American Silicon Technologies v. United States

RADER, Circuit Judge.

In this silicon metal antidumping case, the United States Department of Commerce (Commerce) initially assessed the dumper’s financial costs using the consolidated financial statements of its ultimate Belgian parent. The United States Court of International Trade remanded the case to Commerce with instructions to recalculate the dumping company’s financial costs by examining the records of only its immediate Brazilian parent. Because the Court of International Trade did not allow Commerce to examine the entire record to determine financial costs, this court reverses.

I.

In 1991, Commerce found that Compan-hia Brasileira Carbúrete de Calcio (CBCC), a Brazilian producer and exporter of silicon metal, had dumped its product in the United States. Commerce then undertook to determine a duty under 19 U.S.C. § 1675(a)(2)(A). Accordingly, Commerce examined silicon metal entering from Brazil for the period from July 1, 1994 to June 30, 1995. During its review, Commerce learned that Solvay do Brasil (Brasil) owns 99.9% of CBCC. Moreover, Solvay & Cie of Belgium (Solvay) owns 100% of Brasil, CBCC’s parent. Thus, in computing CBCC’s finance costs — a key component of the dumping margin — Commerce determined that Belgian Solvay was the. ultimate parent corporation of CBCC.

Because Commerce found that Belgian Solvay was CBCC’s ultimate parent, Commerce used Solvay’s 1994 consolidated financial statements to set CBCC’s dumping margin. A financial expense ratio figured from these statements became a key component for calculating the cost of production and the value of the silicon metal sold by CBCC in the United States during the review period. See Silicon Metal from Brazil, Amended Final Results of Anti-dumping Administrative Review, 62 Fed. Reg. 54,087 (Oct. 17, 1997); Silicon Metal from Brazil; Final Results of Antidump-ing Administrative Review and Determination Not to Revoke in Part, 62 Fed. Reg. 1970 (Jan. 14, 1997). Using the financial expense ratio calculated with the Belgian figures, Commerce issued a dumping margin for CBCC.

American Silicon Technologies, SKW Metal & Alloys, Inc., Elkem Metal Co., and Globe Metallurgical, Inc. (collectively, American Silicon), petitioners in Commerce’s administrative review, disagreed with Commerce’s calculation of CBCC’s financial expense ratio. Instead, American Silicon reasoned, Commerce should employ the combined financial expenses of CBCC and its immediate parent, Brasil. American Silicon based this reasoning on record evidence of inter-company financial transactions between CBCC and Brasil, such as loans and stock transfers. Moreover, American Silicon argued that Brazilian companies ordinarily borrow within domestic credit markets or from Brazilian banks, as opposed to seeking credit from external markets. By calculating CBCC’s financial expense ratio using Solvay’s consolidated financial statements, American Silicon contended that Commerce inappropriately shifted costs of production away from the subject merchandise.

Commerce’s standard policy for assessing finance costs bases interest expenses and income on fully consolidated financial statements because the cost of capital is fungible. According to Commerce, consolidated financial statements indicate that a corporate parent controls a subsidiary. Indeed, market analysts use consolidated statements to fairly represent the financial health of parent companies with substantial subsidiary operations. Therefore, under standard Commerce policy as well as standard accounting principles, “majority ownership is prima facie evidence of control over the subsidiary.” Am. Silicon Techs. v. United States, Consol. Court, No. 97-02-00267, slip op. 99-34, 1999 WL 354415 (Ct. Int’l Trade Apr. 9, 1999). Moreover, the Court of International Trade has sustained Commerce’s normal practice in calculating financial expense ratios as a permissible interpretation of applicable statutes (19 U.S.C. §§ 1677b (b)(3)(B) (2000), 1677b(e)(2)(A) (2000), and 1677b(f)(1)(A) (2000)), the Statement of Administrative Action, and its case law. See, e.g., Gulf States Tube Div. of Quanex Corp. v. United States, 981 F.Supp. 630, 647-49 (Ct. Int’l Trade 1997).

Therefore, Commerce initially determined Solvay had the power to direct the capital structure of CBCC with its controlling interest. Because Solvay is the ultimate parent of the Solvay corporate group and controls CBCC’s financial expenses, Commerce and CBCC relied on Solvay’s consolidated financial statements to calculate CBCC’s financial expenses.

