                                  SLIP OP. 08-105

              UNITED STATES COURT OF INTERNATIONAL TRADE
_____________________________________
                                           :
GLOBE METALLURGICAL, INC.,                 :
                                           :
                    Plaintiff,             :
            v.                             : Before: Jane A. Restani, Chief Judge
                                           :
UNITED STATES,                             : Consol. Court No. 07-00386
                                           :
                    Defendant,             : Public Version
                                           :
            and                            :
                                           :
DATONG JINNENG INDUSTRIAL                  :
SILICON CO., INC., JIANGXI                 :
GANGYUAN SILICON INDUSTRY                  :
COMPANY, LTD., and SHANGHAI                :
JINNENG INTERNATIONAL TRADE                :
CO., LTD.,                                 :
                                           :
                    Defendant-Intervenors. :
_____________________________________:

                                          OPINION

[Plaintiff’s motion for judgment on the agency record granted in part; Defendant-Intervenors’
motion for judgment on the agency record denied.]

                                                                         Dated: October 1, 2008

              DLA Piper US LLP (William D. Kramer, Clifford E. Stevens, Jr., Jack A. Levy,
and Martin Schaefermeier) for the plaintiff.

              Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Loren M. Preheim); William J. Kovatch, Jr. and Aaron Kleiner, Office of
the Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel, for the
defendant.

               Mayer Brown LLP (Duane W. Layton, Kristy L. Balsanek, and Sydney H.
Mintzer) for the defendant-intervenors.
Consol. Court No. 07-00386                                                                 Page 2


               Restani, Chief Judge: This matter is before the court on plaintiff Globe

Metallurgical, Inc.’s (“Globe”) and defendant-intervenors Datong Jinneng Industrial Silicon Co.,

Inc., Jiangxi Gangyuan Silicon Industry Company, Ltd., and Shanghai Jinneng International

Trade Co., Ltd.’s (“Defendant-Intervenors”) motions for judgment upon the agency record

pursuant to USCIT Rule 56.2. Plaintiff, a domestic producer of silicon metal, challenges the

United States Department of Commerce’s (“Commerce”) final determination made in the new

shipper reviews of the antidumping duty order on silicon metal from the People’s Republic of

China (“PRC”). See Silicon Metal from the People’s Republic of China: Notice of Final Results

of 2005/2006 New Shipper Reviews, 72 Fed. Reg. 58,641 (Oct. 16, 2007) (“Final Results”). For

the reasons stated below, the court sustains Commerce’s final determination in part and denies it

in part and therefore, Globe’s motion for judgment on the agency record is granted in part and

denied in part and and Defendant-Intervenors’ motion for judgment on the agency record is

denied.

                                       BACKGROUND

               Commerce initiated new shipper reviews of Defendant-Intervenors for the June 1,

2005 through May 31, 2006 period of review (“POR”) of the Antidumping Duty Order: Silicon

Metal From the People’s Republic of China, 56 Fed. Reg. 26,649 (June 10, 1991).1 See Silicon

Metal From the People’s Republic of China: Initiation of Antidumping Duty New Shipper


          1
         Silicon metal is produced by combining high purity quartz in a “charge” with a source
of carbon and a bulking agent in a submerged arc electric furnace. (Pl.’s Br. in Supp. of Mot. for
J. Upon the Agency R. 6 (“Globe’s Br.”); App. to Pl.’s Br. in Supp. of Mot. for J. Upon the
Agency R. Tab 6, at Ex. 3 (“Globe’s App.”).) The materials are heated at a high temperature and
carbon monoxide is released, leaving molten silicon. (Globe’s Br. 6–7; Globe’s App. Tab 6, at
Ex. 3.)
Consol. Court No. 07-00386                                                                  Page 3


Reviews, 71 Fed. Reg. 42,084, 42,085 (July 25, 2006). On October 16, 2007, Commerce

published the final results of the new shipper reviews. See Final Results, 72 Fed. Reg. at 58,641.

