Elkem Metals Co. v. United States

Slip Op. 08-92
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
ELKEM METALS CO., APPLIED :
INDUSTRIAL MATERIALS CORP., :
AND CC METALS & ALLOYS, INC., :
:
Plaintiffs, :
: Before: Richard K. Eaton, Judge
v. :
: Consol. Court No. 99-00628
UNITED STATES, :
Defendant. :
______________________________:

OPINION

[United States International Trade Commission’s Fourth Remand
Results sustained.]

Dated: September 5, 2008

DLA Piper US, LLP (William D. Kramer and Clifford E. Stevens,
Jr.), for plaintiff Elkem Metals Co.

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

James M. Lyons, General Counsel, Andrea C. Casson, Assistant
General Counsel, United States International Trade Commission
(Marc A. Bernstein), for defendant.

Greenberg Traurig, LLP (Philippe M. Bruno), for defendant-
intervenors Associacao Brasileira dos Produtores 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.

Eaton, Judge: This matter is before the court following

remand to the United States International Trade Commission (the

“ITC” or the “Commission”) of its negative injury determination
Consol. Court. No. 99-00628 Page 2

contained in Ferrosilicon From Brazil, China, Kazakhstan, Russia,

Ukraine, and Venezuela, Invs. Nos. 303-TA-23, 731-TA-566-570, and

731-TA-641 (Final) (Reconsideration) (Fourth Remand) USITC Pub.

3890 (Oct. 2006) (“Fourth Remand Determination”). In the Fourth

Remand Determination, the ITC has again found that the United

States ferrosilicon industry was neither injured nor threatened

with material injury by reason of imports of subject merchandise

from foreign companies.1

Plaintiffs Elkem Metals Company (“Elkem”) and CC Metals and

Alloys, Inc. (“CCMA”) challenge this determination. See Comments

of Elkem on the ITC’s Fourth Remand Determination (“Elkem’s

Comments”); Comments of CCMA on the Fourth Remand Determinations

of the ITC (“CCMA’s Comments”). Briefs have also been submitted

in support of the ITC’s findings by the United States on behalf

of defendant the ITC and by defendant-intervenors Associacao

Brasileira dos Produtores 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 (“ABRAFE” or “defendant-

intervenors”). See Def.’s Reply to Pl.’s Comments (“Def.’s

1
Commissioner Charlotte R. Lane dissented, finding that
an industry in the United States was materially injured by reason
of imports of subject merchandise. See Fourth Remand
Determination (Dissenting Views of Commissioner Lane) at 13.
Consol. Court. No. 99-00628 Page 3

Reply”); Def.-Ints.’s Resp. to Comments (“Def.-Ints.’s Resp.”).

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

detailed below, the court sustains the ITC’s Fourth Remand

Determination.

BACKGROUND

Familiarity with the facts of this dispute is presumed. For

purposes of this opinion, however, the following history is

given. In Elkem Metals Co. v. United States, 30 CIT __, 441 F.

Supp. 2d 1292 (2006)(“Elkem VIII”), the court reviewed the ITC’s

third remand determination and considered whether an established

price-fixing conspiracy2 (the “Conspiracy”) was a significant

condition of competition that affected prices charged by United

States ferrosilicon producers during the period of investigation

January 1, 1989 through June 30, 1993 (the “POI”). As it had in

previous opinions, the court divided the POI into three parts:

(1) the period preceding the Conspiracy, i.e., the first three

quarters of 1989 (“Prior Period”); (2) the period of the

Conspiracy itself, i.e., the period from October 1, 1989 through

2
The conspirators were plaintiffs Elkem, American
Alloys, Inc., and SKW Metals & Alloys, Inc., the predecessor firm
to CCMA (collectively, “Conspirators” or “plaintiffs”). See
Elkem Metals Co. v. United States, 27 CIT 838, 840, 276 F. Supp.
2d 1296, 1300 (2003).
Consol. Court. No. 99-00628 Page 4

June 30, 1991 (“Conspiracy Period”); and (3) the period

subsequent to the end of the Conspiracy, i.e., the period from

July 1, 1991 to June 30, 1993 (“Subsequent Period”). See Elkem

VIII, 30 CIT at __, 441 F. Supp. 2d at 1293-94; see also Elkem

Metals Co. v. United States, 28 CIT 1087, 1088 n. 1, 342 F. Supp.

2d 1207, 1209 n.1 (2004)(“Elkem VI”).

In an earlier opinion, the court sustained the finding,

based on the use of adverse facts available (“AFA”), that the

Conspiracy was a significant condition of competition that

affected prices during the Conspiracy Period. Elkem Metals Co.

v. United States, 27 CIT 838, 276 F. Supp. 2d 1296 (2003)(“Elkem

V”). In addition, in Elkem VI, the court “sustain[ed] the ITC’s

finding that the price-fixing [C]onspiracy did not affect prices

during the Prior Period”3 and remanded, as unsupported by

substantial evidence, the Commission’s finding that the price-

3
In Elkem V, the court sustained the finding that the
price-fixing Conspiracy was a significant condition of
competition that affected prices during the Conspiracy Period.
Elkem V, 27 CIT at 856, 276 F. Supp. 2d at 1313. Following
remand, the court sustained the ITC’s finding that the price-
fixing Conspiracy was not a significant condition of competition
during the Prior Period. Elkem VI, 28 CIT at 1091, 342 F. Supp.
2d at 1212. Although it found that the Conspiracy was not a
significant condition of competition during the Prior Period, the
ITC concluded that “[t]he available pricing data for the Prior
Period do not detract from [the negative injury determination],
because they show predominant overselling.” Ferrosilicon From
Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, Invs.
Nos. 303-TA-23, 731-TA-566-570, and 731-TA-641 (Final)
(Reconsideration) (Second Remand), USITC Pub. 3627 at 9 (Sept.
2003) (footnote omitted).
Consol. Court. No. 99-00628 Page 5

fixing Conspiracy affected prices during the Subsequent Period.

See Elkem VI, 28 CIT at 1091, 342 F. Supp. 2d at 1212.

Thereafter, the ITC issued its third remand determination,

again making a negative injury determination. In its third

remand determination, the Commission redirected its efforts to

address Elkem’s assertion that, “absent evidence to the contrary,

the Commission should presume that ferrosilicon prices during the

Subsequent Period were established pursuant to marketplace forces

because ferrosilicon is a commodity product sold by numerous

suppliers pursuant to competitive bidding.” Ferrosilicon From

Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, Invs.

Nos. 303-TA-23, 731-TA-566-570, and 731-TA-641 (Final)

(Reconsideration) (Third Remand), USITC Pub. 3765 at 9 (Mar.

