITC’s investigation. See id., 27 CIT at __, 276 F. Supp. 2d at 1305. CCMA’s
argument that “[t]here is . . . no evidence in the record to support the idea that the domestic
producers submitted false data to the Commission about their prices and pricing practices during
the Prior and Subsequent Periods” does not demand a different result. Even if the data submitted
by CCMA for the Prior and Subsequent Periods were accurate, this would not relieve CCMA of
the ITC’s justified finding that its activities significantly impeded the investigation. The
questionnaires distributed by the ITC requested information about the domestic producers’
pricing decisions, which was directly relevant to the ITC’s material injury determination. See
Reconsideration Determination at 9 (“[B]ecause price is so central an issue in Commission
antidumping and countervailing duty investigations, the testimony and written submissions that
parties present to the Commission often focus extensively on pricing issues.”). The
Conspirators’ failure to reveal the price-fixing scheme hindered the proper analysis of the
conditions of competition in the domestic ferrosilicon industry and any effects dumped and
CONSOL. COURT NO . 99-10-00628 PAGE 15
subsidized ferrosilicon imports may have had on domestic prices. Id. at 19 (noting that “the
producers concealed, if not manipulated, a competitive issue relevant to the Commission’s
evaluation of the meaning and significance of the observed market data.”). Thus, the ITC’s
decision to use BIA on remand was proper.
B. Substantial Evidence
The court next examines whether the ITC’s findings in the Second Remand
Determination are supported by substantial evidence. First, the court sustains the ITC’s finding
with respect to the Prior Period, i.e., that “[t]he available information . . . does not support a
finding that prices were established in the same manner during the Prior Period as during the
Conspiracy Period.” Second Remand Determination at 12 n.43. No party disputes the
reasonableness of this finding, and there is no evidence that the conspiracy affected prices prior
to its existence.
Second, the court finds that substantial evidence does not support the ITC’s conclusion
that the price-fixing conspiracy affected prices during the Subsequent Period. The ITC based this
conclusion on its finding that “there are no significant differences in pricing patterns between the
latter part of the Conspiracy Period and the Subsequent Period.” Second Remand Determination
at 10. The ITC found that the effects of the conspiracy were felt in the Subsequent Period
because (1) “there were no sudden shifts in domestic ferrosilicon producers’ pricing patterns
immediately after the conclusion of the Conspiracy Period,” i.e., that there was no price decline
immediately following the Conspiracy Period, (2) the existence of long-term contracts “help[ed]
CONSOL. COURT NO . 99-10-00628 PAGE 16
explain the absence of sudden price shifts,” (3) there was “no significant shift in the conspirators’
pricing patterns with respect to other domestic producers in the period following the Conspiracy
Period,” i.e., the Conspirators “frequently maintained higher prices or failed to match domestic
competitors’ price declines in the Subsequent Period,” and (4) the underselling data in the record
“[did] not detract” from its conclusion that “domestic ferrosilicon producers’ prices during the
Subsequent Period did not reflect competitive marketplace conditions,” because “there was not
any significant difference in the incidence of underselling between [the latter part of the
Conspiracy Period and the first two quarters of the Subsequent Period].”11 Id. at 10–12. The
court shall examine each of these findings in turn.
1. No Sudden Shifts In Domestic Ferrosilicon Producers’ Pricing Patterns
Immediately After The Conclusion Of The Conspiracy Period
The ITC found that “[t]he data indicate that there were no sudden shifts in domestic
ferrosilicon producers’ pricing patterns immediately after the conclusion of the Conspiracy
Period”:
[I]n the third quarter of 1991 (the quarter immediately following
the last quarter of the Conspiracy Period), prices charged by both
the conspirators and the domestic industry as a whole were higher
than those of the immediately preceding quarter. By contrast, if the
11
As an initial matter, the court notes that the findings that the ITC made to support
its conclusion that the conspiracy affected prices in the Subsequent Period are based on pricing
data from selected quarters of the Subsequent Period, not the entire Subsequent Period. For the
first of these findings, with respect to “no sudden shifts” in the domestic producers’ pricing
patterns, the ITC considered data from the first quarter of the Subsequent Period only. The third
finding, with respect to “no significant shift” in the Conspirators’ pricing patterns, was based on
data from the first, second, third, and fourth quarters. The fourth finding, with respect to
underselling, was based on data from the first two quarters of the Subsequent Period. The ITC
did not explain its reasons for limiting its analysis in this way.