Commerce considered the PRC a nonmarket economy (“NME”) country2 for the purpose of

these reviews. Accordingly, it calculated normal value3 pursuant to 19 U.S.C. § 1677b(c), which

requires Commerce to collect data regarding the NME producer’s factors of production4 (“FOP”)

and value them in relation to the prices or costs of the FOP for the subject merchandise produced

in one or more surrogate market economy countries. See 19 U.S.C. § 1677b(c) (2000).

Commerce selected India as its surrogate country for valuing the FOP for Chinese silicon metal,

concluding that although India and Egypt were both significant producers of merchandise

comparable to silicon metal, the data provided for India constituted the best available

information. Issues and Decision Memorandum for the Final Results of 2004/2006 Antidumping

Duty New Shipper Reviews of Silicon Metal from the People’s Republic of China, A-570-806,

POR 6/01/05-5/31/06, at 8–9 (Oct. 9, 2007), available at

http://ia.ita.doc.gov/frn/summary/PRC/E7-20344-1.pdf (“Issues and Decision Memorandum”).

Commerce also found that data from the International Energy Agency (“IEA”) and the World


       2
         A NME country is “any foreign country that [Commerce] determines does not operate
on market principles of cost or pricing structures, so that sales of merchandise in such country do
not reflect the fair value of the merchandise.” 19 U.S.C. § 1677(18)(A) (2000).
       3
        Normal value is compared with the United States’ price to determine whether the sales
are made at less than fair value and thus, whether offsetting duties will be imposed, and in what
amount. 19 U.S.C. §§ 1677a, 1677b(a).
       4
         The factors of production used in the manufacturing of merchandise “include, but are
not limited to [the] (a) hours of labor required, (b) quantities of raw materials employed, (c)
amounts of energy and other utilities consumed, and (d) representative capital cost, including
depreciation.” 19 U.S.C. § 1677b(c)(3).
Consol. Court No. 07-00386                                                                      Page 4


Trade Atlas (“WTA”) provided the best information on the record for valuing electricity and

silica fume, respectively, as the alternatives proffered were not reliable. Id. at 11–12, 25.

Commerce further determined that the quartz consumed was properly classified as Grade I

quartz, as the silicon dioxide and impurity levels matched those provided in the Grade I category

of the Indian Bureau of Mines’ Minerals Yearbook (“IBM Yearbook”) for 2005. Id. at 20.

                       JURISDICTION AND STANDARD OF REVIEW

               The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold

Commerce’s final determination in an antidumping investigation unless it is “unsupported by

substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i).

                                          DISCUSSION

I.     Selection of India as a Surrogate Country

               “[T]he valuation of the [FOP] shall be based on the best available information

regarding the values of such factors in a market economy country or countries considered to be

appropriate by [Commerce].” 19 U.S.C. § 1677b(c)(1). When applying the FOP methodology,

Commerce selects surrogate values from market economy countries that are “at a level of

economic development comparable to that of the [NME] country” and have “significant

producers of comparable merchandise.” 19 U.S.C. § 1677b(c)(4). Commerce normally selects a

single surrogate country to value all factors, see 19 C.F.R. § 351.408(c)(2), preferring to use “the

country with the best factors data,” Import Administration Policy Bulletin 04.1: Non-Market

Economy Surrogate Country Selection Process at *4 (March 1, 2004), available at

http://ia.ita.doc.gov/policy/bull04-1.html (“Policy Bulletin”).
Consol. Court No. 07-00386                                                                   Page 5


                In selecting India as the surrogate country, Commerce determined that both India

and Egypt were at a level of economic development similar to that of the PRC. Issues and

Decision Memorandum at 8. Commerce considered ferrosilicon and other ferroalloys

merchandise comparable to silicon metal and determined that India and Egypt were significant

producers of both comparable products. Id. at 8–9. Commerce concluded that production levels

of ferrosilicon in India have consistently remained at the same historical levels and have matched

Egypt’s ferrosilicon production in recent years. Id. Commerce also noted that India’s status as a

net importer of ferrosilicon “d[id] not disqualify it from also being considered as a significant

producer of that merchandise as well.” Id.

