Slip Op. 02-18

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD K. EATON, JUDGE

__________________________________________

:

ELKEM METALS CO.; AMERICAN :

ALLOYS, INC.; APPLIED INDUSTRIAL :

MATERIALS CORP.; and CC METALS & :

ALLOYS, INC., :

:

Plaintiffs/Plaintiff-Intervenors, :

:

and :

:

GLOBE METALLURGICAL, INC., :

:

Plaintiff-Intervenor, :

:

v. : Consol. Court No. 99-10-00628

:

UNITED STATES OF AMERICA :

:

Defendant, :

:

and :

:

FERROATLANTICA DE VENEZUELA; :

GENERAL MOTORS CORP.; ASSOCIAÇÃO :

BRASILEIRA DOS PRODUCTORES DE :

FERROLIGAS E DE SILICO METALICO, :

et al.; and RONLY HOLDINGS, LTD., et al., :

:

Defendant-Intervenors. :

__________________________________________:

Plaintiffs, domestic producers of ferrosilicon, moved for judgment upon agency record in action

challenging United States International Trade Commission’s (“ITC”) reconsideration and

reversal of final affirmative material injury determination. Plaintiffs claimed: (1) ITC did not

possess authority to reconsider final affirmative material injury determination; and (2) if ITC

possessed such authority, the reconsideration proceedings were improperly conducted because,

among other reasons, ITC failed to hold hearing as provided in published procedures that were to

govern such proceedings. ITC and defendant-intervenors argued: (1) ITC had inherent authority
Consol. Court No. 99-10-00628 Page 2

to reconsider original final affirmative material injury determination; and (2) ITC’s

reconsideration proceedings were properly conducted, in that the ITC was not required to

conduct a hearing because Plaintiffs did not request one. The Court of International Trade,

Eaton, J., held: (1) ITC had authority to reconsider final affirmative material injury

determination; and (2) ITC failed to adhere to published procedures that were to govern its

reconsideration proceedings; and, therefore, reconsideration proceedings were conducted in a

manner not in accordance with law. 

[Case remanded to ITC for further action consistent with this opinion.] 

Decided: February 21, 2002

Verner, Liipfert, Bernhard, McPherson and Hand (William D. Kramer); Eckert Seamans

Cherin & Mellott, LLC (Dale Hershey and Mary K. Austin), for Plaintiff Elkem Metals

Company.

Doepken, Keevican & Weiss (Gordon W. Schmidt), for Plaintiff American Alloys, Inc.

Altheimer & Gray (Theodore J. Low), for Plaintiff Applied Industrial Materials

Corporation.

Arent Fox Kintner Plotkin & Kahn, PLLC (Stephen L. Gibson, George R. Kucik, and

Nada S. Sulaiman), for Plaintiff CC Metals and Alloys, Inc.

Dangel & Fine, LLP (Edward T. Dangel, III, Michael K. Mattchen, and Jonathan L.

Glover), for Plaintiff-Intervenor Globe Metallurgical, Inc.

Lyn M. Schlitt, General Counsel, United States International Trade Commission; James

M. Lyons, Deputy General Counsel, United States International Trade Commission (Marc A.

Bernstein), for Defendant.

Kaye, Scholer, Fierman, Hays & Handler, LLP (Julie C. Mendoza, Donald B. Cameron,

R. Will Planert, and Margaret E. Scicluna), for Defendant-Intervenor Ferroatlantica de

Venezuela.

Hogan & Hartson LLP (Mark S. McConnell and Jonathan J. Engler), for DefendantIntervenor General Motors Corporation.

Dorsey & Whitney LLP (Philippe M. Bruno and Kevin B. Bedell), for DefendantIntervenors Associação Brasileira dos Productores de Ferroligas e de Silico Metalico, Companhia

Brasileira Carbureto de Calcio-CBCC, Companhia de Ferroligas de Bahia-FERBASA, Nova Era

Silicon S/A, Italmagnesio S/A-Industria e Comercio, Rima Industrial S/A, and Companhia
Consol. 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, and

Venezuela, 64 Fed. Reg. 51,097, 51,097 (Sept. 21, 1999). 

Ferroligas Minas Gerais-Minasligas.

