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

counsel for Elkem Metals Company and Globe Metallurgical Inc. in

CIT No. 01-00082, which has been consolidated herein, have filed

papers in opposition to the motion of Eletrosilex S/A for judgment

on the agency record.

2 Subsequent 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

- - - - - - - - - - - - - - - - - - - x

ELKEM 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

(William D. 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. Department of Commerce

(John F. Koeppen), of counsel, for the defendant. 

Dorsey & Whitney LLP (Philippe M. Bruno and Rosa S. Jeong) for

the intervenor-defendant2 and Eletrosilex S/A. 
Consolidated

Court No. 01-00098 Page 2

3 The above-encaptioned plaintiffs ("Elkem & Globe") were

granted leave to intervene as parties defendant in the first

matter, from which resultant adverse posture they interposed a

motion to dismiss Eletrosilex as a party with any actionable claim,

alleging lack of standing. That motion has been denied per the

court's slip opinion 02-34, 26 CIT , 196 F.Supp.2d 1367 (2002),

familiarity with which is presumed.

AQUILINO, 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 filed by Companhia

Brasileira Carbureto de Cálcio ("CBCC") and Eletrosilex 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 Metal

From Brazil; Final Results of Antidumping Duty Administrative Review and 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").3 In 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 Department determines that although CBCC has had zero or de minimis

dumping margins for the previous two review periods,

during the current review CBCC's weight-averaged dumping

margin is determined to be 0.63 percent, above the de

minimis rate . . . 0.50 percent . . .. Consequently,

CBCC has not made sales of subject merchandise "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

Court No. 01-00098 Page 3

4 Appendix 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 for "period of

review", "facts available", "less than fair value", and for the

respondent "Rima Industrial S.A.", respectively.

Id. at 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

Department applied adverse FA, the rate selected could

very well be the highest calculated rate in the proceeding, i.e., the 93.20 percent rate obtained in the LTFV

investigation. In 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 for 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 companies 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 sole
Consolidated

Court No. 01-00098 Page 4

thrust of the motion is that the agency failed to fulfill its

statutory obligation of calculating the cost of production ("COP")

and constructed value ("CV") based on the actual costs incurred by

the producer or exporter under investigation, which failure,

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

and exporter of the subject merchandise, based on the

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 plaintiffs 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 that 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 as
Consolidated

Court No. 01-00098 Page 5

without merit the agency's claimed established practice of using

such consolidated statements of a respondent's parent corporation,

rather than those of the respondent itself, whenever the record

establishes, prima facie, parental corporate control. The court

also was unable to find the requisite substantial evidence on the

record in support of that approach, whereupon it remanded

the calculation of CBCC's financial expenses with the

instruction that Commerce base those expenses upon the

consolidated financial statements of CBCC and its immediate parent Solvay do Brasil.

Id. at 245. The ITA complied with the court's order, and the

results of the remand on that issue were affirmed. See American

Silicon Technologies v. United States, 25 CIT , , Slip Op.

01-109, pp. 3-6 (Aug. 27, 2001).

By the time of that affirmance, the actions 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 . . . limited

Commerce's examination to CBCC's transactions with

Brasil. This order prevented Commerce from further

assessing the relationship between Brasil and Solvay or

CBCC and Solvay. This limit on the remand methodology

further inhibited Commerce's ability to ensure an

accurate assessment of CBCC's financial costs. As

Commerce notes on appeal, during the remand proceedings,

Commerce gathered more information about the relationship

between CBCC and Brasil, but not with regard to the

relationship between CBCC or Brasil and Solvay. Thus,
Consolidated

Court No. 01-00098 Page 6

5 This court notes in passing that, pursuant to the order 

of remand, American Silicon Technologies v. United States, 27 CIT

 , Slip Op. 03-109 (Aug. 25, 2003), the ITA has filed its

determination of 0.37 percent as the weighted-average margin for

CBCC for the particular period of review at issue. See Silicon

Metal from Brazil: Final Results of Redetermination Pursuant to

Court Remand, p. 6 (Dec. 15, 2003).

the record in the remand is deficient 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

actually prevented Commerce from undertaking a fully

balanced examination that might have produced more

accurate results.

