Slip Op. 05 - 37
UNITED STATES COURT OF INTERNATIONAL TRADE
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CARIBBEAN ISPAT LIMITED, :
Plaintiff, :
v. : Court No. 02-00756
UNITED STATES, :
Defendant. :
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Opinion & Order
[Plaintiff's motion for judgment upon the
agency record denied; action dismissed.]
Decided: March 22, 2005
Steptoe & Johnson LLP (Mark A. Moran, Matthew S. Yeo and
Evangeline D. Keenan) for the plaintiff.
Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy
General Counsel, and Irene H. Chen, U.S. International Trade
Commission, for the defendant.
Collier Shannon Scott, PLLC (Paul C. Rosenthal, R. Alan Lu-
berda and Kathleen W. Cannon) for intervenor-defendants Georgetown
Steel Company, LLC et al.
AQUILINO, Senior Judge: The above-encaptioned plaintiff
producer of steel in the Republic of Trinidad and Tobago ("RTT"),
which apparently has recently changed its corporate name to Mittal
Steel Point Lisas Limited, pleads for relief from that part of the
final determination of the U.S. International Trade Commission
("ITC") sub nom. Carbon and Certain Alloy Steel Wire Rod From
Brazil, Canada, Germany, Indonesia, Mexico, Moldova, Trinidad and
Court No. 02-00756 Page 2
Tobago, and Ukraine, 67 Fed.Reg. 66,662 (Nov. 1, 2002), which con-
cluded that the domestic U.S. industry is materially injured by
reason of its exports found to have been sold here at less than
fair value. Its complaint is that that determination is not
supported by substantial evidence on the record and the commission-
ers voting in the affirmative did not perform the proper "by reason
of" analysis that 19 U.S.C. §1673d(b)(1) requires. Whereupon the
plaintiff prays that this court remand the matter to the Commission
to
reconsider and explain fully whether the volume of
imports from Trinidad and Tobago was significant, had
significant price effects, and had a significant adverse
impact during the period of investigation in light of
other known and potential causes of injury, in particu-
lar, the effects of other subject and non-subject im-
ports[1], and to provide an adequate explanation as to how
it ensured that it did not attribute the effects of other
subject and non-subject imports to imports from [RTT];
to quote from the proposed form of order accompanying its motion
for judgment upon the agency record that has been interposed2 pur-
suant to USCIT Rule 56.2.
1
The "other subject" imports to which the plaintiff refers
came from Brazil, Canada, Germany, Indonesia, Mexico, Moldova and
Ukraine. The "non-subject" imports refer to Egypt, South Africa,
Turkey and Venezuela, as well as to those from "other sources".
Those "other sources" in the tables appended to that determination
refer to countries that exported wire rod which was not within the
scope of the investigation.
2
The plaintiff has also filed a motion for oral argument that
need not be granted, given the quality of its written submissions,
as well as of those on behalf of the parties in opposition to its
motion for judgment.
Court No. 02-00756 Page 3
The court's jurisdiction to decide this motion is based
upon 19 U.S.C. §1516a(a)(2)(A)(i)(II) and 28 U.S.C. §§ 1581(c),
2631(c). And, whatever the issues raised, defendant's determina-
tion must be affirmed 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).
I
The imports from RTT were subjected to separate material-
injury analysis, as mandated by an exception to the ITC cumulation
requirement. That is, per 19 U.S.C. §1677(7)(G)(i)(I) when
petitions are filed on the same day, the Commission is required to
assess cumulatively the volume and effect of the subject merchan-
dise from all countries, except that
from any country designated as a beneficiary country
under the Caribbean Basin Economic Recovery Act (19
U.S.C. 2701 et seq.) for purposes of making a determina-
tion with respect to that country[.]