                Commerce then evaluated and compared the quality of Indian and Egyptian data

for ferrosilicon and other ferroalloy production and concluded that there were many deficiencies

in the data available from Egypt. Id. Commerce emphasized the importance of using data that

included “investigation or review period-wide price averages, prices specific to the input in

question, prices that are net of taxes and import duties, prices that are contemporaneous with the

period of investigation or review, and publicly available data.” Policy Bulletin at *4; see also

Union Camp Corp. v. United States, 941 F. Supp. 108, 116 (CIT 1996). In rejecting Egypt as a

surrogate, Commerce found that the record included no Egyptian value for charcoal and only a

single price quote for the Egyptian value of both quartz and electricity. Issues and Decision

Memorandum at 9. Commerce also determined that the Indian data were more contemporaneous

because they corresponded to the POR, while the Egyptian data were based on 2005 annual

import statistics. Id. at 9.
Consol. Court No. 07-00386                                                                    Page 6


                Defendant-Intervenors argue that Commerce should have first considered whether

India or Egypt produced comparable products to Chinese silicon metal before evaluating each

country’s economic development relative to the PRC. (Def.-Intervenors’ Rule 56.2 Mot. for J.

Upon the Agency R. & Mem. in Supp. Thereof 30–32 (“Def.-Intervenors’ Br.”)); see Policy

Bulletin at *4. Defendant-Intervenors maintain that “comparable merchandise should be

identified narrowly,” and that Commerce should have selected only ferrosilicon as a product

comparable to silicon metal, and not other ferroalloys, which cover a much broader range of

products. (Def.-Intervenors’ Br. 27–29 (quoting Policy Bulletin at *3).) In particular,

Defendant-Intervenors maintain that India cannot be considered a competitive producer of

ferrosilicon because of the relative scarcity of electricity, an important requirement for

production. (Id. at 32–33.) While Defendant-Intervenors acknowledge that the record does not

contain contemporaneous Egyptian data for charcoal and that only a single price quote was

submitted for Egyptian quartz, they maintain that when compared to electricity, the role of

charcoal and quartz in the production process of silicon metal is relatively small. (Id. at 37–38.)

In the alternative, Defendant-Intervenors argue that if the Indian data for charcoal and quartz

values are found to be superior to the Egyptian data, then Commerce should utilize data from

multiple surrogate countries in constructing the normal value of silicon metal because of the

unsuitability of Indian electricity data. (Id. at 38.)

                The “process of constructing foreign market value for a producer in a [NME]

country is difficult and necessarily imprecise,” Nation Ford Chem. Co. v. United States, 166

F.3d 1373, 1377 (Fed. Cir. 1999) (citation and quotations omitted), and Defendant-Intervenors

have not demonstrated that Commerce’s decision to use India as a surrogate country should be
Consol. Court No. 07-00386                                                                        Page 7


rejected. Commerce evaluated the data on the record and found that both India and Egypt were

comparable market economies to the PRC and significant producers of merchandise comparable

to silicon metal. Issues and Decision Memorandum at 9.

               It is undisputed that silicon metal and ferrosilicon are comparable merchandise. It

is unnecessary to address whether the broad category of ferroalloys is comparable. Substantial

evidence supports the conclusion that India produces the narrower category of comparable

merchandise, i.e. ferrosilicon. That being the case, Commerce acted reasonably in turning its

attention to the quality of the available data from India and Egypt. Commerce selected India as

the surrogate country because the quality of the data on the record regarding the valuation of the

FOP for silicon metal in India was superior to that supplied for Egypt.