2005) (“Third Remand Determination”) (footnote omitted). In

response, the Commission stated:

[W]e have not attempted to make an affirmative showing
that the [C]onspiracy affected prices during the
Subsequent Period. To comply with the CIT’s decision,
our finding instead concentrates solely on what the
record does not show – namely, that prices during the
Subsequent Period were established in a different
manner, i.e., solely pursuant to marketplace forces,
than prices for the Conspiracy Period.

Third Remand Determination at 19 (emphasis in original). Rather,

in the Third Remand Determination, the ITC applied adverse

inferences to the Subsequent Period. Id. at 20.

In Elkem VIII, the court reviewed the Third Remand
Consol. Court. No. 99-00628 Page 6

Determination and found that “substantial evidence [did] not

support the ITC’s adverse inference that the price-fixing

[C]onspiracy affected prices outside the Conspiracy Period

[,i.e., during the Subsequent Period].” Elkem VIII, 30 CIT at

___, 441 F. Supp.2d at 1299 (citation omitted). The court

explained that the ITC did not have evidence as to the market

conditions in the Conspiracy Period (October 1, 1989 to June 30,

1991) or the Subsequent Period (July 1, 1991 to June 30, 1993).

In reaching its finding, the court explained that the ITC could

not merely compare prices between the Conspiracy Period and the

Subsequent Period and reach a valid conclusion as to how prices

were set:

[T]he ITC has failed to determine if
marketplace conditions did remain equal, or
changed in some material respect following
the Conspiracy Period. In other words,
without knowing either the extent of the
distortion during the Conspiracy Period or
what the market would have determined prices
to be during the Subsequent Period, no valid
comparison can be made.

Elkem VIII, 30 CIT at ___, 441 F. Supp.2d at 1300. Therefore,

the court was unable to “agree with the ITC’s conclusion that,

based on the lack of available information, the prices in the

Subsequent Period were not solely determined by marketplace

forces.” Elkem VIII, 30 CIT at __, 441 F. Supp. 2d at 1301.

The court also addressed the ITC’s finding that the

existence of the Conspiracy allowed the taking of an adverse
Consol. Court. No. 99-00628 Page 7

inference with respect to the Subsequent Period. Elkem VIII, 30

CIT at ___, 441 F. Supp. 2d at 1299. Specifically, the court

found that if an adverse inference were to be applied, it must be

supported by substantial evidence. Because there was no evidence

that the Conspiracy lasted beyond the Conspiracy Period, such

evidence was absent from the Subsequent Period. As a result, the

court remanded the ITC’s conclusion that domestic prices in the

Subsequent Period were not established solely by the marketplace.

Elkem VIII, 30 CIT at ___, 441 F. Supp. 2d at 1301. Put another

way, the court required that on remand the ITC support, with

substantial evidence, the conclusion that the Conspiracy affected

prices during the Subsequent Period, or conclude that domestic

prices were set pursuant to market forces.

The court thus remanded with instructions for the Commission

to support its findings with substantial evidence. In doing so,

the ITC was ordered to

either (1) reopen the record to obtain
relevant data of marketplace conditions to
support, with substantial evidence, its
conclusion that prices in the Subsequent
Period were not set by market forces, or (2)
find that the price-fixing Conspiracy was not
a significant factor in the Subsequent Period
and further find that the prices in the
Subsequent Period were set by market forces
and complete its analysis accordingly.

Elkem VIII, 30 CIT at ___, 441 F. Supp. 2d at 1301.

The ITC has now issued its Fourth Remand Determination,
Consol. Court. No. 99-00628 Page 8

again making a negative injury determination. In reaching its

determination, the ITC chose not to reopen the record of this

proceeding.4 Instead, in accordance with the court’s remand

instructions, the Commission found that the price-fixing

Conspiracy was not a significant condition of competition that

affected prices during the Subsequent Period, and that the prices

in the Subsequent Period were set by market forces. The ITC then

performed an analysis, making findings as to volume, price

effects, and industry impact. As to the steps it took to reach

its final determination, the court finds that the ITC followed

the remand instructions in Elkem VIII in its Fourth Remand

Determination.

As noted, the Commission’s revised analysis continues to

find no material injury to the domestic ferrosilicon industry

4
The ITC stated that it “declined to reopen the record
of this remand proceeding for many of the same reasons that we
declined to reopen the record of the third remand proceeding.”
Fourth Remand Determination at 4. First, it stated, in the
original investigation the Conspirators gave questionnaire
responses that were not truthful and on the first remand
submitted information that was not probative. Id. Second, the
ITC declined to reopen the record because “even if CCMA and Elkem
were inclined to cooperate with additional information requests,
the requests would concern pricing decisions made from 1989 to
1991. The likelihood of now obtaining complete and accurate
information about transactions that took place 15 to 17 years ago
is dubious at best.” Id. at 5. Accordingly, the ITC continued to
rely on data collected during the original investigation. Id.
Nowhere in their papers do the plaintiffs object to the ITC’s
decision not to reopen the record.
Consol. Court. No. 99-00628 Page 9

from the subject imports.5 Fourth Remand Determination at 5.

STANDARD OF REVIEW

When reviewing the ITC’s final injury determination in an

antidumping 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).

DISCUSSION

I. Introduction

Prior litigation in this case centered on the appropriate

use of evidence in light of the price-fixing Conspiracy. The

Conspiracy, which was in place from October 1989 through June of

1991 among three major domestic ferrosilicon producers, was

designed to maintain floor prices of commodity ferrosilicon. See

Fourth Remand Determination at 2 n. 13; Elkem VI, 28 CIT at 1087,

342 F. Supp. 2d at 1209. As a result of the Conspiracy, some

5
In addition, the ITC reaffirmed its findings as to
definitions of like product and domestic industry, and findings
on cumulation, none of which were at issue in the litigation
before this court. Fourth Remand Determination at 5 n. 35.
Likewise, the ITC again adopted the threat analysis it had
previously used, namely, that threat of material injury is not at
issue here. Id. Because no objection has been raised to these
findings, they are not addressed here.
Consol. Court. No. 99-00628 Page 10

evidence presented to the ITC was tainted by obstruction and

misrepresentation. The misrepresentations were directly tied to

twenty-one months of the original four and a half year period of

investigation. Previously, the ITC tried various ways of taking

the Conspiracy into account.

Now, in its Fourth Remand Determination, the ITC has looked

at each year of the POI, both separately and as part of the POI

as a whole, in order to incorporate the Conspiracy Period in its

review. Thus, for the Conspiracy Period only, where the court

has previously found that the tainted evidence allowed adverse

inferences to be applied, the ITC has applied them. In the other

two periods, where no proof existed of tainted evidence, the ITC

has provided an analysis using record evidence.