19 U.S.C. §1677(7)(G)(ii)(III). This exception applies to Trinidad
and Tobago3 herein and underlies plaintiff's complaint. See, e.g.,
3
RTT is a designated beneficiary country under the Caribbean
Basin Economic Recovery Act ("CBERA"). See Pub. L. No. 98-67,
Title II, §212(a)-(b), 97 Stat. 384, 385 (Aug. 5, 1983); HTSUS
General Note 4(a) (1999). The rationale for this exception is that
the ITC undertake an injury analysis in a manner consistent with
the statute's goal of promoting economic growth and development in
the Caribbean. See H.R. Conf. Rep. No. 101-650, p. 135 (1990)("The
conferees emphasize that this provision is intended to benefit CBI
beneficiary countries, consistent with the specific objectives of
the CBI program"). But Congress did not intend that this provision
preclude an affirmative determination of material injury for a
CBERA beneficiary in an investigation covering imports from other
areas of the world, which themselves are required to be cumulated.
See, e.g., id.
Court No. 02-00756 Page 4
Connecticut Steel Corp. v. United States, 18 CIT 313, 314 and 852
F.Supp. 1061, 1063 n. 1 (1994) (affirming ITC negative preliminary
determination with respect to RTT); Certain Steel[] Wire Rod From
Canada, Germany, Trinidad and Tobago, and Venezuela, 63 Fed.Reg.
14,475 (March 25, 1998)(negative final determination with regard to
RTT); Certain Steel Wire Rod From Canada, Germany, Trinidad and
Tobago, and Venezuela, 62 Fed.Reg. 63,958 (Dec. 3, 1997)(negative
final determination as to RTT).
According to the plaintiff, only the ITC chairman under-
took to determine whether imports from RTT "by themselves" caused
material injury, considering the much-larger volumes of lower-
priced subject and non-subject imports into the domestic market
during the period of investigation:
. . . Her analysis, which fully accounted for the
critical volume and pricing evidence . . ., led her to
dissent from the Commission Majority's affirmative deter-
mination on the grounds that imports from [RTT] did not
make a material contribution to the domestic industry's
injured condition.
Plaintiff's Opening Brief, p. 11. Further:
Chairman Okun's dissenting opinion is significant
for purposes of this appeal not for the ultimate conclu-
sion she reached, but rather because it demonstrates the
type of analysis that must be undertaken to ensure
compliance with the legal obligation that injury from
other sources not be attributed to imports from Trinidad
and Tobago.
Id. at 23. Indeed, her ITC colleagues do not disagree with her
stated premise that, because RTT
Court No. 02-00756 Page 5
is a beneficiary country under . . . CBERA[], imports
from Trinidad and Tobago may only be cumulated with
imports from another CBERA country for purposes of deter-
mining material injury, or threat thereof, by reason of
imports from the CBERA beneficiary country or countries.
[RTT] is the only subject country in these investigations
that is a CBERA country. Therefore, my analysis of
whether the domestic industry is materially injured or
threatened with material injury by reason of wire rod
from [RTT] is limited to a consideration of subject
imports from [there] alone.4
Rather, their views of the causation factors disagree. With regard
to volume, they note that, throughout the period of investigation,
RTT was the second or third largest source of subject wire rod
imports into the U.S. market, and find, in that "price sensitive
market", RTT's
absolute volume levels and market share, and their in-
crease from 1999 to 2001, to be significant in absolute
terms and relative to production and consumption in the
United States.5
As for price,
subject imports from [RTT] are concentrated in the low to
medium carbon industrial quality wire rod category,
commodity products that are highly price sensitive.
Subject imports from Trinidad are highly substitutable
with the domestic product in that category, which rein-
forces the price competition between subject imports from
[RTT] and the domestic product.
Subject imports from [RTT] undersold comparable U.S.
products in 70.8 percent of quarterly comparisons from
1999 to 2001. For Products 1 and 2, both of which were
grades of industrial quality wire rod, subject imports
4
Defendant's Appendix, List 1, Doc. No. 199, USITC Pub. 3546,
p. 39 (Oct. 2002) (footnote omitted).
5
Id. at 37 (footnotes omitted).
Court No. 02-00756 Page 6
from [RTT] undersold the domestic industry in 22 out of
26 comparisons by margins that ranged up to 11.0 percent.