               Further, Commerce was not required to find that India was a competitive producer

of ferrosilicon before selecting it, as the statutory standard requires only that the surrogate

country be a “significant” producer of comparable merchandise, which Commerce found both

Egypt and India to be. See 19 U.S.C. § 1677b(c)(4). While Defendant-Intervenors contend that

India cannot be considered a significant producer of ferrosilicon because of a decline in

production due to high energy costs, Commerce determined that Indian ferrosilicon production

was at 50,000 MT or more from 1998 through 2004, which Commerce concluded was “at least

as high as Egyptian ferrosilicon production in the most recent years for which data is available

for both countries.” Issues and Decision Memorandum at 8–9. Thus, Commerce’s significance

finding was supported.

               For the reasons stated above, the court finds that Commerce acted well within its

discretion in determining that India was a proper surrogate country to use in computing the
Consol. Court No. 07-00386                                                                     Page 8


normal value of silicon metal and based its decision on substantial evidence.

II.      Valuation of Factors of Production

                To approximate the normal value of the subject merchandise in NME countries,

“Commerce solicits information from respondents concerning the quantities of various inputs

consumed in producing the subject merchandise, and then uses surrogate values from a similar,

market economy country to value those inputs.” Tianjin Magnesium Int’l Co. v. United States,

533 F. Supp. 2d 1327, 1334 (CIT 2008). Commerce is required to use the “best available

information” when valuing the FOP, based on publicly available information from a market

economy of comparable economic development. 19 U.S.C. § 1677b(c)(1); 19 C.F.R. § 351.408.

Commerce has “broad discretion to determine the ‘best available information’ in a reasonable

manner on a case-by-case basis.” Timken Co. v. United States, 166 F. Supp. 2d 608, 616 (CIT

2001).

         A. Electricity

                Commerce used data from the IEA to value electricity as a FOP in its final

decision, because it was publicly available information and specific to the input in question.

Issues and Decision Memorandum at 11. The IEA rate of approximately $0.10/KwH was found

to be within the range of national electricity rates of nineteen ferrosilicon-producing countries

cited by Defendant-Intervenors. Id. Commerce determined that the rate was not “unreliable

simply because it differs from other countries’ electricity rates,” noting that because electricity is

not a traded good, prices vary significantly among countries. Id. at 12 (citation omitted).

Commerce also highlighted that the IEA electricity rate was used in other recent electricity-

intensive cases. Id. Commerce also found insufficient evidence to prove that cross-subsidies
Consol. Court No. 07-00386                                                                      Page 9


distort industrial electricity rates, citing the same IEA report submitted by Defendant-

Intervenors, which showed that “if subsidies were removed, Indian industrial electricity rates

would not materially change.” Id.

               Defendant-Intervenors argue that although the IEA rate is within the range of

rates of nineteen other ferrosilicon-producing countries, the rate is higher than all but one of

those electricity rates. (Def.-Intervenors’ Br. 21; App. to Mem. of Law in Supp. of Def.-

Intervenors’ Mot. for J. upon the Agency R. Tab K, at Ex. 1 (“Def.-Intervenors’ App.”).)

Defendant-Intervenors contend that the price of industrial electricity in India is distorted by

government subsidies, whereby industrial electricity consumers are charged a higher rate in

order to subsidize the lower rate paid by agricultural and residential electricity consumers.

(Def.-Intervenors’ Br. 13–15 (citing Gov’t of India Planning Comm’n, Integrated Energy Report:

Report of the Expert Committee, at 79 (Aug. 2006), available at

http://planningcommission.nic.in/reports/genrep/rep_intengy.pdf). Defendant-Intervenors

maintain that, as a result, the electricity rates are not reflective of the market-based price that

would exist absent government intervention and submitted instead an Egyptian electricity rate of

$0.022/KwH, which their agent received after soliciting a price quote from the Egyptian

Ministry of Electricity. (See id. at 15, 25; Def.-Intervenors’ App. Tab B, at Ex. 12, Tab L.)

