American Silicon Technologies v. United States

MICHEL, Circuit Judge,

dissenting.

I would affirm the decision of the Court of International Trade sustaining the Department of Commerce’s (“Commerce”) remand result in which the financial expense ratio1 of the exporter, Companhia Brasi-leira Carbureto de Calcio (“CBCC”), was calculated based on the combined financial statements of CBCC and its immediate parent, Solvay do Brasil (“Brasil”). In so holding, I would not disturb Commerce’s established practice of using an ultimate parent company’s fully consolidated financial statement to determine financial expenses of a subsidiary in eases with facts different from this one.2

The ultimate issue for Commerce to determine is the exporter’s actual costs of production and sale of the subject merchandise.3 Commerce is obligated to rely upon methodologies that “reasonably reflect the costs associated with the production and sale of the merchandise.” 19 U.S.C. § 1677b(f) (2000). In calculating cost of production, Commerce must include “an amount for selling, general, and administrative expenses based on actual data pertaining to production and sales of the foreign like product by the exporter in question.” Id. § 1677b(b)(3). Here, the issue principally concerns one of the general expenses, financial expenses, i.e., the interest expenses on loans. The record in *1040this case shows substantial control by Bra-sil over CBCC’s financial expenses. However, there is no evidence, much less substantial evidence, that CBCC’s financial expenses pertaining to production and sale of silicon metal were controlled by or are accurately reflected in the consolidated financial statement of Solvay & Cie (“Sol-vay”), CBCC’s ultimate corporate parent. Thus, I agree with the trial court that actual financial costs incurred by CBCC are better derived by combining the financial expense ratios based on the statements of CBCC and Brasil rather than reviewing only the consolidated financial statement of Solvay.4

As verified by Commerce, Solvay is a Belgian conglomerate of over 400 companies.5 Solvay does business on five continents with subsidiaries and affiliates in the automotive, chemical, pharmaceutical, plastics, processing, shipping, and related industries. Solvay owns 100% of Brasil, which in turn owns 99.9% of CBCC. CBCC acknowledges that it is the only producer of silicon metal in the Solvay group.

Brasil is the Brazilian parent of CBCC. Commerce’s CBCC Verification Report of July 22, 1996, shows substantial interactions between Brasil and CBCC on financing during the period of review. Brasil listed CBCC as a source of financial receipts and expenses, and CBCC stated that the difference between its financial income and financial expenses was compensated by loans between Brasil and CBCC, and demonstrated that fact to Commerce verifiers. In addition, the president of the board of directors and administration counsel of Brasil is also the president of the board of directors of CBCC. Furthermore, Commerce found in prior segments of the antidumping duty proceeding on silicon metal from Brazil that Brasil had made a loan to CBCC to finance furnaces to be used to produce silicon metal and that subsequently, “[i]n order to extinguish its outstanding debt, CBCC issued new shares of capital stock to its parent company, [Brasil].”6 Further, Commerce then noted that CBCC and Brasil relied on “intercompany interest-free borrowing to meet their working capital requirements.”7

On the other hand, there is no evidence in the record showing loans or any other inter-company financial transactions directly between CBCC and Solvay or between CBCC and any Solvay subsidiary other than Brasil. In addition, after Commerce published its Preliminary Results, plaintiffs in this case argued that Brazilian firms normally would borrow in Brazilian credit markets or from Brazilian banks. During the rest of the course of this case (i.e., before Commerce, which published its Final Result after the Preliminary Results, twice before the trial court, and now before us), CBCC has not cited any evidence *1041to refute or even directly address plaintiffs’ arguments. CBCC supports its position solely with one fact: the undisputed majority equity ownership by Solvay of CBCC via Brasil.8

Majority equity ownership, however, does not necessarily lead to the conclusion that the consolidated financial statement of the ultimate parent company reflects the exporter’s actual costs of capital. Even the majority disagrees with CBCC’s argument for reliance solely on majority equity ownership; otherwise it would simply reverse rather than remand the case to Commerce. Admittedly, Commerce has discretion in determining which consolidated financial statement(s) within the corporate group should be used, or, whether to use any consolidated financial statement at all. However, this discretion is bound by the statutory requirement that it use methodologies that reasonably reflect the actual financial and other expenses associated with the production and sale of the subject merchandise.

According to the general provisions regarding antidumping duties, “[cjosts shall normally be calculated based on the records of the exporter or producer of the merchandise.” 19 U.S.C. § 1677b(f)(1)(A). Further, the Statement of Administrative Action (“SAA”) provides: “if Commerce determines that costs, including financing costs, have been shifted away from production of the subject merchandise, or the foreign like product, it will adjust costs appropriately, to ensure they are not artificially reduced.”9 Here, in view of the existence of loans between CBCC and Bra-sil during the period of review, Commerce, on remand from the trial court, correctly calculated CBCC’s financial expenses by combining the financial expense ratios of CBCC and Brasil. Additionally, in view of the absence of such financial transactions between CBCC and Solvay, it would be a gross and artificial reduction of CBCC’s financial expenses to use Solvay’s expense ratio, a mere one-sixth of that calculated from CBCC’s and Brasil’s statements. CBCC has not provided any evidence to justify such a reduction. In any event, such reduction of actual costs is prohibited by relevant statute and the SAA.

