Slip Op. 02-18 UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: RIC HARD K. EATO N, JUDGE

__________________________________________ : ELKEM METALS CO.; AMERICAN : ALLOYS, INC.; APPLIED INDUSTRIAL : MATERIALS CORP.; and CC METALS & : ALLOYS, INC., : : Plaintiff s/Plaintif f-I nterven ors, :

: and : : GLOBE METALLURGICAL, INC., : : Plaintiff-Intervenor, : : v. : Consol. Court No. 99-10-00628 : UNITED STATES OF AMERICA : : Defend ant, : : and : : FERROATLANTICA DE VENEZUELA; : GENERAL M OTORS CORP .; ASSOCIA ÇÃO : BRASILEIRA DOS PRODUCTORES DE : FERROLIGAS E DE SILICO METALICO, : et al.; and RONLY HOLDINGS, LTD., et al., : : Defend ant-I nterven ors. :

__________________________________________ : Plaintiffs, domestic producers of ferrosilicon, moved for judgme nt upon agency

record in action challenging United States I nternational Trade Commission’s (“ITC”) reconsideration and reversal of final affirmative materia l injury determination. Plaintiffs claimed: (1) I TC did not possess authority to reconsider final affirmative material injury determination; and (2) if ITC possessed such authority, the r econsideration proceedings wer e improperly c onducted because, among o ther re asons, I

TC failed to hold hea

ring as provided in publishe d proced

ures tha t were to gover n such pro ceeding s. IT C and def endant- interve

nors arg ued: (1) ITC ha

d inhere nt author ityConsol. Court No. 99-10-00628 Page 2

to reconsider original final affirmative ma terial injury deter

mination; and (2) ITC’s reconsi deratio n procee dings we re prope rly conducte d, in that the IT C was not r equired to conduct a hearing because Plaintiffs did not request one. The Court of Interna tional Trade, Eaton, J., held: (1) ITC had authority to reconsider final affirmative material injury determination; an

d (2) I TC failed

to adher e to publis hed proc edures t hat were to gove rn its reconsideration proceedings; and, ther efore, reconsideration procee dings were conducted in a manner not in accordance with law.
[Case rema nded to I TC for

furt her a ction cons isten t with this o pinio n.]
Decided: February

21, 2002 Verner, Liipfert, Bernhard, McPherson and Hand ( William D. Kramer ); Eckert Seamans Cherin & Mellott, LLC (

Dale Hershey

and Mary K. Au

stin ), for Plain

tiff Elke m Metals Co mp an y. Doepke n, Keevi can & Weis s ( Gordon W. Schmidt

), for Plaintiff American Alloy s, Inc. Altheimer & Gray

( Theodore J. Low ), for Pla intiff Ap plied I ndustria l Materia ls Corporation. Arent Fox

Kintner Plo tkin &

Kahn, PLLC

( Stephen L. Gibson , George R . Kucik , and Nada S. Sulaiman ), for Plaintiff CC Metals and Alloys, I nc. Dangel & Fine, LLP

( Edward T. Dangel , III

, Michael K. Mattchen , and Jonathan L. Glover), for Plaintiff-Interve nor Globe Metallurgical, I nc. Lyn M. Schlitt , General Counsel, United States Inter national Trade Commission; James M. Lyons , Deputy Gene

ral Counsel, United States International Tra de Commission (

Marc A. Bernstei n ), for De fendant

. Kaye, Sc holer, Fie rman, Hay

s & Handler, LLP

( Julie C. M

endoza , Donald B. Cameron , R. Wi ll Planert

, and Margaret E. Scicluna ), for Defendant-I ntervenor Ferroatlantica de Venezuela. Hogan & H

artson LLP (

Mark S. M

cConnell and Jonathan J. Engler

), for De fendant

Intervenor Gene

ral Motors Corporation. Dorsey & Whitney LLP (

Philippe M. Bruno and Kevin B. B edell ), for De fendant

Inte rvenors Associaç ão Bra sileira d

os Produc tores de

Ferrol igas e d

e Silico Me

talico, Co mpanhia Brasileira Carbureto de Calcio-CBCC, Companhia de F erroligas de Bahia-F ERBASA, Nova Era Silicon S/A, Ital

magnes io S/A-I

ndustria e Comerc io, Rima I

ndustria l S/A, and Co mpanhiaConsol. Court No. 99-10-00628 Page 3

1 Ferrosilicon is an iron alloy used in the production of steel and cast iron. See Ferrosilicon from Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine, a nd Venezue la , 64 Fed. Reg. 51,097, 51,097 (Sept. 21, 1999). Ferrol igas Minas Gera

is-Minasl igas. Aitken I rvin Berl in & Vrooman, LLP

( Bruce Aitken and Virginie Lecaillon ), for Defend ant-I nterven ors Ronly Holding s, Ltd ., Cheliub inski Electrometal urgica l Works, Kuznetsk Ferroa lloy Works, Stak

hanov Fe rroalloy Works, and

Zapor ozhy e Ferr

oalloy Works.