Aitken Irvin Berlin & Vrooman, LLP (Bruce Aitken and Virginie Lecaillon), for

Defendant-Intervenors Ronly Holdings, Ltd., Cheliubinski Electrometalurgical Works, Kuznetsk

Ferroalloy Works, Stakhanov Ferroalloy Works, and Zaporozhye Ferroalloy Works.

OPINION & ORDER

EATON, Judge: Before the court are the motions of plaintiffs Elkem Metals Company,

American Alloys, Inc., Applied Industrial Materials Corporation (“AIMCOR”), and CC Metals

and Alloys, Inc. (“CCMA”), and plaintiff-intervenor Globe Metallurgical, Inc. (“Globe”)

(collectively “Plaintiffs”), for judgment upon the agency record 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). For the

reasons set forth below, the court remands this case to the United States International Trade

Commission (“ITC”) for further action consistent with this opinion.

BACKGROUND

Plaintiffs challenge the ITC’s reconsideration and reversal of its final affirmative material

injury determinations in antidumping investigations Nos. 731-TA-566-570 and 731-TA-641

(Final) covering ferrosilicon1 from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela

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 International Trade Administration 

found that ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela was

being sold in the United States at less than fair value, and that the Venezuelan government was

subsidizing ferrosilicon sales, the ITC determined that such sales were causing material injury to

the ferrosilicon industry in the United States. It then issued the Final Determination, the

reconsideration and reversal of which is the subject of this dispute. Based on the Final

Determination, the United States Department of Commerce (“Commerce”) issued antidumping

orders against ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, and

a countervailing duty order against ferrosilicon from Venezuela. See Antidumping 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

Countervailing Duty Order for Certain Ferrosilicon From Venezuela, 58 Fed. Reg. 27,539 (May

10, 1993), amended by 58 Fed. Reg. 36,394 (July 7, 1993); Antidumping Duty Orders:

Ferrosilicon From Venezuela and the Russian Federation, 58 Fed. Reg. 34,243 (June 24, 1993);

Antidumping Duty Orders: Ferrosilicon From Kazakhstan and Ukraine, 58 Fed. Reg. 18,079

(Apr. 7, 1993), amended by 60 Fed. Reg. 64,018 (Dec. 13, 1995); Antidumping Duty Order:

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

The imposition of these orders remained unchallenged until 1998, when certain Brazilian

ferrosilicon producers petitioned the ITC to institute a review of the Final Determination relating

to ferrosilicon from that country. The petition alleged that a, then, recently disclosed price-fixing

conspiracy among some domestic manufacturers, and its consequent distortion of the price data
Consol. Court No. 99-10-00628 Page 5

presented to the ITC during its original material injury investigations, constituted “changed

circumstances” sufficient to warrant review pursuant to 19 U.S.C. § 1675(b). See Ferrosilicon

From Brazil, China, Kazakstan [sic], Russia, Ukraine, and Venezuela, 63 Fed. Reg. 27,747 (May

20, 1998). On July 28, 1998, the ITC instituted the requested changed circumstances review and,

further, self-initiated changed circumstances reviews of the other related final affirmative

material injury determinations—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 changed circumstances reviews and gave notice of

its intention to “reconsider” its Final Determination. See Ferrosilicon From Brazil, China,

Kazakhstan, 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 review of the original determinations”). The Notice stated:

The [ITC] . . . has suspended the [changed circumstances reviews]

and is instituting proceedings in which it will reconsider its [Final

Determination].

For further information concerning the conduct of this

reconsideration and rules of general application, consult the

Commission’s Rules of Practice and Procedure, 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.
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 from the changed

circumstances reviews would “be incorporated into the record of the[] reconsideration

proceedings” (“Reconsideration Proceedings”). In addition, the Notice stated:

Each Party can submit comments, including new factual

information . . . limited to the issues of (a) the price-fixing

conspiracy, or other anticompetitive conduct relating to the original

periods of investigation, and (b) any possible material

misrepresentations or material omissions, by any entity that

provided information or argument in the original investigations,

concerning: (1) the conspiracy or other anticompetitive conduct or

(2) any other matter. 