CONSOL. COURT NO . 99-10-00628 PAGE 17
effects of the conspiracy on prices were limited solely to the
Conspiracy Period, one would expect an immediate decline from
prices established by a conspiracy, which would be at inflated
levels relative to a “true” market price, to prices established by
marketplace considerations.
Second Remand Determination at 10 (emphasis added). This finding cannot be sustained as it is
not supported by substantial evidence.
By asserting that “one would expect an immediate decline from prices established by a
conspiracy,” the ITC seems to be saying that the prices charged by both the Conspirators and
non-conspirators should have been expected, as a result of market forces, to decline following
the Conspiracy Period. However, at no point did the ITC endeavor to put this “expectation” in
context. That is to say, the ITC neither analyzed factors such as supply and demand that would
function to keep prices up or to drive prices down, nor indicated why an immediate drop in prices
would be expected in the context of the business cycle or any other existing marketplace
conditions, as it is required to do by statute. See 19 U.S.C. § 1677(7)(C)(iii) (instructing the ITC
to evaluate “all relevant economic factors . . . within the context of the business cycle and
conditions of competition that are distinctive to the affected industry.”). The ITC’s failure to
consider the business cycle or marketplace conditions is particularly puzzling considering the
importance the ITC attached to these conditions in its analysis in the First Remand
Determination.12 Indeed, it was the ITC’s discussion of these conditions that the court found
12
Previously, the ITC relied on evidence concerning demand trends and U.S.
apparent consumption. As noted in Elkem V:
[In the Reconsideration Determination,] [f]irst, the ITC found that
(continued...)
CONSOL. COURT NO . 99-10-00628 PAGE 18
substantiated the ITC’s finding, using BIA, that the business cycle was a reason for the drop in
domestic prices during the Conspiracy Period. Elkem V, 27 CIT __, 276 F. Supp. 2d at 1306.
Here, the ITC nowhere adequately explained why it was the effects of the conspiracy, and not the
business cycle, that caused the prices charged by “the domestic industry as a whole” to become
elevated. The ITC also failed to indicate the magnitude of the price decline that “one would
12
(...continued)
“ferrosilicon prices reached a peak in 1989 when demand was
exceptionally high.” Second, it found “[d]emand declined
significantly from 1990 to 1991 due to a recession that reduced
demand for the products in which ferrosilicon was used as an
input; consequently, prices fell as well, although only to
historically average levels.” The ITC thus concluded that these
facts “indicate[d] that a reason for the price depression was the
business cycle for ferrosilicon,” rather than underselling by subject
imports.
In the [First] Remand Determination the ITC affirmed these
findings, observing that “declines in ferrosilicon prices from 1989
to 1991 largely parallel changes in demand” and that “in 1992,
when demand increased somewhat, there were also price increases
for some domestically produced ferrosilicon products.” The ITC
supplemented this demand analysis with an examination of U.S.
apparent consumption . . . . It determined that consumption
“declined by 5.1 percent from 1989 to 1990 and by 12.4 percent
from 1990 to 1991,” and that despite increases in consumption
between 1991 and 1992 the evidence showed that “the 1992
apparent consumption quantity was still below that of 1989 or
1990.” The ITC continued:
In instances of falling demand, we would generally
expect prices to decline. This is particularly true in
light of the difficulty in modulating ferrosilicon
production to reflect changes in demand.
Ferrosilicon is produced in furnaces that must be
continuously run and cannot be easily and quickly
switched to or from production of other products.
Elkem V, 27 CIT __, 276 F. Supp. 2d at 1305–06 (citations omitted).
CONSOL. COURT NO . 99-10-00628 PAGE 19
expect” following the end of the Conspiracy Period. Second Remand Determination at 10.
Without some discussion of what market prices “one would expect,” the ITC’s statement
amounts to mere conjecture, which is not enough to meet the substantial evidence standard. See
China Nat’l Arts & Crafts Imp. & Exp. Corp. v. United States, 15 CIT 417, 424, 771 F. Supp.
407, 413 (1991) (“Guesswork is no substitute for substantial evidence in justifying decisions.”).