OPINION

& ORDER EATON, Judge: Be fo re th e c ou rt ar e t he mo ti on s o f p la in ti ff s E lk em Me ta ls Co mp an y, America n Alloys, Inc., Appli ed I

ndustria l Materia ls Corpora

tion (“AI MCOR”), a

nd CC Metal s and Alloys, I

nc. (“CCMA”), and plaintiff-intervenor Globe Metallurg ical, Inc. (“Globe ”) (collectively “Plaintiffs”), for judgment upon the agenc y recor d pursuant to USCIT R. 56.2. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(a)(2)(B)(ii). F or the reasons set forth below, the court remands this case to the United States I nternational Trade Commission (“ITC”) for further a ction consistent with this opinion.

BACKGROUND Plaintiffs challenge the I TC’s reconsideration and reversal of its final af firmative material injury determinations in antidumping investig ations Nos. 731-TA-566-570 and 731-TA-641 (Final) covering ferr

osilicon 1 from Br

azil, China , Kazakhs tan, Russia , Ukrain e, and Ve nezuela and countervailing duty

investigation No. 303-TA-23 (Final) covering ferrosilicon from Venezuela (“Final Determination”).Consol. Court No. 99-10-00628 Page 4

In 1993 and 1994, shortly after the United States Inter national Trade Administration found that ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Ve nezuela was being sold in the United States at less than fair value, and that the Vene zuelan government was subsidizing

ferros ilicon sal es, the I

TC deter mined tha t such sal es were

causing materia l injury to the ferrosilicon industry in the U nited States. It then issued the Final Determination, the reconsideration and reversal of which is the subjec t of this dispute. Based on the Final Determination, the United States Department of Commerce (“Commerc e”) issued antidumping orders against ferrosilicon from B razil, China, Kazakhstan, Russia, Ukraine, and Venezuela, and a countervailing duty

order against ferrosilicon from Ve nezuela. See Antidumpin g Duty Order: Ferrosilicon From the People’s Republic of China , 58 Fed. Reg. 13, 448 (Mar . 11, 1993) ; Final Affirmative Countervailing Duty Determination: Ferrosilicon From Venezuela; and Counterv ailing D

uty Order f or Certa in Ferr osilicon F rom Vene zuela , 58 Fed. Reg. 27,539 (May 10, 1993), amended by

58 Fed. R

eg. 36, 394 (July

7, 1993); Antidumpin

g Duty Orders: Ferrosilicon From Venezuela and the Russian Fe deration , 58 Fed. Reg. 34,243 (June 24, 1993); Antidumping Duty Orde

rs: Ferrosilicon From Kazakhstan and Ukraine , 58 Fed. Reg. 18,079 (Apr. 7, 1993), amended by 60 Fed. R

eg. 64, 018 (Dec . 13, 1995) ; Antidumping Duty Orde r: Ferros ilicon Fr

om Brazil , 59 Fed. Reg. 11,769 (Mar. 14, 1994).

The imposition of these orders remained unchallenge d until 1998, when certain Brazilian ferrosilicon producers petitioned the I TC to institute a review of the Final Determination relating to ferrosilicon from that country . The petition alleged that a, then, recently disclosed price-fixing conspira cy among some domesti c manufa cturer s, and its c onseque

nt distorti on of the price da taConsol. Court No. 99-10-00628 Page 5

presented to the ITC during its original material injury investigations, constituted “changed circumstances” sufficient to warrant re view pursuant to 19 U.S.C. § 1675(b). See Ferrosilicon From Br azil, China , Kazaksta

n [sic], Russia , Ukrain e, and Ve nezuela , 63 Fed. Reg. 27,747 (May 20, 1998). On July 28, 1998, the I TC instituted the requested changed circumstance s review and, further, self-initiated changed c ircumstances reviews of the other relate d final affirmative material injury dete

rminations—i.e., those pertaining to ferrosilicon from China, Kazakhstan, Russia, Ukraine, and Venezuela. See Ferrosilicon From Brazil, China, Kazakhstan, Russia, Ukraine , and Venezuela , 63 Fed. Reg. 40,314 (July 28, 1998)

.

In May 1999, the ITC suspended these cha nged circumstances reviews a nd gave notice of its intention to “reconsider” its Final Determination. See Ferrosilicon From Brazil, China, Kazakhsta

n, Russia, Ukraine , and Venezuela , 64 Fed. Reg. 28,212 (May 25, 1999) (“ Notice ”); see also USITC Pub. 3218, at 6 (Aug. 1999) (stating that “reconsideration was a more appropriate procedure for re view of the original determinations”). The Notice stated: The [I TC] . . . has s

uspende d the [cha

nged c ircumsta

nces re views] and is instituting proceedings in which it will reconsider its [Final Dete rmina tion]. For fur ther information c oncerni ng the c onduct of

this reconsideration and rules of gene ral application, consult the Commission’ s Rules of Pr actice and Proc edure, p art 201, s ubparts A through E (19 CFR part 201), and part 207, subparts A, C, and D (19 CFR part 207). Notice , 64 Fed. Reg. at 28,212.Consol. Court No. 99-10-00628 Page 6

2 On this point, the ITC stated: (continued...) Further, the Notice alerted interested parties that the record f rom the changed circumstances reviews would “be incorpora ted into the record of the[] reconsideration proceedings” (“Reconsider ation Proceedings”). I

n addition, the Notice stated: Each Party c an submit comments, including new factual information . . . limited to the issues of (a) the price-fixing conspiracy , or other anticompetitive conduct relating to the orig inal periods of investigation, and (b) any possible material misrepresentations or material omissions, by a ny entity that provided informat ion or ar gument i n the orig inal inve stigations, concerning: (1) the conspiracy or other anticompetitive conduct or (2) any othe

r matter. See Notice , 64 Fed. Reg. at 28,213.