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

Thereafter, the ITC reversed and vacated its Final Determination, and issued a 

negative injury determination as to the original investigations. See Ferrosilicon From Brazil,

China, Kazakhstan, Russia, Ukraine, and Venezuela, 64 Fed. Reg. 47,865 (Sept. 1, 1999)

(“Reconsideration Determination”); see generally USITC Pub. 3218, at 1. As part of this

Reconsideration Determination, the ITC concluded that it need not examine whether the alleged

price-fixing conspiracy actually distorted the domestic ferrosilicon prices at issue in the original

investigations. See USITC Pub. 3218, at 23–24 (“[The ITC] cannot conclude what, if any, of the

representations made by the domestic producers on pricing and market conditions are sufficiently

credible to rely on. Consequently, in our reconsideration determinations we have taken adverse

inferences against these firms and used the facts otherwise available, as authorized by the statute

and case law.”).2 As a result, the ITC concluded that, during the period under review in the
Consol. Court No. 99-10-00628 Page 7

2

(...continued)

The discussion [here] demonstrates that . . . each [party] withheld

or misrepresented essential information directly relevant to the

Commission’s statutory mandate: whether the domestic industry is

materially injured by reason of subject imports. By such conduct,

these producers significantly impeded, undermined, and

compromised the integrity of the Commission’s investigations. 

The Commission’s governing statute provides that “whenever a

party . . . refuses or is unable to produce information requested in a

timely manner and in the form required, or otherwise significantly

impedes an investigation, [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 requested information . . .

.” 

See USITC Pub. 3218, at 21 (footnotes omitted). 

original investigations, the domestic ferrosilicon industry “in the United States [was] neither

materially injured nor threatened with material injury by reason of imports of ferrosilicon from

Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela that have been found by . . .

Commerce to be sold at less than fair value and imports of ferrosilicon that . . . Commerce has

found [were] subsidized by the Government of Venezuela.” See Ferrosilicon From Brazil,

Kazakhstan, People’s Republic of China, Russia, Ukraine, and Venezuela, 64 Fed. Reg. 51,097,

51,098 (Sept. 21, 1999); see also USITC Pub. 3218, at 4.

In accordance with the ITC’s Reconsideration Determination, Commerce “rescinded” the

antidumping and countervailing duty orders covering the subject imports. See Ferrosilicon From

Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine, and Venezuela, 64 Fed. Reg. at
Consol. Court No. 99-10-00628 Page 8

3 Excepted from these instructions were all entries of ferrosilicon from Venezuela, 

which were, and remain, the subject of a previously granted preliminary injunction. See

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

4 The separate suits against Commerce were also consolidated under Consol. Court

No. 99-10-00660. This action is stayed pending resolution of the merits of the case at bar.

51,098. In conjunction with this rescission, Commerce terminated all related 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 separate suits challenging the actions of the ITC, and

these suits were consolidated. This consolidated action is currently before the court,4 and in it 

Plaintiffs raise both procedural and substantive issues. At this time, however, the court need only

address two procedural issues: (1) whether the ITC had the authority to reconsider its Final

Determination; and (2) if the ITC possessed such authority, whether the Reconsideration

Proceedings were improperly conducted because, among other reasons, the ITC failed to hold a

hearing as provided for in the procedures that it published as those that would govern the

Reconsideration Proceedings.

The ITC and defendant-intervenors Ferroatlantica de Venezuela (“Ferroven”), General

Motors Corporation (“GM”), Associação Brasileira dos Productores de Ferroligas e de Silico

Metalico, Companhia Brasileira Carbureto de Calcio-CBCC, Companhia de Ferroligas de BahiaFERBASA, Nova Era Silicon S/A, Italmagnesio S/A-Industria e Comercio, Rima Industrial S/A,

and Companhia Ferroligas Minas Gerais-Minasligas; and Ronly Holdings, Ltd., Cheliubinski
Consol. Court No. 99-10-00628 Page 9

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

Zaporozhye Ferroalloy Works (collectively “Defendants”) argue that: (1) the ITC had the

inherent authority to reconsider its Final Determination; and (2) the Reconsideration Proceedings

were properly conducted, in that the ITC was not required to conduct a hearing because Plaintiffs

did not request one.

STANDARD OF REVIEW

The court, when reviewing final determinations made pursuant to 19 U.S.C. §

1516a(a)(2)(B)(ii), will hold unlawful those agency determinations, findings or conclusions that

are unsupported by substantial evidence on the record, or otherwise not in accordance with law. 