               “While accuracy is a touchstone, Commerce often finds that it has to choose

between two (or more) sub-optimal data sources” and Commerce’s resulting decision will be

upheld if supported by substantial evidence. Dorbest Ltd. v. United States, 462 F. Supp. 2d

1262, 1275 (CIT 2006). When there is a publicly available and valid rate for a FOP from the

chosen surrogate country, Commerce’s normal practice is to value all factors from the same
Consol. Court No. 07-00386                                                                    Page 10


surrogate country. See 19 C.F.R. § 351.408(c)(2). Although India subsidizes electricity prices

for agricultural and residential consumers, Defendant-Intervenors failed to submit any evidence

demonstrating that this inflates Indian industrial electricity rates. Issues and Decision

Memorandum at 12. Only a single solicited price quote for electricity in Egypt is on the record.

No other substantial data regarding electricity rates in Egypt has been submitted on the record.

Commerce is not required to choose such a single price quote where other more broadly-based

public information is available and is not shown to be unusable.5

                 In the alternative, Defendant-Intervenors suggest using the rate of $0.048/KwH,

which represents an average of the country-wide rates in the nineteen countries from the IEA

survey. (Def.-Intervenors’ Br. 25–26.) This average electricity rate, however, encompasses

values from countries, including the United States and Australia, that are at a different level of

economic development than the PRC. Issues and Decision Memorandum at 12. Commerce’s

reasonable preference is to use surrogate values from countries at a level of economic

development similar to that of the NME country in question. Id.; see also 19 U.S.C.

§ 1677b(c)(4)(A).

                 For the reasons stated above, Commerce did not err in determining that the Indian

industrial electricity rates constituted the best available information for valuing the electricity

input and its determination in that regard is supported by substantial evidence.6


       5
         It is obvious that there are flaws in each approach to valuing electricity. Defendant-
Intervenors have not made a claim that Commerce’s investigation was inadequate in this regard.
Thus, a selection of an electricity value must be made from the data available.
       6
           The parties submitted supplemental filings requested by the court concerning how
                                                                                     (continued...)
Consol. Court No. 07-00386                                                                     Page 11


       B. Silica Fume

               Silica fume, a by-product7 created during the production of silicon metal,8 does

not have a specific subheading under the Indian Harmonized Tariff Schedule and is covered by

the basket tariff subheading for all forms of silicon dioxide. Issues and Decision Memorandum

at 24–25; (Globe’s App. Tab 7, at Ex. 13). Commerce used an average unit value (“AUV”) of

silicon dioxide from WTA Indian import data to calculate the normal value of silica fume.

Issues and Decision Memorandum at 24–25.

               Globe argues that Commerce has established a practice of selecting surrogate

values that are as product-specific as possible, and that the WTA data is overinclusive because it

includes imports from countries where silica fume is not the primary form of silicon dioxide.

(Globe’s Br. 11.) Globe contends that the inclusion of higher-priced types of silicon dioxide

inflates the normal value of silica fume, resulting in a price that does not reflect the type of silica



       6
         (...continued)
Indian producers obtain the electricity needed to produce ferrosilicon. While the data provided
are not entirely clear, at least one report cited by all parties indicates that six of the fourteen
Indian ferrosilicon producers who reported their 2001 production capacity to the Indian Bureau
of Mines “have developed or are developing captive power.” (Def.-Intervenors’ App. Tab B, at
Ex. 5.) There is little information provided as to how the remaining producers obtain their
electricity, but the report indicates that some producers’ electricity is purchased from an
instrumentality of the Indian government. (Id.)
       7
        The value of a by-product is subtracted in the normal value calculation. Thus, a lower
by-product valuation will raise normal value and lead to higher duties, as sought by Globe, the
domestic party.
       8
         Silica fume is formed when fine particles of silicon dioxide and impurities that escape
from the furnace during the production of silicon metal combine with the gas generated by the
chemical reaction. (Globe’s Br. 7; Globe’s App. Tab 6, at Ex. 3.) It is then filtered and sold as
an additive in concrete and certain heat-resistant brick to offset the cost of silicon metal
production. (Globe’s Br. 7–8; Globe’s App. Tab 6, at Ex. 3.)
Consol. Court No. 07-00386                                                                    Page 12


fume sold in India during the POR. (Id. at 10.) Globe also maintains that the relatively high

price of silica fume is at odds with its status as a by-product because the total sales value of silica

fume under the basket tariff category was “anything but small in relation to the value of

