1 Samuel J. Waldon and Matthew T. West of Baker Botts LLP,

counsel for Elkem Metals Company and Globe Metallurgi cal Inc. in CIT No. 01-00082, which has been consol ida ted herein, have filed papers in opposition to the motion of Eletrosilex S/A for judgment on the agency record.

2 Sub sequent to the service of his motion papers herein , Philippe M. Bruno filed a notice of substitution of attorneys for this party by Greenberg Traurig, LLP. Slip Op. 04 - 36 UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - xELKEM METALS COMPANY and GLOBE METALLURGICAL INC., : Plaintiffs, :

v. : UNITED STATES, : Consolidated Court No. 01-00098 Defendant, :

-and- : COMPANHIA BRASILEIRA CARBURETO DE : CÁLCIO, :

Intervenor-Defendant. - - - - - - - - - - - - - - - - - - - x Memorandum & Order [Upon motion for relief from results of antidumping-duty administrative review, remand to International Trade Administration.] Decided: April 15, 2004 Verner, Liipfert, Bernhard, McPherson and Hand, Chartered ( WilliamD. Kramer , Jessie Marie Brooks and Virginia C. Dailey ) for the plaintiffs. 1 Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director, Commercial Litigation Branch, Civil Division, U .S. Department of Justice ( Reginald T. Blades, Jr .); and Office of Chief Counsel for Import Administration, U.S. Depar tment of Commerce ( John F. Koeppen ), of counsel, for the defendant. Dorsey& Whitney LLP ( Philippe M. Bruno and Rosa S. Jeong ) for the intervenor-defendant 2and Eletrosilex S/A.Consolidated

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3The above-encaptioned pla intiffs ("Elkem & Globe") were granted leave to intervene as parties defen dant in the first matter, from which resultant adverse posture theyi nterposed a motion to dismiss Eletrosilex as a party with any actionable claim, alleging lack of standing. That moti on ha s been denied per the court's slip opinion 02-34, 26 CIT , 196 F.Supp.2d 1367 (2002), familiarity with which is presumed.

AQUIL IN O, Judge: This case commenced pursuant to 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (B )(iii) and 28 U.S.C. §§ 1581(c) and 2631(c) consolidates complaints f iled b y Companhia Brasileira Carbureto de Cálcio ("CBCC") and Eletr osilex S/A, CIT No. 01-00082, and by Elkem Metals Company and Globe Metallurgical Inc., CIT No. 01-00098, each praying for relief from Silicon MetalFrom Brazil; Final Results of Antidumping Duty Administrative Reviewand Determination Not To Revoke in Part , 66 Fed.Reg. 11,256 (Feb. 23, 2001), promulgated by the International Trade Administration, U.S. Department of Commerce ("ITA"). 3In pertinent part, those Final Results were weighted average antidumping-duty margins of 0.63 percent for CBCC and 93.20 percent for Eletrosilex. See 66 Fed.Reg. at 11,257. The former led to the following reported rationale: After review of the record, the De partment determines that although CBCC has had zero or de minimis dumping margins for the previous two reviewperio ds, during the current review CBCC's weight-averaged dumping margin is determined to be 0.63 percent, ab ove th e de minimis rate . . . 0.50 percent . . .. Conse quently, CBCC has not made sales of subject mercha ndi se "at not less than NV for a period of at least three consecutive years" as required by the Department's regulations. Because one of the requirements to qualify for revocation has not been met, . . . we determine not to revoke this order with respect to CBCC.Consolidated