Thereafter, the I TC reversed and vacated its Final Dete rmination, and issued a negative injury

determination as to the original investigations. See Ferros ilicon Fr om Brazil , China, Ka

zakhstan, Russia, Uk

raine, a nd Venezu

ela , 64 Fed. Reg. 47,865 (Sept. 1, 1999) (“Reco nsidera

tion Dete rmination ”); see ge nerally USIT C Pub. 3218, at 1. As pa rt of this Reconsideration Determination, the IT C concluded that it need not examine whether the alleged price-fixing conspiracy

actually distorted the domestic f errosilicon prices at issue in the original investigations. See USITC Pub. 3218, at 23–24 (“[The I TC] cannot conclude what, if any , of the
repres entation s made by

the domes tic produ

cers on pricing

and mark

et condit ions are sufficie ntly credibl e to rely

on. Conseq

uently , in our re consider

ation det erminati ons we ha

ve taken adverse infere nces ag ainst thes e firms a nd used the

facts otherwise a

vailable , as authorized by the statut e and case law.”). 2 As a result, the ITC concluded tha t, during the period under review in theConsol. Court No. 99-10-00628 Page 7

2 (...continued) The discu ssion [here ] demonstra tes that . . . each [pa

rty] withheld or misrepresented essential information directly relevant to the Commission’ s statutor

y ma ndate: whether th e domestic industry is materia lly i njured by reason o f subjec t imports. B y su ch condu ct, these producers significantly impeded, undermined, and compromised the integrity of the Commission’s investigations. The Commission’s governing statute provides that “wheneve r a party . . . re fuses or is unable to produce information requested in a timely manner a nd in the f

orm requ ired, or otherwis e signif

icantly impedes a n investig ation, [the

Commission shall] use the best information otherwise available.” This provision enables the Commission . . . to avoid “rewarding the uncooperative and recalcitrant party

for its failure to supply re quested information . . . .” See USITC Pub. 3218, at 21 (footnotes omitted). original investigations, the domestic ferrosilicon industry “in the United States [was] neither materially injured nor thr eatened with material injury by reason of

imports of ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela that have be en found by . . . Commerce to be sold at less than fair value and imports of ferrosilicon that . . . Commerc e has found [were] subsidized by the Government of Ve nezuela.” See Ferros ilicon Fr om Brazil , Kazakhsta

n, People ’s Republi c of China , Russia, U kraine, and Vene zuela , 64 Fed. Reg. 51,097, 51,098 (Se

pt. 21, 199 9); see also

USITC Pub. 3218, at 4.

In accorda

nce with the ITC’s Reconsidera tion Determination, Commerce “rescinded” the antidumping and countervailing duty orders covering the subject imports. See Ferrosilicon From Brazil, K azakhsta n, People ’s Republi c of China , Russia, U kraine, and Vene zuela , 64 Fed. Reg. atConsol. Court No. 99-10-00628 Page 8

3 Excepted from these instructions were all entries of ferr osilicon from Venezuela, which were, and remain, the subject of a pr eviously gr

anted preliminary

injunction. See AIMCOR v. United States , 23 CIT __, 83 F. Supp. 2d 1293 (1999).

4 The separate suits against Commerce we re also consolidated under Consol. Court No. 99-10-00660. This action is staye d pending resolution of the merits of the case at bar

. 51,098. In conjunction with this rescission, Commerce terminated all re lated administrative reviews, see id. , and instructed the United States Customs Service to liquidate all unliquidated entries. 3 See id. at 51,099.

Subsequently, Plaintiffs brought sepa rate suits challenging the actions of the I TC, and these sui ts were c onsolidat

ed. This c onsolidat

ed action is curr

ently before the cour t, 4 and in it Plaintiff s raise b oth proce dural an d substant

ive issue s. At this tim e, howev er, the c ourt nee d only address two procedural issues: (1) whether the I TC had the authority to rec onsider its Final Determination; and (2) if the IT C possessed such authority, whethe r the Reconsideration Proceedings were improperly conducted because, among other reasons, the ITC failed to hold a hearing as provided for in the proce dures that it published as those that would govern the Reconsid eration Proceed ings.