As the ITC’s finding is not supported by “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” the court cannot sustain this finding. Consol.
Edison, 305 U.S. at 229.
On remand, the ITC shall (1) determine the “‘true’ market price” the ITC referenced in its
Second Remand Determination at 10, (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 conspiracy 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.
2. The Existence Of Long-Term Contracts
In addition, the ITC found that the existence of quarterly, semiannual, and one-year, i.e.,
long-term, contracts “help[ed] explain the absence of sudden price shifts”:
Most product sold by U.S. ferrosilicon producers was sold pursuant
to quarterly or semiannual contracts. Additionally, some
ferrosilicon was sold pursuant to one-year contracts (although, in
CONSOL. COURT NO . 99-10-00628 PAGE 20
these contracts, the price was not necessarily fixed for the entire
year). In light of the existence of such contracts, even if there were
dramatic shifts in producers’ pricing behavior – something the
record indicates did not happen – the effects on the market would
not be immediate.
Second Remand Determination at 11 (citation omitted). This finding cannot be sustained as the
ITC did not explain its reasoning.
The ITC seems to have found that the pricing patterns that marked the Conspiracy Period
could be expected to continue into the Subsequent Period, in part because of certain contracts
already in existence at the start of the Subsequent Period. However, the ITC did not state when
these contracts were entered into such that any meaningful price comparison is possible. For
example, the weighted average net f.o.b. selling price for Product 113 charged by the Conspirators
in the last quarter of the Conspiracy Period was [[ ]] per pound. See Mem. INV-Z-116
(July 22, 2002), List 2, Doc. 797R (“Remand Staff Report”), tbl. III-1. In the first quarter of the
Subsequent Period, the selling price of ferrosilicon charged by the Conspirators was somewhat
higher [[ ]]. Id. Non-conspirator AIMCOR’s selling price in the first quarter of the
Subsequent Period was [[ ]]. Id. Thus, if a contract were entered into in
the second quarter of 1991, i.e., the last quarter of the Conspiracy Period, it may have tended to
keep prices [[ ]] since a [[ ]] selling price was obtained in the third quarter of 1991,
i.e., the first quarter of the Subsequent Period. In addition, the ITC itself stated that “in these
[one-year] contracts, the price was not necessarily fixed for the entire year,” Second Remand
13
Product 1 is ferrosilicon containing 75% silicon that was sold to U.S. steel
producers.
CONSOL. COURT NO . 99-10-00628 PAGE 21
Determination at 11, thus suggesting that any price lag resulting from these contracts would not
extend over the entire Subsequent Period. Without more analysis, the ITC’s conclusion that the
existence of long-term contracts “helps explain” the absence of shifts in pricing patterns, while
plausible, cannot be sustained. See SEC v. Chenery, Corp., 332 U.S. 194, 196 (1947) (“If the
administrative action is to be tested by the basis upon which it purports to rest, that basis must be
set forth with such clarity as to be understandable.”).
On remand, the ITC shall either demonstrate, by reference to specific record evidence,
including specific contract language and the dates the specific contracts were executed and the
prices provided for therein, that contracts tended to keep prices up in the Subsequent Period or
reconsider its decision to rely on such contracts.
3. No Significant Shift In The Conspirators’ Pricing Patterns With Respect
To Other Domestic Producers In The Subsequent Period
Next, the court examines the ITC’s finding that there was “no significant shift in the
conspirators’ pricing patterns with respect to other domestic producers in the period following
the Conspiracy Period.” Second Remand Determination at 11. The ITC reasoned:
In several instances, when prices declined, the conspirators reduced
prices less than other domestic producers that were not members of
the conspiracy. In other instances, the conspirators maintained
prices that were higher than the prices of the other producers.
Whatever the conspirators’ individual motives in setting these
prices, the fact that they frequently maintained higher prices or
failed to match domestic competitors’ price declines in the
Subsequent Period militates against any finding that the
conspirators’ prices in the Subsequent Period reflected solely
marketplace conditions.
CONSOL. COURT NO . 99-10-00628 PAGE 22
Id. (emphasis added). Thus, the ITC concluded that “prices charged by both the conspirators and
the domestic industry as a whole during the Subsequent Period were not the result of competitive
marketplace conditions.” Id. at 12. Here, again, the ITC’s analysis falls short.