The primary dispute between the parties concerns the ITC’s

claim that in making its analysis it must take into consideration

all three periods. That is, the ITC insists that in making its

material injury determination under 19 U.S.C. § 1673d(b)(1)(A)(i)

it must look at the entire POI, including the Conspiracy Period,

and use the evidence or lack of evidence accordingly. Thus, if,

using AFA, the evidence during the Conspiracy Period indicates

that no domestic injury was caused by the importation of subject

merchandise, the ITC claims that such evidence should be taken

into account.

Plaintiffs insist that the data from the Prior and
Consol. Court. No. 99-00628 Page 11

Subsequent Periods must be examined without regard to the impact

of the Conspiracy on it. Plaintiffs take this position even

though the Conspiracy Period was a substantial portion of the

POI. For instance, they would compare data from 1989 to 1993

without accounting for the impact of the intervening Conspiracy

on that evidence. At its core, the analysis urged by plaintiffs

would have the court ignore any injury, or lack thereof,

experienced during the Conspiracy Period, and any effect the

Conspiracy had, or could have been found to have, on the volume,

price effects, and impact of the subject imports.

II. The ITC’s Finding of No Material Injury By Reason of Subject
Imports

A. The ITC’s Use of Data from the Conspiracy Period

As described above, the ITC sets out its material injury

determination based on the entire POI, including the Conspiracy

Period. The ITC contends that the Conspiracy Period,

encompassing twenty-one months of the POI (October 1989 through

June 1991), was “too long in duration to be ignored.” Fourth

Remand Determination at 6. The Commission also argues that

“eliminating the Conspiracy Period from our period of

investigation would have the undesired effect of rewarding

interested parties for their actions impeding the Commission’s

original investigations.” Fourth Remand Determination at 6 n.
Consol. Court. No. 99-00628 Page 12

37.

Plaintiffs claim that the ITC must limit its analysis solely

to the Subsequent Period or to the Prior and Subsequent Periods.

CCMA’s Comments 13; Elkem’s Comments 5,8. Elkem states: “The

[C]onspiracy cannot explain the injury to the domestic industry

during the last two years of the POI, when the [C]onspiracy did

not exist and the ITC has found that prices were set by market

forces.” Elkem’s Comments 8 (citation omitted). In sum,

plaintiffs argue that the ITC should not consider information

regarding the Conspiracy Period in its analysis, but rather,

should review data from the Prior and Subsequent Periods, or from

the Subsequent Period alone. See Def.’s Reply 10 (citing CCMA’s

Comments 13, Elkem’s Comments 5, 8).

The court cannot credit plaintiffs’ arguments. In Elkem

VIII, no limitation was placed on the POI, i.e., restricting it

to the Prior and Subsequent Period or solely Subsequent Period.

Elkem VIII, 30 CIT at __, 441 F. Supp. 2d at 1299. The ITC

applied adverse inferences to the Conspiracy Period, but only to

the Conspiracy Period, where evidence of the Conspiracy supported

such use.6 See Elkem V, 27 CIT at 853, 276 F. Supp. 2d at 1310

6
Plaintiff CCMA’s argument that the findings concerning
the Conspiracy Period are unsupported by substantial evidence is
unavailing as it merely attempts to cover again well-worn
territory. This court has explicitly found that the ITC is
entitled to use adverse inferences solely for the Conspiracy
Period. See Elkem V, 27 CIT at 853, 276 F. Supp. 2d at 1313.
Consol. Court. No. 99-00628 Page 13

(“The court finds the ITC’s use of adverse inferences, for the

Conspiracy Period, to be in accordance with law.”). Plaintiffs

have simply made no valid argument for not taking into account

the twenty-one months of the Conspiracy Period out of a four and

a half year investigation. See Fourth Remand Determination at 6.

The court thus sustains the ITC’s treatment of the data from the

Conspiracy Period.

B. The ITC’s Analysis

In a material injury inquiry, the Commission must evaluate

the significance of the volume, price effects, and impact of the

subject imports. 19 U.S.C. § 1677(7)(C). When the Commission

makes an affirmative material injury determination, it must also

find that the material injury to the domestic industry is “by

reason of” the subject imports. Gerald Metals, Inc. v. United

States, 132 F.3d 716, 719-720 (Fed. Cir. 1997) (“Gerald Metals”).

Here, the ITC analyzed the volume, price effects, and impact

of the subject imports, finding none of them to be significant.

Moreover, the ITC found that, while conditions in the domestic

industry declined during the POI, there is present on the record

no substantial evidence that these declines were caused by the

subject imports.
Consol. Court. No. 99-00628 Page 14

1. Volume of Subject Imports

When evaluating the volume of imports of subject merchandise

for purposes of making a material injury determination, the ITC

considers “whether the volume of imports of the merchandise, or

any increase in that volume, either in absolute terms or relative

to production or consumption in the United States, is

significant.” 19 U.S.C. § 1677(7)(C)(i); Am. Bearing Mfrs.

Ass’n. v. United States, 28 CIT 1698, 1700, 350 F. Supp. 2d 1100,

1104 (2004). “[I]t is the significance of a quantity of imports,

and not absolute volume alone, that must guide ITC’s analysis

under section 1677(7).” USX Corp. v. United States, 11 CIT 82,

85, 655 F. Supp. 487, 490 (1987) (citation omitted).

In its volume determination, the ITC reviewed the POI as a

whole as well as separately by year, and found that the record

established increases in subject import volume and market

penetration during 1990 and 1992 but not 1991.7 Fourth Remand

Determination at 7. Of the full years’ data examined by the ITC,

7
The ITC states that it did not “place principal
reliance on [1993] data in analyzing the significance of subject
import volume” for three reasons. Fourth Remand Determination at
7. First, because of its past “reluctance to rely on data that
do not cover a full calendar year.” Id. at 7 n. 47 (citation
omitted). Second, because “the interim 1993 data . . . do not
encompass a period for which we have comparable pricing data, as
explained below.” Id. Finally, “import volumes from some
subject sources during interim 1993 may have been negatively
affected by the pendency of the first set of investigations,
which were initiated in May 1992.” Id.
Consol. Court. No. 99-00628 Page 15

one year, 1990, falls within the Conspiracy Period. As a result,

the ITC found the 1990 increase in subject imports not

significant because, according to the Commission, the increase

resulted from the domestic producers’ price-fixing during the

Conspiracy Period. Fourth Remand Determination at 7.