The highest quantity of available price comparisons
between imports from [RTT] and the domestic product were
for Products 1 and 2. Eight purchasers rated the U.S.
product inferior (higher) in price to [RTT] subject im-
ports . . ., and only one purchaser ranked the domestic
product superior (lower) in price to subject imports from
[RTT]. In light of the importance of price in purchasing
decisions, and the significant and increasing volume of
subject imports from Trinidad and Tobago from 1999 to
2001, we find the underselling indicated by the pricing
data, and corroborated by the other information in the
record, to be significant.
We find that subject imports from Trinidad and
Tobago have had significant adverse price suppressing
effects. Pricing pressure from the readily available and
increasing volume of lower-priced subject imports from
[RTT] prevented the domestic industry from raising prices
when its costs increased, particularly in the price-sen-
sitive low carbon industrial quality wire rod category.
As stated earlier, [RTT] subject imports . . . are
concentrated in that category. The cost-price squeeze
experienced by the domestic industry described above was
exacerbated by its declining shipments and consequent
declining revenues, particularly during 2001, as lower-
priced imports from [RTT] increased in volume by 23.5
percent and gained market share at the expense of the
domestic industry.
We therefore find that there has been significant
price underselling by subject imports from Trinidad and
Tobago of the domestic product, and that subject imports
have suppressed prices of domestically produced wire rod
to a significant degree.6
Finally, regarding the impact of RTT volume and price, the Com-
mission majority view is as follows:
. . . [D]uring the investigation period, the domestic
industry experienced growing operating losses, decreased
production, shipments, capacity and capacity utilization,
6
Id. at 37-38 (footnotes omitted).
Court No. 02-00756 Page 7
declining employment indicators, increasing costs, and
suppressed prices. Trinidad and Tobago, which was ranked
as the second or third most significant subject import
supplier throughout the period, shipped increasing vol-
umes of subject imports that undersold the domestic wire
rod in a majority of comparable periods. Thus, based on
the significant and increasing volume and market share of
subject imports from [RTT] in a declining market, the
significant price underselling, and significant price
suppression by these imports, and declining industry
indicators from 1999 to 2001, we find that the subject
imports from Trinidad and Tobago are having a significant
adverse impact on the domestic industry producing wire
rod.7
A
The core of the controversy is the jurisprudence
interpreting the causation requisite of 19 U.S.C. §1673d(b)(1).
According to that section, an affirmative injury determination has
two elements, the first being that a domestic industry is materi-
ally injured, and the second that it be "by reason of" the imports
under investigation. See, e.g., Gerald Metals, Inc. v. United
States, 132 F.3d 716, 719-20 (Fed.Cir. 1997). In order to make
such findings, commissioners must determine whether factors listed
in 19 U.S.C. §1677(7)(B)(i) are significant, and, if so, decide
whether overall they indicate that the subject imports are causing
material injury to the domestic industry. See 19 U.S.C. §1677-
(7)(C).
The Court of Appeals for the Federal Circuit has
interpreted the "by reason of" language of section 1673d(b)(1) to
mean that "adequate evidence" on the record demonstrate that sub-
7
Id. at 38 (footnotes omitted).
Court No. 02-00756 Page 8
ject imports contribute more than minimally or tangentially to the
injury sustained by the domestic industry. E.g., Taiwan Semicon-
ductor Indus. Ass'n v. Int'l Trade Comm'n, 266 F.3d 1339, 1345
(Fed.Cir. 2001); Gerald Metals, Inc. v. United States, 132 F.3d at
722. With respect to such evidence, the ITC must present an "ade-
quate explanation" of its differentiation of the injurious effects
of the RTT subject imports from those of other sources of injury.