First, the ITC discounts the possibility that prices charged by the Conspirators and the
other domestic producers during the “period following the Conspiracy Period” were “solely” the
result of marketplace conditions without engaging in any discussion as to what those marketplace
conditions were. Unlike in the First Remand Determination, here, the ITC failed to consider
non-price factors, such as demand and U.S. apparent consumption. See discussion supra Part
II.B.1. It is clear from the Remand Staff Report that such factors can affect the price of
ferrosilicon. See Remand Staff Report at III-1 (“Ferrosilicon prices can fluctuate based on
demand factors such as the business cycle and the size of an order, and on supply factors such as
the distance shipped, the mode of transportation, inventory levels, and the price of electrical
power.”). While the ITC conceded that marketplace conditions are important, see, e.g., Def.’s
Comments at 13, (“[W]hether prices charged by the domestic industry were based on competitive
marketplace conditions, or other factors, is clearly pertinent to this statutory inquiry.”), it made
no serious effort to determine what they were.
Second, the pricing data support the ITC’s finding that the Conspirators’ prices,
considered in the aggregate, either declined by less or increased by fractions of a penny more
than those of other domestic producers, i.e., non-conspirators, during the quarters the ITC chose
CONSOL. COURT NO . 99-10-00628 PAGE 23
to examine, i.e., the first, second, third, and fourth quarters of the Subsequent Period.14 It cannot
be said, however, that substantial evidence supports the ITC’s finding that the Conspirators
“frequently maintained higher prices” than their non-conspiring domestic competitors during the
Subsequent Period.15 The court examines the pricing data in the record for sales of Product 1 and
Product 2.16
With respect to Product 1, the data show that the Conspirators’ prices, considered in the
aggregate, were [[ ]] than the prices charged by non-conspirator AIMCOR and the
weighted-average price for all reporting domestic producers, i.e., Conspirators and non-
conspirators combined, in every quarter during the Subsequent Period for which data were
represented in the Remand Staff Report, i.e., in the third and fourth quarters of 1991 and the first,
14
For Product 1, the ITC noted that the Conspirators in the aggregate experienced a
price decline of [[ ]] between the third quarter of 1991 and the first quarter of 1992,
whereas AIMCOR experienced [[ ]] price decline of [[ ]] during that period. The
ITC went on to note that in the second quarter of 1992, the Conspirators price increased by [[
]] from the prior quarter, whereas AIMCOR’s price increased by [[ ]] amount, i.e., [[
]]. Similar price increases and decreases were noted for Product 2. See Non-Pub.
Second Remand Determination, List 2, Doc. 801R at 12 nn.39, 41.
15
With respect to prices charged by non-conspirators during the Subsequent Period,
the ITC examined individual company data for AIMCOR, but not Globe. See Non-Pub. Second
Remand Determination, List 2, Doc. 801R at 12 & n.39; see Remand Staff Report, tbls. III-1, -2,
& -3. Therefore, for purposes of comparing prices charged by non-conspiring companies during
the Subsequent Period and those charged by the individual Conspirators, the court compares
AIMCOR’s pricing data with data for each of the Conspirators individually, as reported in
questionnaire responses.
16
Product 2 is ferrosilicon containing 50% silicon that was sold to U.S. steel
producers and U.S. iron foundries.
CONSOL. COURT NO . 99-10-00628 PAGE 24
second, and third quarters of 1992. See Remand Staff Report, tbl. III-1.17 Similarly, when
disaggregated data for individual companies are considered, they reveal that conspirator
American Alloys [[ ]] non-conspirator AIMCOR18 from the third quarter of 1991 to the
first quarter of 1992.19 Conspirator Elkem Metals [[ ]] AIMCOR in the third and
fourth quarters of 1991.20 Conspirator SKW (now CCMA) [[ ]] AIMCOR in the
fourth quarter of 1991 and the first quarter of 1992.21 Thus, the available pricing information for
Product 1 does not appear to support the ITC’s finding that the Conspirators “frequently
maintained higher prices” than their domestic competitors’ prices in the Subsequent Period.
17
The court notes that the data represented in the Remand Staff Report, which the
ITC cited, were compiled from responses to ITC questionnaires.
18
AIMCOR reported pricing data for Product 1 sales in the third and fourth quarters
of 1991 and the first quarter of 1992.