Specifically, the ITC found that the Conspiracy affected domestic

ferrosilicon prices during the Conspiracy Period, from October 1,

1989 through June 30, 1991: “[B]ecause of the effects of the

[C]onspiracy, domestic producers were charging higher prices than

market conditions warranted, providing opportunities for the

subject imports to increase their sales in the U.S. market. This

conclusion is still valid with respect to the Conspiracy Period,

and explains why the 1990 increase in subject imports was not

significant.” Fourth Remand Determination at 7 (footnote

omitted). Because “the subject imports and the domestic like

product were good substitutes, the increases in volume and market

penetration of subject imports that occurred during the

Conspiracy Period were the result of domestic production not

being priced at marketplace levels.” Id. Thus, the ITC found,

the 1990 increase in volume resulted from the actions of the

domestic producers themselves and could not be considered

significant, when viewing it in the context of the condition of

the industry.

As previously stated, the ITC did not find an increase in
Consol. Court. No. 99-00628 Page 16

subject import volume during the year 1991. The ITC did,

however, find that there was an increase in 1992, but concluded

that this increase was not significant. The ITC explains, “We

emphasize that, in the circumstances of this proceeding, we do

not find a simple year-by-year comparison of subject import

volumes to be analytically useful.” Fourth Remand Determination

at 7.

Because 1992 is the first year during the
period of investigation in which the domestic
industry established prices based on
marketplace competition throughout the entire
calendar year, 1992 is not comparable to any
preceding year in the period of
investigation.

Id. at 7. Put another way, it is the ITC’s position that it

could not compare market-driven import volume in 1992 to prior

years (i.e., the Conspiracy Period) when higher domestic pricing,

not set by the market, allowed for greater market penetration of

subject imports.

Plaintiffs object to the Commission’s volume finding,

stating that it ignores the contrary record evidence

demonstrating a significant increase in volume:

(1) the cumulated subject imports increased
in volume from 68,481 short tons (“ST”) in
1989 to at least 115,190 ST in 1992, an
increase in volume of 68 percent when demand
(the size of the total U.S. market) had
decreased by 10.9 percent: [sic]

(2) the volume of subject imports in 1992
alone (after the [C]onspiracy ended) was 52.1
Consol. Court. No. 99-00628 Page 17

percent higher than in 1991 [during the
Conspiracy Period] . . . .

Elkem’s Comments 4 (citations and footnote omitted); see also

CCMA’s Comments 14.

The ITC responds that plaintiffs’ analysis cites data from

1989 and 1992 without appropriate treatment of the twenty-one

months of the Conspiracy Period. In other words, according to

the Commission, plaintiffs would have the court (1) direct a

comparison of the 1989 data with the 1992 data without taking

into account the intervening years and (2) direct a comparison of

the 1992 data to the 1991 data even though no valid conclusion

can be drawn from the 1991 data because of the Conspiracy.8

The court finds that the ITC has supported its findings with

substantial evidence, i.e., “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). When making a

determination with respect to the significance of any increase in

volume of imported merchandise, the ITC must consider the

probative value of the evidence before it. “It is within the

Commission’s discretion to make reasonable interpretations of the

8
As noted previously, Elkem argues that the ITC should
base its determination solely on the Subsequent Period, while
CCMA argues for an analysis based on the Prior and Subsequent
periods. Elkem’s Comments 5, 8; CCMA’s 13.
Consol. Court. No. 99-00628 Page 18

evidence and to determine the overall significance of any

particular factor or piece of evidence.” See Am. Bearing Mfrs.

Inc. Ass’n v. United States, 28 CIT at 1707, 350 F. Supp. 2d at

1110 (quoting Me. Potato Council v. United States, 9 CIT 293,

300, 613 F. Supp. 1237, 1244 (1985); United States Steel Group v.

United States, 96 F. 3d 1352, 1357 (Fed. Cir. 1996) (the

“decision about what weight to give a particular piece of

evidence is ‘at the core of the evaluative process’”)). This

discretion is not, of course, unlimited “but must be exercised in

a manner consistent with underlying objective of [the statute]-to

obtain the most accurate dumping margins possible.” Zhejiang

Native Produce and Animal By-Products Imp. & Exp. Group v. United

States, 32 CIT __, __, Slip Op. 08-88 at 17 (June 16, 2008) (not

reported in Federal Supplement) (citation omitted).

Here, the ITC looked to the record and found little evidence

indicating a significant volume increase. This was because: the

1990 data were tainted by the Conspiracy; it could find no volume

increase in 1991; and, 1992 was the first full year when prices

were set by the market. With respect to 1992, the ITC found that

its 1992 data could not be compared to prior years in the POI

because there was no reliable prior year to compare it to. In

addition, the ITC found that there was no usable data for the

intervening twenty-one months of the Conspiracy Period,

precluding the ability to ascertain the basis for a volume
Consol. Court. No. 99-00628 Page 19

increase from 1989 to 1992. Thus, the Commission has given a

reasonable explanation for not finding a significant volume

increase during the POI based on an assessment of data for the

years 1990, 1991 and 1992.

In addition, despite plaintiffs’ arguments, the court finds

that the ITC appropriately took the unusual circumstances of the

POI into account when declining to compare 1992 data with the

years prior to the Conspiracy Period. The case of Angus Chemical

Co. v. United States, 20 CIT 1255, 1259, 944 F. Supp. 943, 948

(1996) (“Angus”), is instructive. In that case, the Court upheld

the ITC’s finding that a mechanical comparison of 1990 and 1993

data would “distort” its analysis because of the multiple

“intervening factors” that occurred in the domestic industry

during that period. Specifically, in mid-1992 one of only two

domestic producers in the industry significantly changed the

market dynamics by leaving the industry. Purchasers of the

subject merchandise were thus obliged to turn to foreign imports

as an alternative, supplemental source. Moreover, during the

period there was an explosion at the remaining domestic

producer’s facility disrupting industry production.

Therefore, the Angus Court found, a simple comparison of the

data between 1990 and 1993 would be “aberrational.” Angus, 20

CIT at 1259, 944 F. Supp. at 948. In reaching its holding, the

reviewing Court upheld the Commission’s decision to take these
Consol. Court. No. 99-00628 Page 20

“unusual circumstances into account when formulating its

determination, and its decision to focus on 1993 data and make

only limited comparisons between 1990 and 1993 data fell well

within its discretion.” Id. (citing Kenda Rubber Indus. Co. v.

United States, 10 CIT 120, 127, 630 F. Supp. 354, 359 (1986)

(finding Commission has “discretion to examine a period that most

reasonably allows it to determine” injury)).

Similarly, here, the Conspiracy was an intervening factor

that precluded comparison between the 1992 data and the data from

the immediately preceding years. Because 1992 was the first year

following the Conspiracy in which the market drove pricing, and

thus the first year that subject import volume could be assessed

without regard to artificially high prices, the ITC could not

compare 1992 to the years that preceded it. Any comparison of

the data would be “aberrational.” Accordingly, it was reasonable

for the ITC to avoid a mechanical comparison between the data

from 1992 and prior years. The court therefore upholds the ITC’s

finding that any increase in volume during the POI was not

significant.