The ITC and defenda

nt-intervenors Ferroatlantica de Ve nezuela (“Ferroven”), Ge neral Motors Corporation (“GM”), Associação Bra sileira dos Productores de Ferroligas e de Silico Metalico, Companhia Brasileira Carbureto de Calcio-CB CC, Companhia de Ferroligas de BahiaFERBASA, Nova Era Silicon S/A, Italmag nesio S/A-Industria e Comercio, Rima I ndustrial S/A, and Companhia Ferroligas Minas Gera is-Minasligas; and Ronly Holding s, Ltd., CheliubinskiConsol. Court No. 99-10-00628 Page 9

Electrometalurgical Works, Kuznetsk Ferroalloy Works, Stakhanov Ferroalloy Works, and Zaporozhye Ferroalloy

Works (collectively “De fendants”) argue that: (1) the ITC had the inher ent au thori ty to reco nsid er its Final Determ inati on; an d (2) t he Reco nsid erati on Pro ceedin gs were properly

conducted, in that the ITC was not requir ed to conduct a hearing beca use Plaintiffs did not request one.

STANDARDOF REVIEW The court, when reviewing final de terminations made pursuant to 19 U.S.C. § 1516a(a)(2)(B)(ii), will hold unlawful those ag ency de terminations, findings or conclusions that are unsupported by

substantial evidence on the record, or otherwise not in ac cordance with law. 19 U.S.C. § 1 516a(b) (1)(B) (i); see Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966) (“[T]he possibility of drawing two inconsistent conc lusions from the evidence does not prevent an administrative agency ’s finding from being supported by substantial evidence.” (citations omitted)) ; Inland Steel I

ndus., Inc. v. United States , 188 F.3d 1349, 1359 (Fed. Cir. 1999); Hoogovens Staal, BV v. United States , 24 CI T __, _ _, 86 F . Supp . 2d 13 17, 13 23 (2 000) (“[I ]n reviewing agency

determinations the court declines to reweigh or r einterpret the evidence of record .” (cita

tion omitte d)); see also Consol. Edi son Co. v. N LRB , 305 U.S. 197, 229 (1938) (“Substa ntial evid ence is more than

a mere s cintilla. It me ans such r elevant evidenc e as a reasonable mind might accept as adequa te to support a conclusion.” (citations omitted)).Consol. Court No. 99-10-00628 Page 10 DISCUSSION I. Authority to Reconsider In considering the issue of the ITC’s power to rec onsider the Final Determination, two questions need to be examined: first, does the ITC have the a uthority to reconsider a

final determination; and second, in the event that it possesses such authority , does it extend to a reconsideration taken approximately four and one-half y

ears after such final determination was

re nde re d?

As to the f

irst quest ion, Plaint

iffs cla im that the

ITC di d not have

the authority

to reconsider the Final Determination, beca use the ITC is “‘entirely

a creature of statute [and] [a]ny authority deleg ated or granted to [it] . . . is necessarily limited to the terms of the delegating statute.’” (CCMA’s Mem. Supp. Mot. J. Agency R. a t 8–9 (alteration in original) (quoting Sealed Air Corp. v. United States Int’l Trade Comm’n , 645 F.2d 976, 993 (C.C.P.A. 1981).) This being the case Plaintiffs argue, sinc e “Congress[] fail[ed] to grant the ITC re consideration authority in antidumping investig ations . . . affirmative injury de terminations in antidumping proceedings cannot be rec onsidered by the I TC . . . .” ( Id. at 9.)

Defendants, on the other hand, arg ue that administrative agencies in gene ral, and the ITC in partic ular, ha ve the inh erent a

uthority to institute

reconsi deratio n procee dings so a s “to vindicat e the inte grity

of the ad ministrati ve proce ss.” (ITC’s Mem. O pp’n to Mot . J. Agenc

y R. at 13.) In addition, Defenda nts argue that the antidumping statute does not “prec lude reconsiderations under appropriate circ umstances.” (Ferroven’s Mem. Opp’n to Mot. J. Agenc yConsol. Court No. 99-10-00628 Page 11

R. at 13 (citation omitted).)

The court agrees with Defe ndants. It is indeed the gene ral rule that federal age

ncies have the power to reconsider their final determinations. Trujillo v. Gen. Elec. Co. , 621 F.2d 1084, 1086 (10th

Cir. 1980)(“Admini strative agenc ies have

an inher ent authority

to recon sider the ir own deci sions, sinc e the pow er to dec ide in the first insta

nce car ries with it the powe

r to reconsi der.” ( citation o mitted)) ; Prieto v. United States , 655 F. Supp. 1187, 1191 (D.D.C. 1987) (“Ther e can be no dispute

that admin

istrative agenc ies have

inheren t power to

reconsi der thei

r own deci sions . . . .”

(citatio ns omitted) ); accord Bookman v. United States , 453 F.2d 1263, 1265 (Ct. Cl. 197 2) (“[I ]t may

be imper ative fo r [agen

cies] to consider ne

w develo pments or newly discovered evidence in order to fac ilitate the orderly a nd just resolution of conflict. . . . [Therefore,] ‘[e]very tribunal, judicial or administrative, has [the] power to correct its own errors or otherwise appropriately to modify its judgment[s] . . . .’” (citation omitted)).