[Defendant-Intervenors’] main product, silicon metal.” (Id. at 21.) Globe submitted evidence

showing a lower price during the POR for silica fume in India including an affidavit from an

American silica fume seller listing its prices of silica fume in India during the POR, WTA data

on the AUV of silicon dioxide imports into India during the POR from countries that generate

silica fume, Infodrive India data on the value of silica fume imports during the POR, sales

invoices for silica fume sold in India by Norwegian producer Elkem, and prices for suppliers of

silica fume in India provided by an Indian silica fume expert. (Id. at 10.)

               Globe argues that the WTA data used by Commerce to compute the AUV

reflected data from eleven (out of twenty-five) countries that during the POR did not produce

silicon metal or any other product that is a source of silica fume. (Id. at 13.) Globe further

contends that the WTA values Commerce used for seventeen of the countries were aberrational

and that if the WTA data are relied on, only information from the seven countries that produced

silicon metal and exported silicon dioxide to India during the POR should be used. (Id. at 20,

23–24.) The AUV of these exports, according to Globe, was $529 per MT, in comparison to the

$1696 per MT for silicon dioxide calculated by Commerce using all twenty-five countries. (Id.

at 10, 12.)

               Alternatively, Globe argues that Commerce should value silica fume using either

two invoices from Elkem, a leading supplier of silica fume in India, or Infodrive data, which,

Globe alleges, contains more product-specific values and better corresponds with the silica fume
Consol. Court No. 07-00386                                                                  Page 13


in question. (Id. at 17–19.) Globe argues that because there is a large difference in the value of

silica fume sold for refractory versus concrete applications,9 the use of appropriate grade-specific

values for silica fume from Elkem would be more accurate and reflective of the value of silica

fume generated by Defendant-Intervenors’ silicon metal production. (Id. at 24.) Globe submits

that Elkem’s invoices demonstrate a price of $290 per MT for certain concrete applications and

$675 per MT for certain refractory applications during the POR. (Id. at 34–35.) Globe

maintains that the Infodrive data similarly shows that imports in India during the POR for

Elkem-produced concrete-grade silica fume and refractory grade silica fume had AUVs of $294

per MT and $575 per MT, respectively. (Id. at 33–34.) Globe further argues that the Infodrive

data are more specific and detailed than the WTA data because they provide a “product

description” for each entry detailing “the composition and value” of the types of silicon dioxide

imported into India under the basket category. (Id. at 19, 33.) Thus, Globe contends, the

Infodrive data is more product-specific than the WTA data because they show that during the

POR the AUV of imports for the specific by-product silica fume was $489 per MT. (Id. at 34.)

               Commerce rejected data from any individual companies submitted by Globe

because of its preference for using broad market-based averages when available. Issues and

Decision Memorandum at 25. Commerce also rejected the Infodrive India data because of

discrepancies between them and the WTA data. Id. Specifically, the WTA data showed

8,287 MT of silicon dioxide imported during the POR while the Infodrive India data showed


       9
         Globe relies on an unsigned statement from an individual in India with alleged
knowledge of the silica fume market to demonstrate that silica fume must have at least 95%
silicon dioxide content to be used in refractory applications, which accounts for its higher price.
(See Globe’s App. Tab 10, at Ex. 3.)
Consol. Court No. 07-00386                                                                    Page 14


17,864 MT. Id. Of the inputs in the Infodrive data, 80% were not subjected to customs duties,

which led Commerce to believe they were not consumption entries and did not reflect the price

paid within the Indian market. Id. After excluding these entries, the Infodrive India data

consisted of only 3,409 MT of silicon dioxide, and Commerce could not determine if this data

reflected the same information as found in the WTA data. Id.