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4Appendix 8 to Brief in Opposition to Plaintiff Eletrosilex's Motion for Judgment Upon the Agency Record, p. 15. The references "POR", "FA", "LTFV", and "RIMA" are abbreviations f or "period of review", "facts availabl e", "l ess than fair value", and for the respondent "Rima Industrial S.A.", respectively. Id
. a t 11,256-57. The notice of the Final Results adopts the ITA's Issues and Decision Memorandum for discussion of the points pressed by the parties, including Eletrosilex. See id . at 11,256. That memorandum explains the margin for this exporter, in part, as follows: Eletrosilex, an experienced participant in the antidumping proceedings since the 1991-1992 POR[] was on notice as provided by the Department's past practice that if it failed to act to the best of its ability, and the Departmen t applied adverse FA, the rate selected could verywell be the highest calculated rate in the proceedi ng, i.e. , the 93.20 percent rate obtained in the LTFV investigation. I n determining the FA rate here, the Department considered the fact that, in the 1993-1994 and 1994-1995 PORs, [it] calculated dumping margins of 61.58 percent f or CBCC and 81.61 percent for RIMA, respectively, while at the same time, calculating zero or single digit rates for other respondents, demonstrating that in this particular market, some com panies may continue to dump at substantial margins while others have eliminated or substantially lowered their margins. The fact that these disparate rates have continued throughout the reviews since the original LTFV investigation, combined with [] Eletrosilex's failure to respond to the request for information, supports our conclusion that the 93.20 percent rate from the investigation remains reasonable and relevant. The Department's determination here is in accordance with [it]s policy of selecting the highest calculated rate in the entire proceeding in order to induce future cooperation of a respondent. 4

I The plaintiffs Elkem& Globe have interposed a motion for judgment upon the ITA record pursuant to USCIT Rule 56.2. The soleConsolidated

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thrust of the motion is that the agency fail ed to fulf ill its statutoryobligation of calculating the cost of production ("COP") and constructed value ("CV") based on the actual costs incurred by t he producer or exporter under investigation, which failu re , according to them, has given rise to the issue of whether the Department erred in calculating the financial expenses included in COP and CV for CBCC, the producer an d exporter of the subject merchandise, based on th e financial statements of its indirect Belgian parent, Solvay& Cie, when the actual financial costs incurred by CBCC greatly exceeded the financial costs calculated by the Department. Plaintiffs' Brief, p. 2.

The defendant and CBCC each accept this as the issue between them and the plai ntiffs for resolution. See Defendant's Memorandum, p. 2; Defendant-Intervenor's Brief in Opposition, p. 1. And each defends the ITA's approach on the basis of existing agency practice and case law. Their papers, understandably, cite and discuss the litigation sub nom . American Silicon Technologies v. United States , CIT No. 97-02-00267, one of a series of suits contesting the final results of ITA administrative reviews of the
same antidumping-duty order. The action bearing tha t CIT docket number entails judicial review of the ITA's reliance, in re CBCC,
on the consolidated financial statements of Solvay & Cie of Belgium, not Brazil. See , e . g ., American Silicon Technologies v. United States , 23 CIT 237, 244-45 (1999). That opinion rejected asConsolidated

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witho ut mer it the agency's claimed established practice of using suchconsolidated statements of a respondent's parent corporation, rather than those of the resp ondent itself, whenever the record establishes, prima facie , parental corporate cont rol. The court also was unable to find the requisite substantial evidence on the record in support of that approach, whereupon it remanded the ca lcul ation of CBCC's financial expenses with the instruction that Co mmerce base those expenses upon the consolidated financial statements of CBCC an d it s immediate parent Solvay do Brasil. Id
. at 245. The ITA complied with the court's order, and the
resu lts of the remand on that issue were affirmed. See Ame rica n Silicon Technologies v. United States , 25 CIT , , Slip Op. 01-109, pp. 3-6 (Aug. 27, 2001).

Bythe time of that affirmance, the a ctions comprising this consolidated case had commenced, and, a few months later, CBCC, a party to those prior proceedings, noticed a timely appeal from that affirmance that has resulted in the following decision, to quote from it in part:

. . . [T]he trial court . . . remand . . . l imited Commerce's examination to CBCC's transactions with Brasil. This order prevented C ommerce from further assessing the relationship between Brasil and Solvay or CBCC and Solv ay. This limit on the remand methodology further inhibited Commerce's ability to ensure an accurate assessment of CBCC's financi al costs. As Commerce notes on appeal, during the remand proceedings, Commerce gathered more information about the relationship between CBCC and Brasil , b ut not with regard to the relationship between CBCC or Brasil and Solvay. Thus,Consolidated

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5This court notes in passing that, p ursuan t to the order of remand, American Silicon Technologies v. United States , 27 CIT , Slip Op. 03-10 9 (Aug. 25, 2003), the ITA has filed its d etermi nation of 0.37 percent as the weighted-average margin for CBCC for the particular period of rev iew a t issue. See Silicon Metal from Brazil: Final Res ults of Redetermination Pursuant to Court Remand , p. 6 (Dec. 15, 2003). the record in the remand is defic ient because Commerce could not compare the consolidated statements of Solvay with the consolidated statements of Brasil. By sharply limiting Commerce's inquiry, the trial court's remand actuallyprevented Commerce from undertaking a fully balanced examination that might have produced more accurate results. Therefore, this court reverses and remands with instructions to requi re Commerce to carry out its statutoryduty of accurately assessing "general costs"

. . .. A merican Silicon Technologies v. United States , 334 F.3d 1033 , 1038-39 (Fed.Cir. 2003).