19
American Alloys reported pricing data for Product 1 sales in the third and fourth
quarters of 1991 and the first quarter of 1992, which show that American Alloys [[ ]]
AIMCOR in each quarter. For example, in the third quarter of 1991, American Alloys’ selling
price was [[ ]], and AIMCOR’s selling price was [[ ]]. See American Alloys’
Prod. Ques. Resp., V.A.1; AIMCOR’s Prod. Ques. Resp., V.A.1.
20
Elkem Metals reported pricing data for Product 1 sales in the third and fourth
quarters of 1991. In the third quarter of 1991, Elkem Metals’ selling price was [[ ]], and
AIMCOR’s selling price was [[ ]]. In the fourth quarter, Elkem Metals’ selling price
was [[ ]], and AIMCOR’s was [[ ]]. See Elkem Metals’ Prod. Ques. Resp.,
V.A; AIMCOR’s Prod. Ques. Resp., V.A.1.
21
SKW reported pricing data for Product 1 sales from the third quarter of 1991 to
the third quarter of 1992. As noted supra note 18, similar data for AIMCOR are available for the
third and fourth quarters of 1991 and the first quarter of 1992. While in the third quarter of 1991,
SKW’s selling price ([[ ]]) was [[ ]] than AIMCOR’s ([[ ]]), in
the fourth quarter of 1991, SKW’s selling price ([[ ]]) was [[ ]] than AIMCOR’s
([[ ]]). In the first quarter of 1992, SKW’s selling price ([[ ]]) was again [[
]] than AIMCOR’s ([[ ]]). See SKW’s Prod. Ques. Resp., V.A; AIMCOR’s Prod.
Ques. Resp., V.A.1.
CONSOL. COURT NO . 99-10-00628 PAGE 25
With respect to Product 2, the Conspirators’ aggregated data from the quarters considered
by the ITC support its finding. The Conspirators’ prices, considered in the aggregate, were [[
]] than their non-conspiring domestic competitors’ prices in [[ ]] comparisons
from the third quarter of 1991 to the third quarter of 1992. See Remand Staff Report, tbls. III-2,
III-3. However, the data for the individual Conspirators are mixed. Disaggregated data for the
individual Conspirators indicate that while conspirator Elkem Metals [[
]] non-conspirator AIMCOR,22 in sales to both U.S. steel producers and U.S. iron foundries
from the third quarter of 1991 to the first quarter of 1992,23 Conspirators American Alloys24 and
SKW25 [[ ]] AIMCOR in sales to both steel producers and iron foundries in that
22
AIMCOR reported pricing data for Product 2 sales in the third and fourth quarters
of 1991 and the first quarter of 1992.
23
Elkem Metals reported pricing data for Product 2 sales from the third quarter of
1991 to the third quarter of 1992. Elkem Metals’ prices were [[ ]] AIMCOR’s in the third
and fourth quarters of 1991 and the first quarter of 1992. For example, in the third quarter of
1991, Elkem Metals’ selling price was [[ ]] in sales to steel producers and [[ ]]
in sales to iron foundries. AIMCOR’s selling price was [[ ]] for sales to steel producers
and [[ ]] in sales to iron foundries. Elkem Metals’ Prod. Ques. Resp., V.A at 36, 37;
AIMCOR’s Prod. Ques. Resp., V.A.1 & V.B.
24
American Alloys reported pricing data for Product 2 sales in the third and fourth
quarters of 1991 and the first quarter of 1992. The data reveal that American Alloys’ prices were
[[ ]] than AIMCOR’s. For example, in the third quarter of 1991, American Alloys’ selling
price was [[ ]] in sales to steel producers and [[ ]] in sales to iron foundries.
AIMCOR’s selling price was [[ ]] in sales to steel producers and [[ ]] in sales to
iron foundries. See American Alloys’ Prod. Ques. Resp., V.A.1 & V.B; AIMCOR’s Prod. Ques.
Resp., V.A.1 & V.B.
25
SKW’s questionnaire response contained pricing data for Product 2 sales from the
third quarter of 1991 to the third quarter of 1992. According to data contained in SKW’s and
AIMCOR’s responses, SKW’s selling price was [[ ]] than AIMCOR’s in sales to steel
producers in the third and fourth quarters of 1991, but not the first quarter of 1992. In sales to
iron foundries, SKW’s selling price was [[ ]] than AIMCOR’s in the third and fourth
(continued...)