Plaintiff s contend , howeve

r, that thi s inhere

nt author ity t o recons ider fina

l decision s is limited to adjudicative rather than investigatory agencies (CCMA’s Mem. Supp. Mot. J. Agency R. at 10) and that because the I TC’s “proceedings are not ‘a djudicative[]’” it, therefore, “has no ‘equitable’ powers when acting in its investiga tive capacity .” Id. Indeed, in Grupo I ndus. Camesa v. United States , 18 CIT 461, 463, 853 F. Supp. 440, 443 (1994), aff’d , 85 F.3d 1577 (Fed. Cir. 1996), this court held, inter alia , that Congress intended the IT C’s “hearing[s] to be non-adjudicative in nature.” However, while the I TC is usually characterized as an investigatory rather than an a djudicat ive age ncy , this cour

t in later decision s has foun

d that the ITC r enders i tsConsol. Court No. 99-10-00628 Page 12

5 Compare Pesquera Mares Australes L tda. v. United States , 266 F.2d 1372 (Fed. Cir. 2001) (“In short, Commerce’ s antidumping determinations are ‘adjudication[s] that produce . . . ruling s for whic

h defer ence [und er Chevr on] is claim ed.’” ( citation o mitted)) ; but see Nippon Steel Corp. v. United States , Slip Op. 01-154, at 6 n.4 (Dec. 31, 2001) (finding antidumping proceedings investigative beca use their “basic core findings must be made without re gard to the claims of the parties, ex parte factual submissions are permitted, there is no administrative law judge, and there is no formal recor d prior to the final determination.” (emphasis in original)).

6 The court in Alberta Gas Chems., Ltd. relied on Hazel-Atlas Glass Co. v. HarfordEmpire Co. , 322 U.S. 238, 244 (1944), where the Supreme Court stated, in discussing the (continued...) final determinations in a quasi-adjudicative manner. See Fujian Mach. & Equip. & Exp. Corp. v. United States , 25 CIT __, __, Slip Op. 01-120, at 10 (Sept. 28, 2001) (“The proc eedings in an antidumping investigation or administrative review constitute a very strange creature in the taxonomy of modern American a dministrative law. [Although] Congress has stated that such proceedings are ‘investig atory’ ra ther than adjudicatory

. . . the Court of International Trade

. . . has observed that in substance they are quasi-adjudicatory .” (citation omitted)). 5 In fa ct, cour ts have explicitly found the ITC to have the authority to re consider its final determinations. See Borlem S.A. – Empreedimentos Industriais v. United States , 913 F.2d 933, 938–39 (Fed. Cir. 1990) (f inding Co urt of I nternat ional Tra de has the authority to order ITC, o n remand , to reconsi der a pr

ior dete rmination where s uch dec ision was b ased on e rroneou s data); see also Alberta Gas Chems., Ltd. v. Celanese Corp. , 650 F.2d 9, 12–14 ( 2d Cir. 198 1) (“Thi s univers ally accepted rule [that Federal Courts possess the authority to reconsider their final decisions] has been applied to proceedings befor e federal administrative agenc ies. . . . We find no reason, theref ore, not t o give th e [ITC ] the oppor tunity to resolv e in the f

irst insta nce the major issue s in this litigation.” (citation omitted)). A finding that the I TC has the authority to rec onsider a final determination is particularly appropriate where after- discovered fraud is alleged. 6 See AlbertaConsol. Court No. 99-10-00628 Page 13

6 (...continued) inheren t power o f feder

al court s to reco

nsider th eir fina

l judgme nts, “the re has existed . . . a

rule of equity to the eff

ect that under certain circumstances, one of which is after-discovered fraud, relief will be granted ag ainst judgments regardless of the term of the ir entry.” A lthough Hazel dealt wit h a fede ral cour t’s inher ent authority

to recon sider final judgments Alberta Gas Chems., Ltd. , extended this reasoning to cover federal a gencies. Alberta Gas Chems., Ltd. , 650 F.2d at 12–13 (“ This unive

rsally accept ed rule h as been a

pplied to f

ederal agenc ies. . . . U

nder the se circumstances, it makes good sense to allow the [I TC] to determine initially whether there w as perjury a nd if there was, whether the perjury affected the result before the [I TC].”). Gas Chems., Ltd. , 650 F.2d at 13 (“It is hard to imag ine a clearer case for

[the ITC] exercising this inherent power than when a fraud has bee n perpetrated on the tribunal in its initial proceeding.”).