American Silicon appealed to the Court of International Trade. The Court of International Trade determined that Commerce erred in employing the consolidated financial statements of Solvay when calculating CBCC’s financial expense ratio. Am. Silicon, 1999 WL 354415, at *8. In support of that finding, the Court of International Trade noted that Brasil engaged in financing with CBCC, while no direct financial exchanges occurred between CBCC and Solvay during the relevant period. Id. The Court of International Trade did not assess whether Belgian Solvay controlled and accounted for Brasil’s financial transactions with CBCC in the relationships of its subsidiaries. Nonetheless, the Court of International Trade deviated from the normal rule and determined that, in this case at least, the ultimate parent’s financial statements did not reasonably reflect “the actual cost incurred by CBCC to produce and sell silicon metal.” Id. at *7; see also 19 U.S.C. § 1677b(f)(1)(A).

The trial court remanded to Commerce with instructions to recalculate CBCC’s financial expense ratio utilizing the consolidated financial statements of CBCC and its immediate parent company, Brasil, excluding any financial information from Belgian Solvay, the ultimate parent of both Brasil and CBCC. Following the remand, Commerce reluctantly recalculated CBCC’s financial expense ratio, asserting in its final remand results the continued belief that the initial calculation was appropriate. The Court of International Trade disagreed and sustained the remand results. Am. Silicon Techs. v. United States, Consol. Court No. 97-02-00267, slip op. 01-109, 2001 WL 1223714 (Ct. Int’l Trade Aug. 27, 2001). CBCC appeals, asserting error by the Court of International Trade in denying Commerce sufficient deference in its initial calculation of CBCC’s financial expense ratio based on the consolidated financial statements of its ultimate parent, Belgian Solvay.

II.

The Court of International Trade reviews final decisions of Commerce for “substantial evidence on the record” and consistency “with law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (2000). This court has jurisdiction under 28 U.S.C. § 1295(a)(5) to review final decisions of the Court of International Trade.

This court reviews anew decisions of the Court of International Trade applying the same statutory standard as the trial court. Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed.Cir.2001); F.LLI De Cecco Di Flippo Fara S. Martino S.p.A v. United States, 216 F.3d 1027, 1031 (Fed.Cir.2000). Thus, without affording any deference to the Court of International Trade, this court reassesses the administrative record for “substantial evidence” and for consistency “with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1559 (Fed.Cir.1984); see also Zenith Elecs. Corp. v. United States, 99 F.3d 1576 (Fed.Cir.1996); Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 982-83 n. 1 (Fed.Cir.1994); Am. Permac, Inc. v. United States, 831 F.2d 269, 274-76 (Fed.Cir.1987); Matsushita Elec. Indus. Co. v. United States, 750 F.2d, 927, 933-36 (Fed.Cir.1984). Thus, this court must review the entire record for substantial evidence and compliance with law. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951); see also Mitsubishi Heavy Indus., Ltd., 275 F.3d at 1060. Commerce’s determination may be supported by substantial evidence of record “[ejven if it is possible to draw two inconsistent conclusions from evidence in the record.” Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed.Cir.2001) (citing Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1044 (Fed.Cir.1996)). In view of the record as a whole, the reviewing court must consider supporting evidence as well as that which “fairly detracts from its weight.” Universal Camera, 340 U.S. at 478, 481, 488, 71 S.Ct. 456. A review of the entire administrative record puts before this court both the trial court’s remand order instructing Commerce to calculate CBCC’s interest expenses without reference to its ultimate parent and the trial court’s acceptance of that specifically limited dumping calculation.

To calculate cost of production, title 19 requires Commerce to include “an amount for selling, general, and administrative expenses based on actual data pertaining to production and sales of the foreign like product.” 19 U.S.C. § 1677b(b)(3)(B). Similarly, a calculation of constructed value requires Commerce to add “the actual amounts incurred and realized by the specific exporter ... for selling, general, and administrative expenses in connection with the production and sale of the foreign like product.” 19 U.S.C. § 1677b(e)(2)(A). Title 19 also counsels Commerce to calculate costs “normally ... based on the records of the exporter” where those records “reasonably reflect the costs associated with the production and sale of the merchandise.” 19 U.S.C. § 1677b(f)(1)(A). The same section requires Commerce, however, to “consider all available evidence on the proper allocation of costs.” Id. Title 19 provides no further guidance on calculation of financial expenses. In particular, title 19 does not suggest any calculation method for an exporter that is wholly owned or controlled by a parent company. Because the statute provides no specific guidance, Commerce enjoys broad discretion to devise a method for calculating “general expenses.” Micron Tech. Inc. v. United States, 243 F.3d 1301, 1308 (Fed.Cir.2001).