CONSOL. COURT NO . 99-10-00628 PAGE 26
period.
Thus, when available pricing data for Product 1 and Product 2 are considered as a whole,
the ITC’s finding that the Conspirators frequently maintained higher prices than non-conspiring
domestic producers is not supported by substantial evidence. With respect to Product 1, the
Conspirators’ prices, considered in the aggregate and individually, were [[ ]] than their
competitors’ prices. With respect to Product 2, the data from the quarters considered by the ITC
are, at best, mixed. Thus, the court cannot sustain the ITC’s finding that the Conspirators
“frequently maintained higher prices” than their non-conspiring domestic competitors.
On remand, the ITC shall revisit its finding that the Conspirators frequently maintained
higher prices than their domestic competitors in the Subsequent Period and (1) consider evidence
with respect to the non-price factors that existed during the entire Subsequent Period, not only
the first, second, third, and fourth quarters of that period, or explain the absence of such evidence
in the record and the steps it has taken to account for any missing data, (2) state with specificity
the non-price factors it found to exist during the Subsequent Period and explain their relevance to
the ITC’s finding that the Conspirators frequently maintained higher prices than their domestic
competitors, (3) consider data for each of the Conspirators, i.e., disaggregate the pricing data, and
either (a) identify sufficient record evidence to support its finding, or (b) reconsider whether the
record fairly supports its finding, and (4) state with specificity what difference in price it would
25
(...continued)
quarters of 1991 and the first quarter of 1992. See SKW’s Prod. Ques. Resp., V.A., at 36, 37;
AIMCOR’s Prod. Ques. Resp., V.A.1 & V.B.
CONSOL. COURT NO . 99-10-00628 PAGE 27
consider material in the context of this inquiry, and why.
4. No Significant Difference In The Incidence Of Underselling
The court next examines the ITC’s finding with respect to the incidence of underselling
during the Subsequent Period. The ITC found that the underselling data in the record, used in the
First Remand Determination to demonstrate that the conspiracy affected domestic prices during
the Conspiracy Period, “do not detract” from its finding that “domestic ferrosilicon producers’
prices in the Subsequent Period did not reflect competitive marketplace conditions.” Second
Remand Determination at 12. As noted in Elkem V:
[T]he ITC found that for the Conspirators the frequency of
underselling was “significantly higher during the conspiracy period
than during the preceding or following period[]”:
For the three conspirators, the frequency of
underselling based on delivered prices was 80
percent (24 of 30 comparisons) during the
conspiracy period (the fourth quarter of 1989
through the second quarter of 1991) and 61.8
percent (21 of 34 comparisons) during the non-
conspiracy period . . . .
The ITC found that the higher incidence of underselling during the
Conspiracy Period was “consistent with the theory that the
conspiracy would tend to inflate the conspirators’ prices as
compared to the fair price that would have otherwise been
established in the U.S. market during the time of the conspiracy.”
Elkem V, 27 CIT __, 276 F. Supp. 2d at 1309 (quoting First Remand Determination at 18;
citations to the record omitted). In contrast, however, in the Second Remand Determination, the
ITC found:
The subject imports undersold the domestically produced product
CONSOL. COURT NO . 99-10-00628 PAGE 28
in 5 of 8 comparisons during the last two quarters of the
Conspiracy Period and 7 out of 9 comparisons during the first two
quarters of the Subsequent Period. Thus, there was not any
significant difference in the incidence of underselling between
these two periods.
Second Remand Determination at 12 (footnotes omitted).26 Thus, on remand the ITC found that
underselling, for a portion of the Subsequent Period, was even more pronounced than during the
Conspiracy Period.
CCMA contends that “the underselling findings of the [First Remand Determination] are
factually inconsistent with the findings now on appeal.” CCMA’s Comments at 11. CCMA
converts the underselling comparisons into percentages and argues that they reveal “that the
domestic producers were undersold by the importers 62.5% of the time during the Conspiracy
Period (5 out of 8 sales) and 77.8% of the time during the Subsequent Period (7/9),” and that
“[t]his is the direct opposite of the underselling pattern noted by the ITC in its [First Remand
Determination].” Id. at 12. In addition, CCMA contends that the ITC’s finding that “there are no
significant differences in pricing patterns between the latter part of the Conspiracy [Period] and
the Subsequent Period,” cannot be sustained because “it is based on selective evidence, not on a
weighing of the full pricing record for the Subsequent Period as this Court ordered and the law
requires.” Id. (citing Altx, Inc. v. United States, 25 CIT __, __, 167 F. Supp. 2d 1353, 1363
(2001)).