19 U.S.C. § 1516a(b)(1)(B)(i); see Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)

(“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent

an administrative agency’s finding from being supported by substantial evidence.” (citations

omitted)); Inland Steel Indus., Inc. v. United States, 188 F.3d 1349, 1359 (Fed. Cir. 1999);

Hoogovens Staal, BV v. United States, 24 CIT __, __, 86 F. Supp. 2d 1317, 1323 (2000) (“[I]n

reviewing agency determinations the court declines to reweigh or reinterpret the evidence of

record.” (citation omitted)); see also Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)

(“Substantial evidence is more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate 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 reconsider the Final Determination, two

questions need to be examined: first, does the ITC have the authority 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 years after such final determination was

rendered? 

As to the first question, Plaintiffs claim that the ITC did not have the authority to

reconsider the Final Determination, because the ITC is “‘entirely a creature of statute [and] [a]ny

authority delegated or granted to [it] . . . is necessarily limited to the terms of the delegating

statute.’” (CCMA’s Mem. Supp. Mot. J. Agency R. at 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, since “Congress[] fail[ed] to grant the ITC reconsideration

authority in antidumping investigations . . . affirmative injury determinations in antidumping

proceedings cannot be reconsidered by the ITC . . . .” (Id. at 9.) 

Defendants, on the other hand, argue that administrative agencies in general, and the ITC

in particular, have the inherent authority to institute reconsideration proceedings so as “to

vindicate the integrity of the administrative process.” (ITC’s Mem. Opp’n to Mot. J. Agency R.

at 13.) In addition, Defendants argue that the antidumping statute does not “preclude

reconsiderations under appropriate circumstances.” (Ferroven’s Mem. Opp’n to Mot. J. Agency
Consol. Court No. 99-10-00628 Page 11

R. at 13 (citation omitted).)

The court agrees with Defendants. It is indeed the general rule that federal agencies have

the power to reconsider their final determinations. Trujillo v. Gen. Elec. Co., 621 F.2d 1084,

1086 (10th Cir. 1980) (“Administrative agencies have an inherent authority to reconsider their

own decisions, since the power to decide in the first instance carries with it the power to

reconsider.” (citation omitted)); Prieto v. United States, 655 F. Supp. 1187, 1191 (D.D.C. 1987)

(“There can be no dispute that administrative agencies have inherent power to reconsider their

own decisions . . . .” (citations omitted)); accord Bookman v. United States, 453 F.2d 1263, 1265

(Ct. Cl. 1972) (“[I]t may be imperative for [agencies] to consider new developments or newly

discovered evidence in order to facilitate the orderly and 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)).

Plaintiffs contend, however, that this inherent authority to reconsider final decisions is

limited to adjudicative rather than investigatory agencies (CCMA’s Mem. Supp. Mot. J. Agency

R. at 10) and that because the ITC’s “proceedings are not ‘adjudicative[]’” it, therefore, “has no

‘equitable’ powers when acting in its investigative capacity.” Id. Indeed, in Grupo Indus.

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 ITC’s “hearing[s] to be

non-adjudicative in nature.” However, while the ITC is usually characterized as an investigatory

rather than an adjudicative agency, this court in later decisions has found that the ITC renders its
Consol. Court No. 99-10-00628 Page 12

5 Compare Pesquera Mares Australes Ltda. v. United States, 266 F.2d 1372 (Fed.

Cir. 2001) (“In short, Commerce’s antidumping determinations are ‘adjudication[s] that produce

. . . rulings for which deference [under Chevron] is claimed.’” (citation omitted)); but see Nippon

Steel Corp. v. United States, Slip Op. 01-154, at 6 n.4 (Dec. 31, 2001) (finding antidumping

proceedings investigative because their “basic core findings must be made without regard to the

claims of the parties, ex parte factual submissions are permitted, there is no administrative law

judge, and there is no formal record 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 proceedings in an

antidumping investigation or administrative review constitute a very strange creature in the

taxonomy of modern American administrative law. [Although] Congress has stated that such

proceedings are ‘investigatory’ rather than adjudicatory . . . the Court of International Trade . . .

has observed that in substance they are quasi-adjudicatory.” (citation omitted)).5 In fact, courts

have explicitly found the ITC to have the authority to reconsider its final determinations. See

Borlem S.A. – Empreedimentos Industriais v. United States, 913 F.2d 933, 938–39 (Fed. Cir.