               Ordinarily, when “faced with a choice between two imperfect options, it is within

Commerce’s discretion to determine which choice represents the best available information.”

Dorbest, 462 F. Supp. 2d at 1277. Here, however, the record does not support Commerce’s use

of the WTA data for all silicon dioxide imports under the basket tariff subheading to determine

the AUV for silica fume. Valuing silica fume based on data for the broader category of silicon

dioxide captures too many products that are not the by-product silica fume. While Commerce

preferred to rely on the WTA data because it could not determine whether the Infodrive data

included a “significant percentage of the WTA data,” Commerce acknowledged that the

Infodrive data still suggested that the WTA data were overinclusive and “may [have] include[d]

higher-valued products.” Issues and Decision Memorandum at 25.

               While there are flaws with using each data set to value silicon fume, the court

finds that the best available information is data that better relates to the specific by-product silica

fume. Consequently, Commerce’s decision to value silica fume using WTA data for the broad

basket tariff subheading of silicon dioxide, rather than data relating to the specific input at issue,

was unsupported by substantial evidence. Accordingly, the court remands this issue to

Commerce in order for it to obtain better information for valuing silica fume or to use

information on the record that relates specifically to the by-product silica fume.
Consol. Court No. 07-00386                                                                 Page 15


       C. Quartz

               Commerce based its surrogate value for quartz on the data provided for the

Grade I category of quartz from the IBM Yearbook, which defines Grade I quartz as having a

silicon dioxide content of 98% or more. Id. at 20; (Globe’s App. Tab 5, at Ex. 12.). Commerce

preferred this data over the price quotes and Grade A valuation proposed by Globe, as this

surrogate value is from a public source, uses a broad market average, and is product-specific.

Issues and Decision Memorandum at 20; see also Policy Bulletin at *4.

               Globe argues that the quartz used by Defendant-Intervenors should be categorized

as Grade A quartz, as Jiangxi Gangyuan and Datong Jinneng used quartz with a high silicon

dioxide content.10 (Globe’s Br. 26.) Globe contends that a Grade I categorization of quartz

allows more impurities than the quartz used by Defendant-Intervenors. (Id. at 26–27.)

               Globe’s argument is unpersuasive. The 98% silicon dioxide content required

under the Grade I category is only a minimum requirement and quartz with more than the

minimum allowable silicon dioxide content may still be within this grade. Similarly, the amount

of impurities allowed under the Grade I category is merely the maximum quantity of impurities

allowed and does not represent the quantity of impurities that are present in all quartz found

under this grading. Further, Globe does not cite to any official definition of Grade A quartz and

relies instead on the internal grading of two Indian suppliers. (See Globe’s Br. 25–28.)

               As the data from the IBM Yearbook on quartz was country-wide and publicly

available and that data was not shown to be unacceptably flawed, Commerce’s decision to use


       10
         The percentages were [[        ]] and [[      ]], respectively. (Globe’s Br.
(Confidential) 26.)
Consol. Court No. 07-00386                                                               Page 16


the data from the IBM Yearbook instead of Globe’s price quotes was supported by substantial

evidence.

                                        CONCLUSION

               For the foregoing reasons, Globe’s motion for judgment on the agency record is

granted in part and denied in part. Defendant-Intervenors’ motion for judgment on the agency

record is denied. The court hereby remands this matter to Commerce to determine the

appropriate surrogate value for silica fume using product-specific data.

               Commerce shall file its remand determination with the court within forty-five

days of this date. Globe and Defendant-Intervenors have eleven days thereafter to file objections

and Commerce will have seven days thereafter to file its response.




                                                         /s/ Jane A. Restani
                                                             Jane A. Restani
                                                             Chief Judge


Dated: This 1st day of October, 2008.
       New York, New York.