This court must therefore determine whether Commerce reasonably calculated “general expenses” by using Solvay’s consolidated financial documents. In the first place, this court notes that standard accounting principles acknowledge consolidated financial statements as a fair presentation of the financial position of a group. See, Floyd A. Beams, Advanced Accounting 74, 77, 91, 102-03 (5th ed. 1992). Following those practices, Commerce has adopted and followed a standard policy for assessing finance costs of a producer based on the consolidated financial statements of a parent because the cost of capital is fungible. Commerce’s policy recognizes that consolidated financial statements indicate that a corporate parent controls a subsidiary. These consolidated statements represent the financial health of parent company operations in view of subsidiary operations. In addition, fungible financial assets invite manipulation. In other words, if Commerce used only a single division of a group as the source of financing costs, the controlling entity could shift borrowings from one division to another to defeat accurate accounting.

Therefore, under standard Commerce policy, as well as standard accounting principles, “majority ownership is prima facie evidence of control over the subsidiary.” Am. Silicon, 1999 WL 354415, at *7. Moreover, the Court of International Trade has sustained Commerce’s normal practice of calculating financial expense ratios based on the consolidated financial statements of a parent as a permissible interpretation of applicable statutes (19 U.S.C. §§ 1677b(b)(3)(B), 1677b(e)(2)(A), and 1677b(f)(1)(A)), the Statement of Administrative Action, and its case law. See, e.g., Gulf States Tube, 981 F.Supp. at 647-49.

As a legal matter, the Court of International Trade had an obligation to defer to Commerce’s reasonable methodology in the first place, but no such deference was afforded. Thus, according proper deference, Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570, 1575 (Fed.Cir.1994), this court sustains as reasonable Commerce’s well established practice of basing interest expenses and income on fully consolidated financial statements.

In its initial review, Commerce considered the facts of record and, after analyzing indicia of parental control over subsidiary CBCC, determined the consolidated financial statements of Solvay were appropriate for calculating CBCC’s financial expense ratio. In reaching this initial decision, Commerce relied heavily upon the capability of the ultimate parent company, Solvay, to determine the capital structure of its subsidiary, CBCC. Commerce found that the majority equity ownership of CBCC by Solvay is prima facie evidence of control over CBCC. Commerce, however, ended its inquiry here without examining the entire record to determine whether this presumption has been overcome or whether Solvay’s financial statements accurately reflect the actual costs associated with the production of the subject merchandise. The Court of International Trade misapplied the substantial evidence standard when it required Commerce to recalculate the financial costs based on CBCC’s transactions solely with Brasil. The trial court concluded that Brasil “would be much more likely to have and exercise direct control over the subsidiary.” Am. Silicon, 1999 WL 354415, at *8. The trial court based this conclusion on its reading of the record that Brasil and CBCC interact more financially than Sol-vay and CBCC or Solvay and Brasil.

In the first place, the trial court’s analysis deviates from Commerce’s well-established practice of acknowledging the role of consolidated statements. Instead, the trial court imposed a requirement of adequate inter-company financial transactions. Specifically, the Court of International Trade noted that Brasil engaged in financing with CBCC with fewer, if any, direct financial exchanges between CBCC and Solvay during the relevant period. The Court of International Trade, however, did not account for whether Belgian Solvay controlled and accounted for Brasil’s financial transactions with CBCC in the relationships of its subsidiaries. If finance expenses in a dumping margin calculation depended on assessing inter-company financial transactions, as the trial court seemed to require, the new kind of test would impose significant new administrative burdens on Commerce and invite potential manipulation. The manipulation of this test might take the form of a controlling company selecting a financial cost ratio by directing one of its subsidiaries with a low ratio to lend to the exporter.

Further, notwithstanding that the trial court remanded to Commerce, that remand foreclosed Commerce from undertaking a complete analysis. Instead, on remand, the trial court limited Commerce’s examination to CBCC’s transactions with Brasil. This order prevented Commerce from further assessing the relationship between Brasil and Solvay or CBCC and Solvay. This limit on the remand methodology further inhibited Commerce’s ability to ensure an accurate assessment of CBCC’s financial costs. As Commerce notes on appeal, during the remand proceedings, Commerce gathered more information about the relationship between CBCC and Brasil, but not with regard to the relationship between CBCC or Brasil and Solvay. Thus, the record in the remand is deficient because Commerce could not compare the consolidated statements of Solvay with the consolidated statements of Brasil. By sharply limiting Commerce’s inquiry, the trial court’s remand actually prevented Commerce from undertaking a fully balanced examination that might have produced more accurate results.

Therefore, this court reverses and remands with instructions to require Commerce to carry out its statutory duty of accurately assessing “general costs” consistent with this opinion.

COSTS

Each party shall bear its own costs.

REVERSED and REMANDED.