While the facts underlying that contested ITA administrative review are s t ill sub judice 5 , the issue posited above by the plaintiffs Elkem & Globe in this case has been resolved as a matter of law by the court of appeals adversely to their position, viz .:

As a legal matter, the Court of International Trade had an obligation to defer to Commerce's r easonable methodologyin the first place, but no suchdeference was afforded. Thus, according proper deference, Koyo Seiko Co. v. United States , 36 F.3d 1565, 1570, 1575 (Fed.Cir. 1994), this court sustains as reasonable Commerce's well established practice of basing interest expenses and income on fully consolidated financial statements.
Id
. at 1038. Hence, plaintiffs' motion for judgment upon the agency record must be, and it hereby is, denied.Consolidated

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II The motion of CBCC and Eletrosilex for such a judgment on their behalf propounds the following issues for the court's adjudication:
1. Whether .
. . Commerce's selection of the surrogate interest rate to calculate CBCC's imputed credit expense was supported by subs tantia l evidence on the record and otherwise in accordance with law. 2
. Whet her . . . Commerce's rejection of the interest rate based on CBCC's borrowing experience was supported by substantial evidence on the record and otherwise in accordance with law. 3. Whether the Department's use of adverse inference in applying total fact[s] available to Elet ro silex was supported by substantial evidence on the record a nd otherwise in accordance with law. 4. Whether the Department properly corroborated the total facts ava ilable applied to Eletrosilex as total facts available, in accordance with law.

A On its part, the defendant would compress the first two of these enumerated issues into one, namely, whether the ITA properlycal culated CBCC's home-market imputed credit expense based upon an established Brazilian commercial reference rate rather than
a higher rate based upon a CBCC l oan that was due after only several days. Defendant's Memorandum, p. 3. This formulation ap parentlyhas been derived from that part of the controlli n g Decision Memorandum that sets forth the ITA's determination to use Brazil's Taxa Referencial ("TR") rate to calculate CBCC's imputedConsolidated

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6 See Appendix 8 to Brief in Opposition to Plaintiff Eletrosilex's Motion for Judgment Upon the Agency Record, p. 19. home-market credit costs. 6Be that as it may, defendant's counsel eschew any defense now on this issue, requesting instead a remand to the ITA for reconsideration and to give this determination "full and fair consideration under the applicable law." Id . at 2.

CBCC welcomes this request, while the plaintiffs take the position that the TRis an appropriate surrogate rate for calculating Brazilian h ome-ma rket credit expenses when a respondent does not have short-term borrowings during the period under review. See Plaintiffs' Brief in Opposition to Defendant-Intervenor's Motion for Judgment passim
.

Having perused and carefully considered that entire brief, the court nonetheless concludes that defendant's remand request should be granted, in part in the light of the ITA's Silicon Metal fromBrazil; Final Results of Antidumping Duty Administrative Review , 67 Fed.Reg. 6,488 (Feb. 12, 2002), which was published just p rior t o that and the other briefs at bar and in which the accompanying Issues and Decision Memorandum found that the TR is "the index fo r s avings accounts" and therefore concluded that it
was "not reasonable to use the TR rate as a surrogate interest rate for short-term commercial borrowings". A-351-806, ARP 7/1/99- 6/30/00 (Feb. 12, 2002) (Comment 1), available at http://ia.ita.- doc.gov/frn/summary/2002feb.htm
.Consolidated

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7 Id . at 12 (emphasis added). See Defendant's Memorandum, p. 36. B

Given the protracted and continuing administrative and judicial proceedings centered on the ITA's antidumping-duty order governing imports into the United States of silicon metal fromBrazil and its administrative reviews thereof, the adverse inferences spelled out by Congress in 19 U.S.C. §1677e(b) and drawn by the agency and the courts upon fai lur e to provide information within the meaning of section 1677e(a ) sure ly have been, and continue to be, well-understood by all the parties there- and hereto. Indeed, experienced counsel do not claim otherwise.