1990) (finding Court of International Trade has the authority to order ITC, on remand, to

reconsider a prior determination where such decision was based on erroneous data); see also

Alberta Gas Chems., Ltd. v. Celanese Corp., 650 F.2d 9, 12–14 (2d Cir. 1981) (“This universally

accepted rule [that Federal Courts possess the authority to reconsider their final decisions] has

been applied to proceedings before federal administrative agencies. . . . We find no reason,

therefore, not to give the [ITC] the opportunity to resolve in the first instance the major issues in

this litigation.” (citation omitted)). A finding that the ITC has the authority to reconsider a final

determination is particularly appropriate where after-discovered fraud is alleged.6 See Alberta
Consol. Court No. 99-10-00628 Page 13

6

(...continued)

inherent power of federal courts to reconsider their final judgments, “there has existed . . . a rule

of equity to the effect that under certain circumstances, one of which is after-discovered fraud,

relief will be granted against judgments regardless of the term of their entry.” Although Hazel

dealt with a federal court’s inherent authority to reconsider final judgments Alberta Gas Chems.,

Ltd., extended this reasoning to cover federal agencies. Alberta Gas Chems., Ltd., 650 F.2d at

12–13 (“This universally accepted rule has been applied to federal agencies. . . . Under these

circumstances, it makes good sense to allow the [ITC] to determine initially whether there was

perjury and if there was, whether the perjury affected the result before the [ITC].”). 

Gas Chems., Ltd., 650 F.2d at 13 (“It is hard to imagine a clearer case for [the ITC] exercising

this inherent power than when a fraud has been perpetrated on the tribunal in its initial

proceeding.”).

Here, the Final Determination was predicated on, what the ITC later described as,

“serious material misrepresentations and omissions [Plaintiffs] made during the original

investigations on the key issue of ferrosilicon pricing.” (ITC’s Mem. Opp’n to Mot. J. Agency R.

at 5.) According to the ITC’s brief, during the changed circumstances reviews, it learned “that

individuals from the domestic ferrosilicon industry who provided information . . . in [the]

original investigations were either involved in or personally aware of the price-fixing conspiracy”

that overlapped a substantial portion of the original investigation period. (Id.) Since “[t]hese 

[individuals] testified and submitted information . . . asserting that the ferrosilicon market was

driven by intense price competition” (id.) it seems, therefore, to “make[] good sense,” see Alberta

Gas Chems., Ltd., 650 F.2d at 12, that the ITC examine whether the data relied on in making its

Final Determination was either false or misleading. Thus, the court finds that the ITC possessed
Consol. Court No. 99-10-00628 Page 14

7

In finding that the ITC had the authority to reconsider the Final Determination, the

court need not, and does not, make any findings with respect to the allegations of material

misrepresentations or omissions themselves.

the authority to reconsider the Final Determination.7

Having determined that the ITC had the power to reconsider its Final Determination, the

court addresses the question of whether too much time passed from the issuance of the Final

Determination to the date the ITC initiated its Reconsideration Proceedings. Plaintiffs argue that

the “ITC did not [conduct its Reconsideration Proceedings] within a reasonable time after it

knew or should have known of the [price-fixing conspiracy] convictions.” (CCMA’s Mem.

Supp. Mot. J. Agency R. at 16.) The ITC, 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 . . . .” (ITC’s Mem. Opp’n to Mot. J. Agency R. at 16.)

The question presented to the court, then, is whether the four and one-half year period of

time that elapsed between the Final Determination and commencement 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 reconsideration authority for an agency, however,

the general rule is that an agency has inherent authority to reconsider its decision, provided that

reconsideration occurs within a reasonable time after the first decision.” (citations omitted)). 

Under the facts presented here, the court finds that the Reconsideration Proceedings were held

within a reasonable time. In accordance with its statutes and its regulations, the ITC does not

monitor subsequent developments as they pertain to a particular final determination. After
Consol. Court No. 99-10-00628 Page 15

rendering a final affirmative determination, the ITC publishes its findings in the Federal Register

and communicates them to Commerce, which then issues an appropriate order. The ITC,

therefore, was under no obligation to monitor the domestic ferrosilicon industry subsequent to

rendering its Final Determination; nor is it reasonable to expect that the ITC should have done so

of its own accord. The statutory scheme governing an antidumping or countervailing duty final

affirmative determination provides, however, for various kinds of reviews—e.g., changed

circumstances reviews and five-year reviews—that allow interested parties to bring relevant

developments to the ITC’s attention. Thus, allegations of fraud, of the kind made here, would

necessarily come to the ITC’s attention, if at all, at a time somewhat remote from the original

investigations. Indeed, in this case, the evidence of the purported fraud came to light during the

course of changed circumstances reviews. See Ferrosilicon From Brazil, China, Kazakhstan,