Here, the Final D etermina tion was pr

edicate d on, what

the I TC later d

escribe d as, “serious material misrepresentations and omissions [Plaintiffs] made during the original investig ations on t

he key issue of f errosili con pric ing.” ( ITC’ s Mem. Opp ’n to Mot. J. Agency R. at 5.) According to the I TC’s brief, during the change d circumstances reviews, it learned “that individuals from the domestic ferrosilicon industry w ho provided information . . . in [the]

or ig in al in ve st ig at io ns we re ei th er in vo lv ed in or pe rs on al ly a wa re of th e p ri ce -f

ix in g c on sp ir ac y” that overlapped a substantial portion of the original investigation per iod. ( Id. ) Since “[t]hese [individuals] testified and submitted information . . . asserting that the ferrosilicon market was driven by intense pric e competition” ( id. ) it seems, therefore, to “make[] good sense,” see Alberta Gas Chems., Ltd. , 650 F.2d at 12, tha t the I TC examine w

hether t he data r elied on i n making its Final Determination was either false or misleading . Thus, the court finds that the ITC possessedConsol. Court No. 99-10-00628 Page 14

7 In finding that the I TC had the authority to rec onsider the Final Determination, the court need not, and does not, make any findings with respect to the allegations of materia l misrepre sentation s or omissions themse lves. the authority to rec onsider the Final Determination. 7

Having determined that the I TC had the power to reconsider its Final Determination, the court addresses the question of whether too much time passed fr om the issuance of the Final Determination to the date the ITC initiated its Reconsidera tion Proceedings. Plaintiffs argue that the “I TC did not [conduct its Re consider ation Proc eeding s] within a r easonab le time af

ter it knew or s hould hav e known of the [price -fixing c onspirac y] c onviction s.” (CCMA’ s Mem. Supp. Mot. J. Agency R. at 16.) The I TC, however, argues that it “initiated [the Reconsideration] [P]roceedings promptly after information about the misrepresentations and omissions in the original investigation was presented to it . . . .” (I TC’s Mem. Opp’n to Mot. J. Agency R. at 16.)

The question presented to the court, then, is whether the four a nd one-half year period of time that elapsed between the Final Determination and c ommencement of the Reconsideration Proceedings was reasonable. See Belville Mining Co. v. United States , 999 F.2d 989, 997 ( 6th Cir. 1993) (“Even where there is no express rec onsideration authority for a n agency , however, the general rule is that an ag ency ha s inherent authority to re consider its decision, provided that reconsideration occurs within a reasonable time a fter the first decision.” (citations omitted)). Under th e facts

present ed here , the cour

t finds tha t the Reconsidera

tion Proce edings w ere hel d within a reasonable time. In ac cordance with its statutes and its regulations, the I TC does not monitor subsequent developments as they pe rtain to a particular final determination. AfterConsol. Court No. 99-10-00628 Page 15

rendering a final affirma

tive determination, the ITC publishes its findings in the Fede ral Register and commu

nicates them to Comme

rce, wh ich then i ssues an a

ppropria te order . The I TC, theref ore, wa s under no

obligat ion to monitor the dome stic fer rosilicon industry subseque nt to render ing its F inal Dete

rmination ; nor is it r

easonab le to expect that the I TC should ha

ve done s o of its own accord. The statutory scheme governing an a

ntidumping or countervailing duty final affirmative determination provides, however, for va rious kinds of reviews—e.g., chang ed circumstances reviews and five-y ear reviews—that allow interested parties to bring relevant developments to the

ITC’ s attention. Thus, a llegat ions of fr aud, of th e kind mad

e here, would necessarily

come to the ITC’s attention, if at all, at a time somewha t remote from the original investigations. Indeed, in this case, the evidence of the purported fraud ca me to light during the course of changed circ

umstances reviews. See Ferrosilicon From Brazil, China, Kazakhstan, Russia, Uk

raine, a nd Venezu

ela , 63 Fed. Reg. at 40,314. Thereaf ter, the ITC acted promptly , by suspending the changed circ umstances reviews, and initiating the Reconsideration Procee dings. See Notice , 64 Fed. Reg. at 21,812. On this point the IT C has stated:

During the changed cir

cumstances review, the Commission received extensive information and argument re garding the pricefixing conspiracy a

nd its implications for the Commission’s determinations. Af

ter cons idering

the infor mation and argu

ment, the Commission determined that reconsideration was a more appropriate procedure for re view of the original determinations. . . . Thus, on May 21, 1999, the Commission suspended the chang ed circumstances review and instituted a reconsider ation of the original determinations. USITC Pub. 3218, at 5–6 (footnote omitted). Thus, the I TC took action soon after it possessed information it believed substantiated the allegations concerning the price-fixing conspiracy

. Therefore, even though the pe riod of time that elapsed between the Final Deter mination and theConsol. Court No. 99-10-00628 Page 16

commencement of the Reconsideration Proceeding s was substantial, it was not unreasonable.

II. Adherence to Procedures In their briefs, Plaintiffs contend that, in dec iding whether they were entitled to a hearing during the course of the Reconsideration Proce edings, the court must address the issue of whether the ITC violated their c onstitutional due process rights. In support of their c ontention, Plaintiffs argue that due process require d that they be g ranted an evidentiary

hearing because “a

n opp ort uni ty to b e he ard

wascen tra l to t he f act -fi nding p roc ess .” ( Glo be’ s Me m. Su pp. Mot . J. Agency R. at 23.) A nd, t hat “[ i]n t aking t he ‘ex traor dinar y step’ of . . . i nsti tuti ng a reconsideration proceeding . . . the I TC should have recognized that its inquiry had changed from the conventional economic investigative ambit to [a] historical fact-finding [procedur e.]” ( Id. at 24.) Defendants, for their part, contend that Plaintiffs’ constitutionally protected interests were not violate d in the Rec onsidera tion Proce edings, because “[a] prer equisite f or due pr ocess protect ion is [that Pl aintiffs

have] some

interest worthy of prote ct[ion].” ( GM’s Mem. Opp’n to Mot. J. Agency R. at 23 (c itation omitted).)