All that is claimed by the government herein is that "Eletrosilex chose not to respond to the Department's . . . supplement al q uestionnaire". 7 However, as discussed in Mannesmannrohren-Werke AG v. United States , 23 CIT 826, 842, 77 F.Supp.2d 1302, 1316 (1999), for example, failing to respond does not have to be read negatively. Arespondent can fail to respond because it was not able to obtain the requested information, did not properly understand the question asked, or simply overlooked a particular request. Thus, without further explanation by Commerce, the Court will not infe r that a respondent's failure to respond constitutes substantial evidence that it failed to cooperate to the best of its ability.
That is, the agency must "articulate why it concluded that a party failed to act to the best of its ability, and explain why the absence of th[at] information is of significance to the progress ofConsolidated

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8 See supra , note 6, pp. 11-15.
9 Id . at 13. its investigation". 23 CIT at 839, 77 F.Supp.2d at 1313-14. See Nippon Steel Corp. v. United States , 337 F.3d 1373, 1382-83 (Fed. Cir. 2003).

Upon reading the ITA's reported reasoning 8and reviewing the record filed herein, su ch as it is, the court cannot concur that the supplemental information requested was "critical" 9 . To be sure, the agency's responsibilityof prescribing mathematical margins of dumping is always a most daunting task. But, as indicated, this consolidated case is not p roceeding on an empty slate. For example, in American Silicon Technologies v. United States , 24 CIT 612, 624, 110 F.Supp.2d 992 , 1002 (2000), both the ITA and the court seemingly recognized "Eletrosilex's history of compliance". See , e . g ., Silicon Metal From Brazil: Preliminary Results of Antidumping Duty Admi nistra tive Review , 63 Fed.Reg. 42,001, 42,007 (Aug. 6, 1998):

. . . In the past, Eletrosilex has de monstr ated an understanding for requests of additional information by the Department. In fact, that history led the court to opine that it actually supports the claim that Eletrosilex was unable to respond to the no-less-than-three supplemental agency requests for information at issue. See 24 CIT at 624, 110 F.Supp.2d at 1002. That is, it does not follo w that simply because Eletrosilex was a ble to respond to prior questionnaires it was able toConsolidated

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10 24 CIT at 624, 110 F.Supp.2d at 1002 (emphasis in original). The excuses proffered by Eletrosilex herein are not dis similar. See , e . g ., Brief in Support of [CBCC & Eletr osilex] Plaintiffs' Rule 56.2 Motion, p. 31. On their part, the gist of Elkem & Globe's motion to dismiss Ele tro silexfrom this consolidated case for lack of standing was that it
no longer manufactures, produces or exports silicon metal. Thus, pursuant to the plain language of . . . 19 U.S.C. § 1516a . . ., Eletrosilex is not an interested partyand cannot participate in this appeal, as a matter of law. respond to the . . . questionnaires at issue here . . . when viewed in light of Eletro sile x's notification to Commerce that "it is undergoing top to bottommanagement reviews, and because of changes in staffing, it is not able to respond in a timely manner". 10 In sum, the court concluded:

Commerce has not made the necessary f indi ng that Eletrosilexfailed to respond to the best of its ability
. After reviewing Commerce's reasoning, the Court concludes that the primary basis for its determination was the mere fact that Eletrosilex failed to respond to the two supplemental questionnaires. As previously noted in Borden [ , Inc. v. United States , 22 CIT 233, 4 F.Supp.2d 1221 (1998),] and Mannesmannrohren-Werke, supra , this is onlya recitation of the standard for the application of facts available under 19 U.S.C. § 1677e(a)(2)(B) and is inadequate justification for making an adverse inference pursuant to 19 U.S.C. § 1677e(b). Accordingly, the Court remands this issue for reconsideration and instructs Commerce to reopen the administrative record and collect additional evidence concerning Eletrosilex's claimed inability to respond to the supplemental questionnaires. 24 CIT at 625, 110 F.Supp.2d at 1003 (emphasis in original).