Therefore, this court reverses and remands with

instructions to require Commerce to carry out its

statutory duty of accurately assessing "general costs"

. . ..

American Silicon Technologies v. United States, 334 F.3d 1033,

1038-39 (Fed.Cir. 2003). 

While the facts underlying that contested ITA administrative review are still sub judice5, 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 reasonable

methodology in the first place, but no such deference 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

Court No. 01-00098 Page 7

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 substantial evidence on the

record and otherwise in accordance with law.

2. Whether . . . 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 Eletrosilex was

supported by substantial evidence on the record and

otherwise in accordance with law.

4. Whether the Department properly corroborated the

total facts available 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 properly calculated CBCC's home-market imputed credit expense based

upon an established Brazilian commercial reference rate rather than

a higher rate based upon a CBCC loan that was due after only

several days. Defendant's Memorandum, p. 3. This formulation

apparently has been derived from that part of the controlling

Decision Memorandum that sets forth the ITA's determination to use

Brazil's Taxa Referencial ("TR") rate to calculate CBCC's imputed
Consolidated

Court No. 01-00098 Page 8

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.6 Be 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 TR is an appropriate surrogate rate for calculating Brazilian home-market 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 from Brazil; Final Results of Antidumping Duty Administrative

Review, 67 Fed.Reg. 6,488 (Feb. 12, 2002), which was published just

prior to that and the other briefs at bar and in which the

accompanying Issues and Decision Memorandum found that the TR is 

"the index for savings 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

Court No. 01-00098 Page 9

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 from

Brazil 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 failure to provide information

within the meaning of section 1677e(a) surely 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 . . . supplemental questionnaire".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.

A respondent 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 infer 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 of
Consolidated

Court No. 01-00098 Page 10

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 reasoning8 and reviewing

the record filed herein, such as it is, the court cannot concur

that the supplemental information requested was "critical"9. To be

sure, the agency's responsibility of prescribing mathematical margins of dumping is always a most daunting task. But, as indicated,

this consolidated case is not proceeding 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 Administrative Review, 63 Fed.Reg. 42,001, 42,007

(Aug. 6, 1998):

. . . In the past, Eletrosilex has demonstrated 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 follow that simply because Eletrosilex was

able to respond to prior questionnaires it was able to
Consolidated

Court No. 01-00098 Page 11

10 24 CIT at 624, 110 F.Supp.2d at 1002 (emphasis in original).

The excuses proffered by Eletrosilex herein are not dissimilar.

See, e.g., Brief in Support of [CBCC & Eletrosilex] Plaintiffs'

Rule 56.2 Motion, p. 31.

On their part, the gist of Elkem & Globe's motion to dismiss

Eletrosilex from 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

party and cannot participate in this appeal, as a matter

of law.

respond to the . . . questionnaires at issue here . . .

when viewed in light of Eletrosilex's notification to

Commerce that "it is undergoing top to bottom management

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 finding that

Eletrosilex failed 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

only a 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

Court No. 01-00098 Page 12

. . . [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

Eletrosilex decided 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

Eletrosilex was facing bankruptcy during the period in

question, the fact remains that it 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 any remand on the issue of Eletrosilex's ability to have

provided the requested supplemental information to the ITA. Presuming it can, the related question remains 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 1310, 1335 (1999). Stated

another way, an adverse-facts-available rate should be "a reasonably accurate 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

Court No. 01-00098 Page 13

11 26 CIT at , 240 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 opinion 02-123 in American Silicon

Technologies points out that the actual margins calculated for

Eletrosilex in other ITA administrative reviews fluctuated between

18.87 and 51.84 percent. Also, the 

highest calculated rates for the first through 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 this 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 that the 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

estimate 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 by the 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 therein
Consolidated

Court No. 01-00098 Page 14

12 American Silicon Technologies v. United States, 27 CIT 

 , , Slip Op. 03-144, p. 2 (Oct. 30, 2003).

13 The 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 fourth administrative review of the antidumping duty

order on silicon metal from Brazil, sub nom. American

Silicon Technologies v. United States, Consolidated Court

No. 97-02-00267[,12]

this court hereby grants the USCIT Rule 56.2 motion of CBCC and

Eletrosilex13 to 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 existing, 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 may have 45 days

herefrom within which to carry out this remand and to report 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