2. Price Effects of Subject Imports

In evaluating the effect of subject imports on price in

making a material injury determination, the ITC considers whether

(I) there has been significant price
Consol. Court. No. 99-00628 Page 21

underselling by the imported merchandise as
compared with the price of domestic like
products of the United States, and

(II) the effect of imports of such
merchandise otherwise depresses prices to a
significant degree or prevents price
increases, which otherwise would have
occurred, to a significant degree.

19 U.S.C. § 1677(7)(C)(ii).

With respect to the price effects of subject imports, the

ITC states that it was prevented from examining usable

underselling data from the Conspiracy Period because the data

were not probative, a finding sustained in Elkem V.9 Elkem V, 27

CIT at 853-54, 276 F. Supp. 2d at 1310-11. The Commission

9
The court finds the ITC’s use of adverse
inferences, for the Conspiracy Period, to be
in accordance with law. . . . [T]he ITC
properly determined that Conspirators’
failure to reveal the price-fixing
[C]onspiracy significantly impeded the
investigation. This failure serves as a
basis for the use of BIA, and as a valid
justification for the taking of adverse
inferences. In addition, the adverse
inference taken here, i.e., that the
underselling and negative price effects
experienced by the domestic industry were a
product of the domestic producers’ own
actions, conforms with the rationale behind
the adverse inference rule—— when a party has
relevant evidence within his control which he
fails to produce, that failure gives rise to
an inference that the evidence is unfavorable
to that party.

Elkem V, 27 CIT at 853-54, 276 F. Supp. 2d at 1310-11 (citations
and quotation omitted).
Consol. Court. No. 99-00628 Page 22

explains:

the domestic producers’ own efforts to
establish a floor price and thereby raise
domestic prices above market levels undermine
the significance of the observed
underselling. Similarly, the domestic
producers’ [C]onspiracy to maintain floor
prices undermines the Commission’s findings
[in the 1999 final results] regarding the
significance of sales and revenues lost by
the domestic industry to lower-priced subject
imports.

Fourth Remand Determination at 8 (citation and quotation

omitted). In other words, for the Commission, any underselling

seen during the Conspiracy Period can be attributed to the

artificially high prices set by the domestic producers. As a

result, the ITC does not include the underselling data from the

Conspiracy Period in its analysis.10

The ITC does, however, review underselling data from the

10
CCMA argues that the ITC should not disregard the
underselling data from the Conspiracy Period because the court
did not require the agency to modify the underselling analysis
the ITC used in its original investigation. CCMA states that the
court’s “affirmance of the unquantified Conspiracy Period price
distortion finding neither required, nor even suggested, that the
ITC disregard all evidence of underselling during that period.”
CCMA’s Comments 9. Despite CCMA’s contention, however, the court
ruled in Elkem Metals Co. v. United States, 26 CIT 234, 240, 193
F. Supp. 2d 1314, 1321 (2002), that the ITC had authority to
reconsider its final affirmative material injury determination,
including the data upon which it was based. The underselling
data from the Conspiracy Period was a basis for the ITC’s
original affirmative injury finding. Accordingly, in reexamining
its final determination, the ITC had the authority to reconsider
the underselling data from the Conspiracy Period and eliminate
that data from its analysis in the Fourth Remand.
Consol. Court. No. 99-00628 Page 23

Prior and Subsequent Periods. With respect to that data, the

Commission finds “[u]sable underselling observations from the

Prior Period and the Subsequent Period account for only about

one-third of all price comparisons during the entire period for

which we have consistently-generated pricing data.” Fourth

Remand Determination at 8 (footnote omitted). Put another way,

the remainder of the underselling data was from the Conspiracy

Period.

The ITC states:

The pricing data to which we refer in this
opinion were collected on a quarterly basis
from January 1989 through September 1992.
While some pricing data were collected for
the fourth quarter of 1992 and the first two
quarters of 1993 in the original
investigations, it is not entirely comparable
to the earlier data due to differing
specifications and response coverage. We
consequently have not relied on this latter
data in our prior remand determinations, and
do not do so here.

Fourth Remand Determination at 8 n. 52 (citation omitted).

Based primarily on the unreliability of the pricing data on

the record for much of the POI, the ITC concludes, “We cannot

find this incidence of underselling, which is not pervasive

underselling, over the entire period of investigation to be

significant.” Fourth Remand Determination at 8. That is, the

ITC found that the record did not contain substantial evidence of

“significant price underselling.” The Commission explains:
Consol. Court. No. 99-00628 Page 24

With respect to those countries cumulated for
purposes of the determinations with respect
to subject imports from Russia and Venezuela,
there were 64 quarterly pricing comparisons
during the period through the third quarter
of 1992 [January 1989 through September 1992]
for which we have comparable pricing data,
and at most 21 usable underselling
observations. With respect to those
countries cumulated for purposes of the
determinations with respect to subject
imports from China, Kazakhstan, and Ukraine,
there were 75 quarterly pricing comparisons
during the period for which we have
comparable pricing data [January 1989 through
September 1992], and at most 25 usable
underselling observations. With respect to
the determination on subject imports from
Brazil, there were 15 quarterly pricing
comparisons during the period for which we
have comparable pricing data [January 1989
through September 1992], and at most five
usable underselling observations.

Fourth Remand Determination at 8 n. 54 (citations omitted). Thus,

according to the ITC, most of the data collected in this time

frame comes from the Conspiracy Period and is unusable, and the

usable data does not provide sufficient evidence of pervasive

underselling.

With respect to the remaining two periods, the ITC found, in

its second remand determination, that there was predominant

overselling of subject imports during the Prior Period, i.e., the

first three quarters of 1989. Ferrosilicon From Brazil, China,

Kazakhstan, Russia, Ukraine, and Venezuela, Invs. Nos. 303-TA-23,

731-TA-566-570, and 731-TA-641 (Final) (Reconsideration) (Second

Remand), USITC Pub. 3627 at 9 (Sept. 2003) (“Second Remand
Consol. Court. No. 99-00628 Page 25

Determination”).

The ITC did review data for the Subsequent Period, finding

no

significant correlation between the observed
underselling and the domestic shipment trends
for the products on which pricing data were
collected. This is pertinent to the question
of whether underselling during this period
caused purchasers to switch from the domestic
like product to the subject imports. There
were numerous instances in which domestic
shipment volumes of a product increased on a
quarterly basis notwithstanding the existence
of underselling.11 By contrast, during all

11
For example, subject imports from Argentina,
China and Venezuela of product 1 sold to
steel producers undersold the domestic like
product during the fourth quarter of 1991.
Imports from China and Venezuela accounted
for [a majority] of total sales of product 1
from subject sources to steel producers
during that quarter. Nevertheless, domestic
producers’ shipments of product 1 to steel
producers increased from the third to the
fourth quarters of 1991.