After this remand (and commencement of this consolidated case), the court was able to find substantial evidence developed on the record in support of the ITA's approach:Consolidated

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. . . [T]he reason Eletrosilex could not answer Commerce's supplemental questionnaires was because it dedicated the personnel capable of answering those questions to preparing information requested by Eletrosilex's potential purchaser. . . . The record shows that Eletrosilexdecided to suspend certain operations, including participation in antidumping proceedings, during the period in question in order to curtail costs in anticipation of the sale of the company. . . . While Eletrosilexwas facing bankruptcyd uring the period in question, the fact remains that i t allocated its resources toward satisfying the requests of the prospective purchaser rather than Commerce. American Silicon Technologies v. United States , 26 CIT , , 240 F.Supp.2d 1306, 1311 (2002). C

Given this overlap of cases and related claims, the question arises as to whether or not this court can assume similar results of anyremand on the issue of Eletrosilex's ability to haveprovided the requested supplemental information to the ITA. Presuming it can, the related question remai ns whether the 93.20 percent margin sought to be imposed is "relevant, and not outdated, or lacking a rational relationship". Ferro Union, Inc. v. United States , 23 CIT 178, 205, 44 F.Supp.2d 131 0, 1335 (1999). Statedanother way, an adverse-facts-available rate should be "a reasonablyaccurate estimate of the respondent's actual rate, albeit with
some built-in increase intended as a deterrent to non-compliance." F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States , 216 F.3d 1027, 1032 (Fed.Cir. 2000). Accord : Ta Chen Stainless Steel Pipe, Inc. v. United States , 298 F.3d 1330, 1340 (Fed.Cir. 2002).Consolidated

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11 26 CIT at , 2 40 F.Supp .2d at 1213-14. Cf . Reply of Plaintiffs [CBCC & Eletrosilex] in Support of Their Motion for Judgment Upon the Agency Record, pp. 6-8.

The court's slip opin i on 02-123 in American Silicon Technol og ies points out that the actual margins calculated for Eletrosilexin other ITAadministrative reviews fluctuated between 18.87 and 51.84 percent. Also, the highest calculated rates for the first th rough fifth administrative reviews were 53.63 percent, 51.84 percent,61.58 percent, 67.93 percent, and 39.00 percent respectively. . . . The Court also finds it significant that the period of review in question began six years after the Less Than Fair Value Investigation in which the 93.20 percent margin was calculated. This fact along with the fact that th is margin is 25.27 percent higher than the highest margin calculated based on actual information in the intervening administrative reviews ( i.e . the 67.93 percent margin calculated in the fourth administrative review) leads the Court to conclude t hat th e 93.20 percent margin is inconsistent with actual commercial practices at and around the time in question . . . [and] is so far removed from being "a reasonably accurate estim at e of the respondent's actual rate" that it is disproportionately punitive in nature. 11
Whereupon that matter was remanded a second time to the ITA, which thereafter duly reported a revised rate of 67.93 percent that has been affirmed bythe court, American Silicon Technologies v. United States , 27 CIT , 273 F.Supp.2d 1342 (2003).

III
While the court in that case has since stayed the judgment of affirmance thereinConsolidated

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12 American Silicon Technologies v. U ni ted States , 27 CIT

, , Slip Op. 03-144, p. 2 (Oct. 30, 2003).
13The quality of the papers filed in support of and opposition to this motion and the motion of the plaintiffs obviated any need to grant their joint motion for oral argument. pending the final determination of the dumping margins in the fourthadministrative reviewof the antidumping duty order on silicon metal fromBra zil, sub nom. American Silicon Technologies v. United States , Consolidated Court No. 97-02-00267[, 12 ] thi s cou rt hereby grants the USCIT Rule 56.2 motion of CBCC and Eletrosilex 13to the extent of remand now to the defendant of this consolidated case to impute anew (1 ) CBCC's home-market credit costs and (2) Eletrosilex's margin of dumping for the period of review implicated that is in accordance with law and supported by substantial evidence on the record.

Should this remand at this time not be in the interests of advancement of all of the ex ist ing, related Brazilian silicon metal matters to final resolution, the parties to this particular consolidated case may confer and propose to this court a mutuallymore-desirable schedule. Otherwise, the defendant mayhave 45 days herefromwithin which to carry out this remand and to r eport the results thereof to the court and the other parties, which may then comment thereon within 30 days of receipt thereof.

So ordered. Decided: New York, New York April 15, 2004 Thomas J. Aquilino, Jr. Judge