26
The ITC claimed that the underselling analysis sustained in Elkem V was not
tantamount to a finding that normal market forces were at work outside the Conspiracy Period.
Second Remand Determination at 9.
CONSOL. COURT NO . 99-10-00628 PAGE 29
The ITC urges the court to reject CCMA’s arguments. As to CCMA’s challenge to the
factual basis of the ITC’s underselling finding on second remand, the ITC asserts that “[e]ven
if . . . the ITC should be estopped from finding the percentage differences between the [latter
portion of the Conspiracy Period and the initial portion of the Subsequent Period] not to be
significant, this would not call into question the validity of the ITC’s underlying finding that
prices were not established pursuant to competitive marketplace forces during the Subsequent
Period.” Def.’s Comments at 27 n.17. The ITC goes on to argue:
In light of the inferences the ITC made in its [First Remand
Determination] concerning the underselling data, [i.e., that the
incidence of underselling was higher during the Conspiracy
Period,] the only implications that it could draw in finding a
significant difference between the incidence of underselling during
the latter portion of the Conspiracy Period and the somewhat
greater incidence of underselling during the initial portion of the
Subsequent Period was that the domestic industry’s prices were
even less likely to be established pursuant to competitive
marketplace forces in the Subsequent Period than during the
Conspiracy Period.
Id. (emphasis in original). Thus, the ITC seems to be saying here that the existence of
underselling established that the conspiracy was even more effective during the Subsequent
Period than during the Conspiracy Period itself.
The court finds that the underselling findings made in the First and Second Remand
Determinations are not necessarily factually inconsistent with each other because the ITC looked
at different time periods in making those findings. In the First Remand Determination, the ITC
compared underselling data for the Conspiracy Period with data from the quarters preceding and
CONSOL. COURT NO . 99-10-00628 PAGE 30
following that period27 to arrive at its conclusion that the frequency of underselling was
“significantly higher” during the Conspiracy Period. In the Second Remand Determination, the
ITC determined that there was no “significant difference” in the incidence of underselling by
focusing on the last two quarters of the Conspiracy Period and the first two quarters of the
Subsequent Period. It may be the case that the incidence of underselling was not significantly
different in those time periods, while, on the whole, the incidence of underselling was
significantly higher during the Conspiracy Period than during the Prior and Subsequent Periods
combined. Thus, CCMA’s argument, in this respect, is unpersuasive.
However, the court agrees with CCMA that the ITC did not consider the full record in
making its underselling finding. The ITC evaluated data from the last two quarters of the
Conspiracy Period, i.e., January through June 1991, and the first two quarters of the Subsequent
Period, i.e., July through December 1991. That is to say, the ITC examined neither the entire
Conspiracy Period nor the entire Subsequent Period. Moreover, there is no evidence that data
from the initial two quarters of the Subsequent Period were probative of what, if any, effect the
conspiracy might have had on domestic prices during the remainder of that period. The Remand
Staff Report contains data covering the first quarter of 1989 through the third quarter of 1992,28
27
In the First Remand Determination, the ITC made comparisons based on data
contained in the Remand Staff Report, which covers January 1989 through October 1992.
Therefore, the ITC had before it data for the entire Prior Period, but not the entire Subsequent
Period. See First Remand Determination at 18 n.57 (citing tbls. III-1–6, III-7a–c, III-8a–c, III-
9a–b).
28
The remaining portion of the Subsequent Period, i.e., the fourth quarter of 1992
through the second quarter of 1993 is unaccounted for. This may be because the data collected
(continued...)
CONSOL. COURT NO . 99-10-00628 PAGE 31
yet the ITC did not consider data from any quarter after the fourth quarter of 1991. It must
account for the entire Subsequent Period on remand.
The underselling analysis in the First Remand Determination was arrived at using both
the device of adverse inferences and by direct evidence relating to the incidence of underselling.