The majority does not provide any guidance as to what new evidence Commerce should be gathering and reviewing on remand to reach a more accurate calculation. Nor has it identified what new analysis of the evidence already in the record is required. It is not disputed that Solvay is a European conglomerate of hundreds of subsidiaries and affiliates that, on the record and as verified by Commerce, has no direct financial dealings with CBCC. Bra-sil, on the other hand, is not only the Brazilian parent company of CBCC, but also has made loans to CBCC. Although the existence of such financial transactions may not always be determinative of whether to use the statement of the ultimate parent, in the present case, the existence of such transactions with Brasil and the absence of such transactions with Solvay establish that Brasil exerted actual control over CBCC’s finances while Solvay did not. *1042The potential for manipulation by Solvay that the majority describes is negated by the established absence of loans or debt-equity swaps between Solvay and CBCC and the absence of loans to CBCC by any Solvay subsidiary other than Brasil.10 Commerce does not need to search again the “entire record.” It is indeed based on the existence and the absence of such financial evidence that Commerce now seeks affirmance of the trial court’s remand and final orders.

Given the undisputed facts of record, I agree with the trial court that the combined financial statements of CBCC (the company that produced, sold, and exported the subject metal during the period of review) and Brasil (the company that engaged in favorable intercompany loans with CBCC) better reflect the actual financial expenses pertaining to CBCC’s production and sale of silicon metal than the consolidated financial statement of Solvay alone. Solvay’s consolidated statement melds financing costs of its over 400 worldwide subsidiaries, all engaging in businesses other than silicon metal production and sale. The use of Solvay’s consolidated statement would artificially reduce the actual financial expense ratio of CBCC. Such use is a drastic deviation from the requirement that expense calculation should be “based on actual data pertaining to production and sales of the foreign like product by the exporter in question.” 19 U.S.C. § 1677b(b)(3) (emphases added).

I note that the trial court’s remand decision depended on the specific facts and circumstances of this particular case. As the contrary evidence is so clear here, no substantial evidence supports Commerce’s use of Solvay’s consolidated financial statement to calculate CBCC’s actual financial expenses pertaining to production and sale of silicon metal. Although I agree we owe Commerce deference, here Commerce abused its discretion in relying only on Solvay’s financial statement. Hence, I would affirm the decision appealed and also uphold the trial court’s remand order.

. A financial expense ratio is used by Commerce for calculating financial expenses, and is normally determined from dividing annual financial expenses by annual cost of goods sold as reflected in audited financial statements.

. Commerce’s practice is based on the notion that a parent company’s majority equity ownership is prima facie evidence of corporate control over a subsidiary, and with corporate control comes the power to control the capital structure of a subsidiary and to manipulate its financial expenses by granting, or requiring other subsidiaries to grant, the exporter loans on favorable terms. In this case, although there is evidence showing actual exercise of such control by the immediate parent company, evidence of actual exercise of control by the ultimate parent is absent.

.In its administrative reviews, Commerce first compares an exporter’s home market sales price with its cost of production ("COP”). If the home market sales are at prices above COP, Commerce, in its anti-dumping margin calculations, compares the price of each U.S. sale of subject merchandise to the weighted-average price for the exporter's contemporaneous home market sales. If no such home market sales are at prices above COP, Commerce compares the price of each U.S. sale to a weighted average constructed value, which is COP plus profit, for the margin calculation. Thus, COP is essential to Commerce's antidumping determination.

.I note that this appeal does not present a question of searching for a financial statement not yet in the record. Rather, it presents the question of which of two alternative sets of statements to use: the parent's (Brasil) consolidated statement plus CBCC's, or the consolidated statement of the grandparent (Solvay). The financial statement of CBCC, consolidated financial statement of Brasil, and that of Solvay are all in record and were examined by Commerce at one point or another in these proceedings.

. Plaintiffs-appellees Elkem Metals Company and Globe Metallurgical, Inc. state in their brief that Solvay owns more than 180 subsidiary and affiliated companies. The discrepancy between some 180 subsidiaries and 400 was not explained.

. Silicon Metal From Brazil, Final Results of Antidumping Duty Administrative Review, 59 Fed. Reg. 42,806, 42,807 (1994).

. Ferrosilicon from Brazil, 59 Fed. Reg. 732, 737 (1994) (emphasis added).

. The second time before the trial court, CBCC also stated that an individual held a senior management position simultaneously in Solvay, Brasil, and CBCC, and that Solvay consolidated CBCC on its 1995 financial statement. The trial court found neither of these facts demonstrated actual control of CBCC’s capital structure or borrowing by Solvay. American Silicon, 2001 WL 1223714, at *3. I agree.

. Agreement on implementation of Article VII of the General Agreement on Tariffs and Trade (relating to antidumping), Statement of Administrative Action, H.R. Rep. No. 103-826, at 835 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4172.

. The majority seems to believe that Commerce had never had a chance to read the financial statements of CBCC simply because the trial court later ordered Commerce to use the combined financial statements of Brasil and CBCC. To the contrary, Commerce verified in 1996 the relationship of CBCC, Brasil, and Solvay, the intercompany transactions between CBCC and Brasil, and the lack of such transactions between CBCC and Solvay. In addition, transactions between CBCC and Solvay or Solvay's other subsidiaries would be shown as entries on CBCC’s financial records, which Commerce relied on for part of its calculation of expense ratio. Moreover, if such entries do exist but were not noticed by Commerce, it is most implausible that CBCC has not brought them to light during Commerce's administrative review after plaintiffs' complaint, and in the course of this case, even though it mentioned other new evidence before the trial court (footnote 8, supra).