Russia, Ukraine, and Venezuela, 63 Fed. Reg. at 40,314. Thereafter, the ITC acted promptly, by

suspending the changed circumstances reviews, and initiating the Reconsideration Proceedings. 

See Notice, 64 Fed. Reg. at 21,812. On this point the ITC has stated:

During the changed circumstances review, the Commission

received extensive information and argument regarding the pricefixing conspiracy and its implications for the Commission’s

determinations. After considering the information and argument,

the Commission determined that reconsideration was a more

appropriate procedure for review of the original determinations. . . .

Thus, on May 21, 1999, the Commission suspended the changed

circumstances review and instituted a reconsideration of the

original determinations. 

USITC Pub. 3218, at 5–6 (footnote omitted). Thus, the ITC took action soon after it possessed

information it believed substantiated the allegations concerning the price-fixing conspiracy. 

Therefore, even though the period of time that elapsed between the Final Determination and the
Consol. Court No. 99-10-00628 Page 16

commencement of the Reconsideration Proceedings was substantial, it was not unreasonable. 

II. Adherence to Procedures

In their briefs, Plaintiffs contend that, in deciding whether they were entitled to a hearing

during the course of the Reconsideration Proceedings, the court must address the issue of

whether the ITC violated their constitutional due process rights. In support of their contention,

Plaintiffs argue that due process required that they be granted an evidentiary hearing because “an

opportunity to be heard was central to the fact-finding process.” (Globe’s Mem. Supp. Mot. J.

Agency R. at 23.) And, that “[i]n taking the ‘extraordinary step’ of . . . instituting a

reconsideration proceeding . . . the ITC should have recognized that its inquiry had changed from

the conventional economic investigative ambit to [a] historical fact-finding [procedure.]” (Id. at

24.) Defendants, for their part, contend that Plaintiffs’ constitutionally protected interests were

not violated in the Reconsideration Proceedings, because “[a] prerequisite for due process

protection is [that Plaintiffs have] some interest worthy of protect[ion].” (GM’s Mem. Opp’n to

Mot. J. Agency R. at 23 (citation omitted).) 

While both Plaintiffs and the ITC couch their arguments, at least in part, in constitutional

terms, the issue of whether Plaintiffs’ constitutional due process rights were 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 . . . 

administrative reviews violated [Plaintiff]’s rights under the due process clause of the Fifth

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

Commerce’s statutory and regulatory notice obligations in connection with the administrative

reviews.” (citation omitted)); see also NEC Corp. v. United States, 21 CIT 933, 946, 978 F.

Supp. 314, 326–27 (1997) (quoting Norwegian Nitrogen Prods. Co. v. United States, 288 U.S.

294, 321 (1933)). The court, therefore, need not consider the proposed constitutional issues if

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 were

afforded a proceeding conducted in accordance with: (1) the provisions of the Notice; and (2) the

ITC’s governing law, and the regulations promulgated thereunder. NEC Corp., 21 CIT at 946,

978 F. Supp. at 326–27. 

As to Plaintiffs’ argument that the Reconsideration Proceedings were improperly

conducted because they were not afforded a hearing, Defendants argue that Plaintiffs “did not

request . . . any additional hearing during [the R]econsideration [P]roceeding[s]” and, therefore,

it was not required to conduct one. (ITC’s Mem. Opp’n to Mot. J. Agency R. at 5, 29.) In

support of its argument, the ITC relies 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 determination under section 1671d or 1673d of

this title.” 19 U.S.C. § 1677c(a)(1) (1988) (emphasis added). The statute cited by Defendants,