The ITC used underselling to demonstrate that domestic prices were affected by the conspiracy
during the Conspiracy Period. See Elkem V, 27 CIT __, 276 F. Supp. 2d at 1309. The evidence
cited to prove that the conspiracy affected prices during the Conspiracy Period, however, tends to
support the proposition that the conspiracy did not affect prices during either the Prior Period or
the Subsequent Period. The ITC’s attempts to diminish the importance of this evidence and the
conclusions it previously drew from such evidence are unavailing:
[P]rices the domestic industry charged vis a vis the subject imports
were inflated during the Conspiracy Period relative to other
portions of the original periods of investigation. While the analysis
could also support an inference that the effects of the conspiracy on
prices were greatest during the Conspiracy Period, it does not
necessarily follow from this that the conspiracy had no effects
during other periods. To make such a conclusion, the Commission
would first need to have quantified the effects the conspiracy had
on prices. The Commission was not required by either the statute
or [Elkem V] to engage in such an exercise, and it did not attempt
to do so.
28
(...continued)
for that period of time are incompatible with the data collected for the other portions of the
Original POI, as counsel for the ITC contends, but nowhere did the Commissioners themselves
offer that as a reason why they did not consider data encompassing the entire Subsequent Period.
See Def.’s Comments at 18 (quoting Remand Staff Report at III-1 n.1). “The courts may not
accept appellate counsel’s post hoc rationalizations for agency action . . . . For the courts to
substitute their or counsel’s discretion for that of the [agency] is incompatible with the orderly
functioning of the process of judicial review.” See Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168–69 (1962) (quoting Chenery, 332 U.S. at 196).
CONSOL. COURT NO . 99-10-00628 PAGE 32
Second Remand Determination at 8–9 (footnote omitted). While it is true that the ITC was not
explicitly obliged to go through the exercise of quantifying the effects the conspiracy had on
prices during the Subsequent Period in order to find that the conspiracy affected prices during
that time frame, it may well be that the demands of substantial evidence indicate its necessity in
light of its previous findings. Should the ITC hope to establish by substantial evidence that the
conspiracy affected prices during the Subsequent Period, a baseline would be useful.
The ITC was obliged to cite substantial evidence demonstrating its claim that the
conspiracy affected prices in the Subsequent Period. On remand, the ITC shall, taking into
account data from the entire Subsequent Period, determine whether the record fairly supports the
ITC’s finding that there was “no significant difference” in the incidence of underselling during
the Conspiracy Period and the Subsequent Period, and cite the specific record evidence, if any,
that supports such a finding. In addition, it shall state with specificity why its findings are not at
odds with a finding that underselling tended to establish that the conspiracy affected prices
during the Conspiracy Period.
CONCLUSION
In light of the foregoing, the court sustains the ITC’s finding with respect to the Prior
Period, but not with respect to the Subsequent Period, as the latter is not supported by substantial
evidence. That is, the ITC failed to support its findings with “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Consol. Edison, 305 U.S. at
229. While it is the duty of the ITC to weigh the evidence, see Altx, 25 CIT at __, 167 F. Supp.
CONSOL. COURT NO . 99-10-00628 PAGE 33
2d at 1361 n.9, and draw reasonable inferences therefrom, see Corus Staal BV v. United States
Int’l Trade Comm’n, 27 CIT __, __, slip op. 03-02 (Mar. 21, 2003), aff’d without opinion, 85
Fed. Appx. 772 (Fed. Cir. 2004), it may not reach its conclusions based on mere surmise. See
China Nat’l, 15 CIT at 424, 771 F. Supp. at 413. Here, the ITC has not supported all of its
conclusions with substantial evidence. Thus, the court remands the ITC’s conclusion that the
conspiracy affected prices during the Subsequent Period for consideration by the ITC in
accordance with this opinion. Upon consideration of the issues discussed herein, the ITC shall
also revisit its findings with respect to volume, price effects, impact, and the statutory threat
factors and state each of its conclusions clearly and with citations to the specific record evidence
that it finds supports those conclusions. Such remand results are due within ninety days of the
date of this opinion, comments are due thirty days thereafter, and replies to such comments
eleven days from their filing.
/s/ Richard K. Eaton
Richard K. Eaton, Judge
Dated: May 12, 2004
New York, New York