Similarly, the two subject sources that sold
product 2 to steel producers during the
fourth quarter of 1991, Kazakhstan and
Ukraine, both undersold the domestic like
product. Domestic producers’ shipment of
product 2 to steel producers also increased
from the third to the fourth quarters of
1991.

During the second quarter of 1992, subject
imports from Brazil, China, and Venezuela of
product 1 to steel producers each undersold
the domestic like product. Domestic
producers’ shipments of product 1 to steel
producers increased from the first to the
second quarters of 1992.
Consol. Court. No. 99-00628 Page 26

quarters in 1991 and 1992 for which there are
comparable pricing data, the largest declines
in total domestic shipments of pricing
products [sic] on a quarterly basis occurred
during the first half of 1991, which was
within the Conspiracy Period.

Fourth Remand Determination at 9 (footnotes omitted). In other

words, during the Subsequent Period the ITC found no evidence

that the observed underselling took away business from domestic

producers, i.e., caused injury to the domestic industry, although

there appears to have been injury to domestic producers during

the Conspiracy Period. As for the Conspiracy Period, the ITC

concludes that the declines in domestic shipments can be presumed

to have resulted from the artificially high prices set by the

domestic producers. The ITC therefore does not find the observed

underselling to be significant, because it caused no injury that

was not self-inflicted.

In addition, the Commission restated the finding from its

first remand opinion that the subject imports did not have

significant price-suppressing or price-depressing effects during

the POI.12 Fourth Remand Determination at 9. With respect to

Fourth Remand Determination at 9 n. 57 (citations omitted).
12
The Commission notes that it has no cause to revisit or
reconsider the finding that the subject imports did not have
significant price-suppressing or price-depressing effects during
the POI:

In the first remand opinion, the Commission
found that to the extent prices charged by
Consol. Court. No. 99-00628 Page 27

the Subsequent Period alone, the Commission, in fact, sees a

price increase over the course of 1992, despite underselling and

increasing subject import volumes:

We nevertheless observe that an analysis of
pertinent data for 1992 reinforces our
finding that the subject imports did not have
significant price-depressing or -suppressing
effects. Notwithstanding underselling and
increasing subject import volumes during
1992, the domestic industry was able to
increase prices during that year. For each
of the two pricing products for which there
was competition from subject imports, prices

the domestic industry were a function of
market forces, price changes during the
original period of investigation reflected
changes in demand and the nature of the
ferrosilicon process. The Commission
consequently concluded that the subject
imports did not have significant price-
suppressing or -depressing effects. The CIT
affirmed this finding in Elkem V. The
Commission’s finding proceeded from the
premise that prices were established pursuant
to marketplace conditions and consequently
was not based on an adverse inference. The
CIT’s action upholding the finding, which
included the finding for 1992, similarly was
not premised on the Commission’s ability to
take adverse inferences to the Conspiracy
Period. Consequently, as a legal matter,
Elkem VIII does not require that we
reconsider or modify this finding.

Fourth Remand Determination at 9 (citations omitted). The court
agrees that this finding does not have to be revisited or
modified, because it was based on the ITC’s review of the
evidence and not on an adverse inference. Had it been based on
an adverse inference with respect to the Subsequent Period, the
remand instruction in Elkem VIII would have required the
Commission to revisit its finding. Elkem VIII, 30 CIT at ___, 441
F. Supp. 2d at 1301.
Consol. Court. No. 99-00628 Page 28

were higher in the third quarter of 1992 than
in the first quarter of that year. The
increased prices were not a reflection of
increased costs; on a unit basis, the
domestic industry’s cost of goods sold
declined during 1992. Moreover, while
domestic producers’ prices for product 2 to
iron foundries declined during 1992, there
were no reported imports from subject sources
of this pricing product during that year.
The 1992 data therefore underscore that the
subject imports were not driving movements in
prices for the domestic like product.

Fourth Remand Determination at 10 (citations omitted). Thus,

with respect to the 1992 data, the ITC did not find evidence that

the subject imports had an adverse impact on prices of the

domestic like product. Accordingly, based on its examination of

pricing data for the Prior and Subsequent Periods, the ITC did

not find that the subject imports adversely impacted prices for

domestic like products during the POI.

Plaintiffs argue that record evidence supports an

affirmative determination because between 1989 and 1992 average

unit values declined, pulling prices downward. See Elkem

Comments 4 (stating that “the average unit value of the subject

imports fell by a massive 46.5 percent between 1989 and 1992,

pulling down the prices of . . . U.S.-produced

ferrosilicon”)(citation omitted); see also CCMA’s Comments 14.

The ITC contends, however, that in seizing upon this single

observation, plaintiffs fail to take into account the existence

of the Conspiracy Period (October 1989 through June 1991). See
Consol. Court. No. 99-00628 Page 29

Def.’s Reply 10-11. For the Commission, the presumed artificially

high prices during this period can reasonably be assumed to have

had some influence on the market. Thus, for the Commission, it

is not enough to show evidence of a price decline from before the

Conspiracy Period to after the Conspiracy Period, but rather,

there must also be evidence that the subject imports, and not

another cause such as the Conspiracy, caused any price decline.

The court agrees with the Commission that plaintiffs have

not demonstrated (1) that there was pervasive underselling during

the POI, (2) that observed underselling during the Subsequent

Period was significant, or (3) that subject imports had

significant price-suppressing or price-depressing effects during

the Subsequent Period or the entire POI. The court reaches this

conclusion notwithstanding plaintiffs’ view that examining the

record evidence without considering the impact of the Conspiracy

Period would result in a different finding. See Elkem’s Comments

5 (stating that “the most probative period for this analysis is

the two years after the end of the [C]onspiracy”).

There is substantial evidence to support the Commission’s

findings. Specifically, the underselling seen during the

Conspiracy Period is best attributed to the artificially high

prices set by the domestic producers. Moreover, the usable data

on incidences of observed underselling in the Prior and

Subsequent Periods account for only about one-third of all price
Consol. Court. No. 99-00628 Page 30

comparisons, and thus the Commission was reasonable in reaching

the conclusion that these comparisons did not show pervasive

underselling. This is particularly the case because of the

overselling demonstrated during the Prior Period. Thus, it was

reasonable to find that underselling was not pervasive over the

entire POI.