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 required to give notice to interested parties regarding

how the Reconsideration Proceedings would be conducted is well settled. See, e.g., Am. Lamb
Consol. 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 ITC’s action in these cases is unique and

there is no statutory provision which explicitly provides for the manner in which the Department

should rescind these orders. . . . In this instance, therefore, rescission of the[se] ferrosilicon

orders from the dates of issuance is the legal 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). It is equally well settled that once it gave

notice as to how the Reconsideration Proceedings would be conducted, the ITC was required to

actually conduct those proceedings in accordance therewith. See PPG Indus., Inc. v. United

States, 13 CIT 183, 190 n.4, 708 F. Supp. 1327, 1332 n.4 (1989) (“[A]n agency's failure to follow

its own rules and procedures is fatal to action.” (citation omitted)). In addition, the ITC was

obligated to notify interested parties of any change in the manner in which these proceedings

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 agency, 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 styled its proceedings as a reconsideration, it had no statutory or

regulatory guidance as to how the proceedings were to be conducted.8 (Oral Arg. Tr. 9/05/01, at

119.) Under these circumstances, it was not unreasonable for the ITC to rely on existing

regulations and, thus, it notified interested parties to look to “the Commission’s Rules of Practice

and Procedure, 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. By doing so, the ITC informed
Consol. Court No. 99-10-00628 Page 19

9 This is particularly significant as to Globe for, although Globe was party to the

proceedings leading to the Final Determination, it did not participate in the changed

circumstances reviews. Notice, 64 Fed. Reg. at 28,212; (see also ITC’s Mem. Opp’n to Mot. 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 investigation before

making a final determination . . . .” 19 C.F.R. § 207.23 (1993). Thus, the ITC 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, thereby creating an obligation on its part to provide such

hearing. See Mercer v. Dep’t of Health and Human 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. 

Instead, the ITC included in the record a January 22, 1993 hearing conducted in connection with

the original investigation leading to its Final Determination, see USITC Pub. 2606, App. B, and,

further, incorporated into the record a second hearing conducted on April 13, 1999, during the

changed circumstances reviews. (ITC’s Mem. Opp’n to Mot. J. Agency R. at 28.) Each hearing

was held before the ITC gave notice that it had suspended the changed circumstances reviews

and instituted the Reconsideration Proceedings.9 These hearings, however, were not sufficient to

fulfill the ITC’s commitments. Although the ITC may not have been required by statute to grant

a hearing during the course of the Reconsideration Proceedings, by directing interested parties 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

Reconsideration Proceedings in every particular in accordance with those regulations. Thus,

Plaintiffs were entitled not only to a hearing, they were also entitled to all of the other benefits of

the “Commission’s Rules of Practice and Procedure, 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-hearing briefing and post-hearing briefing. See 19 C.F.R.

§ 207.20(b) (“Upon receipt of notice from the administrating authority of an affirmative

preliminary determination [or] notice of an affirmative final determination . . . the Commission

shall publish in the Federal Register notice of its investigation to reach 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 prehearing brief.”); 19 C.F.R. § 207.23(a) 

(“The Commission shall hold a hearing concerning an investigation before making a final

determination . . . .”); 19 C.F.R. § 207.24 (“Any party may file a posthearing brief concerning the

information adduced at or after the hearing with the Secretary within a time specified in the

notice of investigation or by the presiding official at the hearing.”).

Finally, as to the ITC’s contention that it need not examine whether the alleged pricefixing conspiracy actually distorted the domestic ferrosilicon prices at issue in the original

investigations, should evidence with respect thereto be presented during the course of the further

proceedings on remand, the ITC 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 reasons set forth above, the court finds that, while the ITC had the authority to

reconsider its Final Determination, it failed to adhere to the procedures that it published as those

that would govern its Reconsideration Proceedings. The Reconsideration Proceedings were,

thus, conducted in a manner not in accordance with 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 later than

March 4, 2002. 

_______________________________

Richard K. Eaton, Judge

Dated: February 21, 2002

New York, New York
ERRATUM

Elkem Metals Co., et al. v. United States, et al., Consol. Court No. 99-10-00628, Slip-Op 02-18,

dated February 21, 2002.

Page 2: Counsel for Plaintiff Elkem should read as follows:

Verner, Liipfert, Bernhard, McPherson and Hand (William D. Kramer); Eckert

Seamans Cherin & Mellott, LLC (Dale Hershey and Mary K. Austin); Howrey, Simon, Arnold &

White (John W. Nields, Jr. and Laura W. Shores) for Plaintiff Elkem Metals Company.

April 1, 2002.