While both Plaintiffs and the ITC couch their arg uments, at least in part, in constitutional terms, the issue of whether Plaintiffs’ constitutional due process rights wer e violated need not be addressed to decide the questions presented. See Transcom, Inc. v. United States , 182 F.3d 876, 879–80 (Fed. Cir. 1999) (“[W]e need not address [Plaintiff]’s argument that the . . . administr ative re views viol ated [Plain

tiff]’s ri ghts und

er the du e proce ss clause

of the Fi fth Amendment to the Constitution, because we hold that Commerce’s conduct in this case violatedConsol. Court No. 99-10-00628 Page 17

Commerce’s statutory a

nd regulatory

notice obligations in connection with the administrative reviews .” (cita

tion omitte d)); see also NEC Corp. v. United States , 21 CIT 933, 946 , 978 F. Supp . 314, 326–2 7 (199 7) (qu otin g Norwegian Nitrogen Prods. Co. v. United States , 288 U.S. 294, 321 ( 1933)). T

he court , theref

ore, nee d not consi der the proposed c onstitutional issues i f the matters in question can be settled by reference to statute. Transcom, Inc. , 182 F.3d at 879–80. To reach this determination, however, the court must examine whether Plaintiffs we re afforded a proceeding

conducted in accordance with: (1) the pr ovisions of the Notice ; and (2) the ITC’s governing

law, and the regulations promulgated ther eunder. NEC Corp. , 21 CIT at 946, 978 F. Supp. at 326–27.

As to Plaint

iffs’ ar gument t hat the Re consider

ation Proc eeding s were im properl y conducted because they

were not afforded a hear ing, Defendants argue

that Plaintiffs “did not request . . . any

additional hearing during [the R]econsideration [P]roceeding[s]” and, therefore , it was not req ui red to con duc t o ne. (ITC ’s M em. Opp ’n t o Mo t. J. Age ncy R . at 5, 2 9.) In support of its argument, the ITC re lies on subsection 1677c of title 19, which states: “[T]he . . . Commission shall . . . hold a hearing in the course of an investigation upon the request of any party to the investigation before making a final de termination under section 1671d or 1673d of this title.” 19 U.S.C. § 1 677c(a) (1) (198 8) (emph asis adde d). The s tatute ci ted by Defend ants, however, does not end the matter. The ITC was bound to conduct the Reconsideration Proceedings not only

in accordance with its statutes, but also in accordance with the regulations referred to in the Notice . That the ITC was require d to give notice to interested parties reg arding how the Reconsideration Proceedings would be conduc ted is well settled. See , e.g. , Am. La mbConsol. Court No. 99-10-00628 Page 18

8 See Ferrosilicon from Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine , and Venezuela , 64 Fed. Reg. at 51,098 (“The I TC’s action in these cases is unique and there is no statutory provision which e xplicitly provides for the manner in which the De partment should rescind these orders. . . . I n this instance, therefore, rescission of the[se] ferrosilicon orders from the dates of issuance is the leg al equivalent of the action required to be taken by the Department under sections 705(c)(2) and 735( c)(2).”). Co. v. United States , 785 F.2d 994 (Fed. Cir. 1986). I t is equally well settled that once it g ave notice a s to how the

Reconsid

eration Proceed ings wou ld be cond

ucted, th e IT C was req

uired to actually conduc

t those proceedings in accordanc e therewith. See PPG Indus., Inc . v. United States , 13 CIT 183, 190 n.4, 708 F. Supp. 1327, 1332 n.4 (1989) (“[A]n age ncy' s failure to follow its own rules and procedures is fatal to action.” (citation omitted)). I n addition, the ITC was obli gated t o not ify inter ested parti es of an y change in t he man ner in which these procee dings would be conducted. See Gen. Elec. Co. v. United States , 53 F.3d 1324, 1329 (D.C. Cir. 1995) (“If, by reviewing the regulations and other public statements issued by the ag ency, a regulated party acting in good faith would be able to identify , with ‘ascertainable certainty,’ the standards with which the agency

expects parties to conform, then the agency has fairly notified a petitioner . . . .” (citation omitted)).