In addition, data show that underselling occurred during the

same time periods as domestic shipment volumes increased, meaning

that there is no evidence that observed underselling in the

Subsequent Period took business away from domestic producers.

Finally, the evidence reveals that there was a price increase

during the Subsequent Period despite underselling and increasing

subject import volume and that the increase was not caused by

increased costs. Thus, the ITC’s findings as to price effects

are supported by substantial evidence and are sustained. “As

long as the agency’s methodology and procedures are reasonable

means of effectuating the statutory purpose, and there is

substantial evidence in the record supporting the agency’s

conclusions, the court will not impose its own views as to the

sufficiency of the agency’s investigation or question the

agency’s methodology.” Ceramica Regiomontana, S.A. v. United

States, 10 CIT 399, 404-405, 636 F. Supp. 961, 966 (1986), aff’d,

810 F.2d 1137 (Fed. Cir. 1987) (“Ceramica Regiomontana”).
Consol. Court. No. 99-00628 Page 31

C. Impact of Subject Imports on the Domestic Industry

To examine the impact of subject imports on the domestic

industry, in making a material injury determination, the ITC

evaluates

all relevant economic factors which have a bearing on
the state of the industry in the United States,
including, but not limited to——

(I) actual and potential decline in output,
sales, market share, profits, productivity,
return on investments, and utilization of
capacity,

(II) factors affecting domestic prices,

(III) actual and potential negative effects
on cash flow, inventories, employment, wages,
growth, ability to raise capital, and
investment,

(IV) actual and potential negative effects on
the existing development and production
efforts of the domestic industry, including
efforts to develop a derivative or more
advanced version of the domestic like
product, and

(V) in a proceeding under part II of this
subtitle, the magnitude of the margin of
dumping.

The Commission shall evaluate all relevant economic
factors described in this clause within the context of
the business cycle and conditions of competition that
are distinctive to the affected industry.

19 U.S.C. § 1677(7)(C)(iii).

The ITC found that any overall declines in industry

performance during the POI “were largely a function of declines

that occurred during the Conspiracy Period” (October 1989 through
Consol. Court. No. 99-00628 Page 32

June 1991), and accordingly, cannot be attributed to the subject

imports. Fourth Remand Determination at 10. The Commission

reached this conclusion following its review of the record which

it claims shows declines in the domestic ferrosilicon industry’s

output, employment, and operating performance between 1989 and

1992. Id. (“The most severe declines in output and employment

occurred in 1990 and 1991, and the most severe declines in

operating performance occurred in 1990.”) (footnote omitted).

Thus, according to the ITC the most severe declines took place

while the Conspiracy was in existence.

In addition, the Commission again notes that it found no

significant volume or price effects during the POI, and further

notes that the decline in industry performance during the

Subsequent Period appears unconnected to the subject imports:

First, we have previously found that, in the
context of the entire period of
investigation, the subject imports had no
significant volume or price effects. In
light of this, any declines in domestic
performance observed during the Subsequent
Period cannot be attributed to the subject
imports.

Second, notwithstanding that we have found
that the effects of the [C]onspiracy on
prices were limited to the Conspiracy Period,
the [C]onspiracy still affected the probative
value of the data in the Commission record
for all annual periods up to, and including,
Consol. Court. No. 99-00628 Page 33

1991.13 Because the 1991 data are not a
probative baseline for competitive market
conditions, the record permits us to do no
more than observe that during 1992 [beginning
with the Subsequent Period] domestic industry
performance declined concurrently with
increases in subject import volume.
Particularly because there is no basis for a
finding that the increased volume of subject
imports during 1992 had adverse price
effects, we cannot identify any causal link
between the subject imports and the declines
in industry performance.

Fourth Remand Determination at 10 (footnote omitted). In

examining the subject import increase in 1992 [the Subsequent

Period] in isolation, without comparison to the data from the

Conspiracy Period, the ITC finds that the increase in volume was

“insufficient by itself to support a conclusion that the subject

imports had a significant adverse impact on the domestic

industry.” Fourth Remand Determination at 10-11. The ITC

explains:

We examined this increase, taking into
account that 1992 was characterized by
declines in domestic industry performance. A
variance analysis that Commission staff
performed for the original investigations,
however, supports the conclusion that
declines in the domestic industry’s sales

13
The ITC argues that, even though the Conspiracy Period
lasted for twenty-one months ending with the first six months of
1991, the data on impact of subject imports for 1991 is not
probative because such data is collected on an annual basis. “In
its antidumping and countervailing duty investigations, including
the instant proceedings, the Commission typically collects most
data relating to the impact of subject imports on an annual
basis.” Fourth Remand Determination at 10 n. 66.
Consol. Court. No. 99-00628 Page 34

volume did not contribute to its declines in
operating performance during 1992. Sales
revenues did decline in 1992 because of lower
sales quantities and a decrease in unit
values. The variance analysis, however,
indicates that this decline was more than
offset by volume-related reductions in cost
of goods sold and sales, general, and
administrative expenses. In other words,
assuming (as is done for a variance analysis)
that prices could be held constant, because
there was a greater decline in the costs
associated with the lower quantity of sales
than there was a decrease in sales revenue,
the change in sales quantities in 1992 had an
overall positive effect on the domestic
industry’s operating performance. The
variance analysis indicates that the decline
in operating performance during 1992 was
entirely related to changes in the industry’s
prices. As explained above, the price
declines cannot be a function of the subject
imports, which did not have significant price
effects.

Fourth Remand Determination at 11 (footnote omitted).

In their papers, plaintiffs point to contrary record

evidence in support of their argument that the subject imports

impacted the domestic industry:

the market share of the subject imports
increased from 18.2 percent in 1989 to 34.4
percent in 1992, while the domestic
industry’s market share declined from 66.8 to
48.0 percent; [and]

. . .the market share of the subject imports
in 1992 (after the [C]onspiracy had ended)
was 10.6 percentage points higher than in
1991, accounting for the vast majority of the
domestic industry’s 12.8 percentage points of
lost market share in 1992 . . . .

Elkem’s Comments 4 (citations omitted); see also CCMA’s Comments
Consol. Court. No. 99-00628 Page 35

14.

With respect to this comparison of 1989 to 1992, however,

plaintiffs again compare the effect of the subject imports before

and after the Conspiracy Period without taking into account the

Conspiracy Period itself. While plaintiffs have pointed to an

increase in market share for subject imports, they have failed to

address the impact of any artificially high prices for

domestically produced goods resulting from the Conspiracy.

Moreover, plaintiffs’ chosen evidence would have the court

compare market share in 1992 to market share in 1991 without

considering the Conspiracy’s effect on prices. The Conspiracy

was in effect from January through June of 1991, making the price

data from that time period unreliable as a basis for comparison

with 1992 prices.

The court finds the preceding analysis by the ITC convincing

and finds that the Commission relied on substantial evidence to

support its conclusions and sufficiently explained the reasoning

behind its conclusions. See Ceramica Regiomontana, 10 CIT at

405, 636 F. Supp. at 966. Particularly noteworthy is the finding

that “the overall declines in industry performance that occurred

during the original period of investigation were largely a

function of declines that occurred during the Conspiracy Period,”

and that these declines cannot be attributed to the subject

imports. Fourth Remand Determination at 10. Rather, the
Consol. Court. No. 99-00628 Page 36

artificially high prices set during the Conspiracy can be

presumed to have provided an opportunity for the subject imports

to increase sales in the United States market. Id.; see Elkem V,

27 CIT at 854, 276 F. Supp. 2d at 1310 (affirming the ITC’s use

of an adverse inference for the Conspiracy Period and stating

that “the underselling and negative price effects experienced by

the domestic industry were a product of the domestic producers’

own actions”).

Further, as mentioned, the ITC validly found that the

subject imports had no significant volume or price effects, and

therefore, any declines in domestic performance during the

Subsequent Period cannot be attributed to the subject imports.

Fourth Remand Determination at 10. Finally, the court affirms

the ITC’s finding that because data from the Conspiracy Period

“are not a probative baseline for competitive market conditions,”

the evidence merely shows that “during 1992 domestic industry

performance declined concurrently with increases in subject

import volume.” Id. at 18. Given that there is no basis to show

that this increased volume had adverse price effects, the ITC

supported its finding that “we cannot identify any causal link

between the subject imports and the declines in industry

performance.” Id.

Plaintiffs’ insistence on a contrary conclusion does not

invalidate the Commission’s decision. Nothing in plaintiffs’
Consol. Court. No. 99-00628 Page 37

analysis, based as it is on a selective use of the evidence,

convinces the court that the ITC has erred. See NEC Corp. v.

Dep’t of Commerce, 23 CIT 987, 991-92, 83 F. Supp. 2d 1339, 1344

(1999) (quoting Goss Graphics Sys., Inc. v. United States, 22 CIT

983, 1008, 33 F. Supp. 2d 1082, 1104 (1998) (“Although Plaintiffs

are correct that some of the record evidence could lead to

different conclusions, the ITC has the discretion to make

reasonable interpretations of the evidence and to determine the

overall significance of any particular factor in its

analysis.”)). Thus, the court sustains the ITC’s finding that

subject imports did not have a significant adverse impact on the

domestic ferrosilicon industry.

D. Causation

Finally, for material injury to be found, the antidumping

statute requires a showing that the injury be “by reason of” the

subject imports. Gerald Metals, 132 F.3d at 719-720 (vacating

and remanding an affirmative injury determination where decrease

in domestic prices was not caused by subject imports but by

market forces); 19 U.S.C. § 1677(7)(B)(ii) (“in making

determinations [of unfair trade], the Commission, in each case .

. . may consider such other economic factors as are relevant to

the determination regarding whether there is material injury by

reason of imports.”).
Consol. Court. No. 99-00628 Page 38

With respect to finding a cause for changes in the industry

during the POI, Elkem acknowledges that demand did decrease

during the POI, but complains that “[a] negative determination is

not in accordance with law if some other factor like demand

merely contributed to the harm, in addition to harm caused by the

subject imports.” Elkem’s Comments 8. Elkem’s argument is

misplaced. Here, it is not that a decrease in demand merely

contributes to the harm caused by the subject imports. Rather,

the ITC finds no evidence that the subject imports caused any

harm at all.

“[A] showing that economic harm to domestic injury occurred

when LTFV imports are also on the market is not enough to show

that the imports caused a material injury.” Gerald Metals, 132

F.3d at 719. The “anti-dumping statute mandates a showing of

causal—— not merely temporal—— connection between the LTFV goods

and the material injury.” Id. at 720.

The ITC states that it sought and found no causal connection

between increased subject imports and harm to the domestic

injury. Plaintiffs point to no flaw in the evidence relied upon

in the ITC’s decision making. Instead, they point to contrary

evidence that supports their position but fails to undermine the

ITC’s findings. For instance, Elkem claims that the subject

imports “inflicted far more than de minimis injury on the

domestic industry,” but, as has been seen, because its analysis
Consol. Court. No. 99-00628 Page 39

is based on only part of the record, it fails to support with

substantial evidence in the record its contention that subject

imports caused the claimed injury. Elkem’s Comments 11. In

addition, the ITC is not required, as Elkem asserts (Elkem’s

Comments 9), to supply a sufficient alternative cause of decline

in demand:

There is no statutory requirement that the
Commission similarly show a causal link
between nonsubject imports (i.e., imports
that have not been identified as being sold
at less than fair value) and material injury.
Rather, the ITC is permitted to conclude that
other factors, whether they themselves may be
said to “cause” injury, certainly undermine
the notion that dumped imports are a cause of
injury.

Altx, Inc. v. United States, 25 CIT 1100, 1105-06, 167 F. Supp.

2d 1353, 1362 (2001) (“Altx”).

Nonetheless, the ITC has found that “the overall declines in

industry performance that occurred during the original period of

investigation were largely a function of declines that occurred

during the Conspiracy Period.” Fourth Remand Determination at

10. Based upon the evidence previously discussed in this

opinion, the ITC can reasonably conclude that the Conspiracy

contributed to any injury. The Commission’s identification of a

factor other than the subject imports, namely, the Conspiracy,

can be said to “cut the causal link,” and supports the finding

that the subject imports here did not cause harm to the domestic
Consol. Court. No. 99-00628 Page 40

industry. See Altx, 25 CIT at 1105-06, 167 F. Supp. 2d at 1362.

Plaintiffs urge an analysis based on a comparison of

observations either taken before and after the Conspiracy Period

or taken entirely after the Conspiracy Period. The problem with

this analysis is that it ignores not only the tainted Conspiracy

Period data, but also any suggestion that the Conspirators’

behavior may have contributed to any injury. Because of this,

and because the ITC has supported its conclusions with

substantial evidence, the results on remand are sustained.
Consol. Court. No. 99-00628 Page 41

CONCLUSION

The Commission makes specific findings in its analysis of

volume, price effects, and impact, explaining its overall

conclusion that the domestic ferrosilicon industry was not

materially injured by the subject imports during the period of

investigation. Moreover, the ITC complies with this court’s

remand instructions in Elkem VIII. The ITC’s findings are

supported by substantial evidence and in accordance with law.

The ITC’s findings are sustained.

______/s/ Richard K. Eaton

Richard K. Eaton

Dated: September 5, 2008
New York, New York