Here, while the ITC sty

led its proceedings as a reconsidera tion, it had no statutory or regulatory

guidance as to how the proceeding s were to be conducted. 8 (Oral Arg. Tr. 9/05/01, at 119.) Under these circumstances, it was not unrea sonable for the ITC to rely on existing regulations and, thus, it notified interested parties to look to “the Commission’s Rules of Practice and Proc edure, p art 201, s ubparts A through E (19 CFR p art 201) , and par t 207, subp arts, A, C , and D (19 CFR part 207).” Notice , 64 Fed. Reg. at 28,212. By doing so, the ITC informedConsol. Court No. 99-10-00628 Page 19

9 This is particularly sig nificant as to Globe for, although Globe was par ty to the proceedings leading to the F inal Determination, it did not participate in the changed circumstances reviews. Notice , 64 Fed. Reg. at 28,212; ( see also

IT C’s Mem . Opp’n

to M ot. J. Agency R. at 27.) interested parties that were entitled to rely on the provisions of subsection 207.23(a), which state, in relevant part, “[t]he Commission shall hold a hearing concerning an inve stigation before making a final determinat

ion . . . .” 19 C.F.R. § 207.23 (1 993). Thu s, the I TC gave notice “ with ascertainable certainty,” Gen. Elec. Co. , 53 F.3d at 1329, that there would be a hearing prior to a final determination being rendered, ther eby cre ating an obligation on its part to provide such hearing. See Mercer

v. Dep’t of Healt h and Huma

n Servs. , 772 F.2d 856, 859 (Fed. Cir. 1985) (“Where the agency

has adopted a procedure that provides for a predecision hearing the denial of [this] predecision hearing is clear error.”).

Rather than doing so, however, the ITC concluded no new hearings would be held. Inste ad, the I

TC include d in the re cord a Jan uary 22, 1993 he aring c onducted in connec

tion with the original investigation leading to its Final Deter mination, see USITC Pub. 2606, App. B, and, further, incorporated into the record a se cond hearing conducted on April 13, 1999, during the changed circumstances re views. (ITC’s Mem. Opp’n to Mot. J. Agency R. at 28.) Each hearing was held before the I TC gave notice that it had suspended the chang ed circumstances reviews and institu

ted the Re consider

ation Proc eeding s. 9 These he arings , howeve r, were not suffic ient to fulfill the ITC’s commitments. Although the ITC may not have bee n required by

statute to grant a heari ng durin g the co urse of t he Recon siderati on Proce edings, by d irecting interest ed parti es to the regulations cited in the Notice it created an obligation to do so. See Mercer , 772 F.2d at 859.Consol. Court No. 99-10-00628 Page 20

In addition, by

citing these regulations in the Notice , the ITC obliged itself to conduct the Reconsid eration Proceed ings in e very particu lar in ac cordanc e with thos e regu lations. T

hus, Plaintiffs were entitled not only to a he aring, they were also entitled to all of the other benefits of the “Commi ssion’s R ules of Pract ice and Proced ure, part 201 , subparts A through E (19 CFR part 201), and part 207, subparts, A, C, and D (19 CFR part 207)[]” Notice , 64 Fed. Reg. at 28,212, including adequate notice, pre-hea ring briefing and post-hear ing briefing. See 19 C.F.R. § 207.20(b) (“Upon receipt of notice from the a dministrating authority of a n affirmative preliminary dete

rmination [or] notice of an affirmative final determination . . . the Commission shall publish in the Federal Register notice of its investigation to rea ch a final determination . . . .”); 19 C.F.R. § 207.22 (“Each party may submit to the Commission, no later than a date specified in the notice of investigation, a pr ehearing brief.”); 19 C.F.R. § 207.23(a ) (“The Commission shall hold a hearing concerning an investigation before making a f inal determination . . . .”); 19 C.F.R. § 207.24 (“Any party may

file a posthearing brief conce rning the information adduced at or after the hear ing with the Secretary

within a time specified in the notice of investigation or by the presiding official at the hearing .”).

Finally, as to the I

TC’s contention that it need not examine whether the alleged price

fixing conspiracy a

ctually distorted the domestic fe rrosilicon prices at issue in the original investigations, should evidence with respect thereto be pre sented during the course of the further proceedings on remand, the I TC shall consider such evidence as it would consider any other evidence on the record. See 19 U.S.C. § 1677e (1988).Consol. Court No. 99-10-00628 Page 21 CONCLUSION For the r easons se t forth ab ove, the c ourt find s that, whi le the ITC had the authority to reconsi der its F inal Dete

rmination , it faile d to adher e to the pr

ocedure s that it pub lished as those that would govern its Reconsideration Proceedings. The Reconsideration Proceedings were, thus, conducted in a manner not in accordance w ith law and, therefore, the Reconsideration Determination is remanded to the ITC for further action consistent with this opinion. The parties shall consult, and propose an order governing timing of the remand proceedings no late r than March 4, 2002.

_______________________________ Richa rd K. E aton, Judge

Dated: February

21, 2002 New York, New YorkERRATUM

Elkem Met

als Co., et al. v. Un

ited State s, et al. , Consol. Court No. 99-10-00628, Slip-Op 02-18, dated February

21, 2002.

Page 2: Counsel for Plaintif f Elkem should rea

d as follo ws: Verner, Liipfert, Bernhard, McPherson and Hand ( William D. Kramer

); Eckert Seamans C

herin & Mellott, LLC (

Dale Hershey

and Mary K. Au

stin ); Howrey, Simon, Arnold & White ( John W . Nields, J r. and Laura W. Shores ) f or Pl ai nt if

f E lk em Me ta ls Co mp an y.

April 1, 2002.