Altx, Inc. v. United States, 26 CIT 709, 731 (2002), quoting Taiwan
Semiconductor Indus. Ass'n v. United States, 23 CIT 410, 414-17, 59
F.Supp.2d 1324, 1329-31 (1999), citing Uruguay Round Agreements
Act, Statement of Administrative Action ("SAA"), H.R. Doc. No. 103-
316, vol. 1, pp. 851-52 (1994). It is not, however, "required to
isolate the effects of subject imports from other factors contrib-
uting to injury" or to draw "bright-line distinctions" between the
impact of subject imports and other causes. E.g., Asociacion de
Productores de Salmon y Trucha de Chile AG v. U.S. Int'l Trade
Comm'n, 26 CIT 29, 43, 180 F.Supp.2d 1360, 1375 (2002) (citations
omitted).
(1)
Relying on Gerald Metals and Taiwan Semiconductor, the
plaintiff seeks to compel analysis as to whether the imports from
RTT were "material" in view of other subject and non-subject
imports. See Plaintiff's Opening Brief, p. 9. Those cases,
however, only require that the ITC determine whether "other
factors" sever the casual link between RTT imports and injury to
Court No. 02-00756 Page 9
the domestic industry. In Taiwan Semiconductor, 266 F.3d at 1345,
the Federal Circuit affirmed a CIT remand because "the Commission
did not consider the injurious effects of . . . other factors" when
evaluating the harm caused by subject imports from Taiwan to the
domestic industry. Those "other factors" included non-subject 8
imports, but not other dumped or subsidized subject imports. And,
likewise in Gerald Metals, 132 F.3d at 723, the court of appeals
reversed the CIT's holding because the ITC in that matter had
identified a significant presence of "fairly-traded" imports, as
opposed to those dumped or subsidized, but ignored their impact on
the domestic industry in its "by reason of" analysis.
As pointed out by reference to the SAA in defendant's
brief, when the Commission performs that analysis, it is required
to
examine all relevant evidence, including any known
factors, other than dumped [or subsidized] subject
imports which at the same time are injuring the domestic
industry . . ..
Defendant's Opposition Brief, p. 11, quoting SAA, p. 851 (1994)
(brackets in original). Hence, the other subject imports herein
found by the International Trade Administration, U.S. Department of
Commerce ("ITA") to have been either subsidized or sold in the
8
There, the ITC considered non-subject imports those beyond
the scope of the investigation. Here, seemingly without explana-
tion, imports from Egypt, South Africa, Turkey and Venezuela were
considered non-subject by the ITC even though they were within such
scope. See Notice of Preliminary Determination of Sales at Less
Than Fair Value: Carbon and Certain Alloy Steel Wire Rod from
Germany, 67 Fed.Reg. 17,384, 17,385 (April 10, 2002).
Court No. 02-00756 Page 10
United States at less than fair value are excluded from those
"other factors" that the commissioners are required to take into
account.9
The same rationale applies to the imports from Turkey
which were improperly categorized as non-subject by the ITC and
subsequently in plaintiff's motion. That is, those imports were
within the scope of the investigation, albeit dismissed therefrom
because the ITA found their rate of subsidization to be de minimis
within the meaning of 19 U.S.C. §§ 1671b(b)(4) and 1671d(a)(3).
See Final Negative Countervailing Duty Determination: Carbon and
Certain Alloy Steel Wire Rod from Turkey, 67 Fed.Reg. 55,815 (Aug.
30, 2002). But that subsequent, statutorily-mandated determination
does not exclude those imports from investigation.
(2)
The only remaining claim raised herein is whether the ITC
failed to compare RTT subject imports with those not dumped or
9
This is not post-hoc rationalization by the defendant,
rather the SAA is an authoritative interpretation of the Uruguay
Round agreements. Compare SAA, p. 656 with Plaintiff's Reply
Brief, pp. 8-12. And even though the defendant admits that it did
compare the subject imports from Israel with those from China in
Pure Magnesium From China and Israel, 66 Fed.Reg. 58,162 (Nov. 20,
2001), "each injury investigation is sui generis". Citrosuco
Paulista, S.A. v. United States, 12 CIT 1196, 1209, 704 F.Supp.
1075, 1087 (1988), quoting Armstrong Bros. Tool Co. v. United
States, 84 Cust.Ct. 102, 115, C.D. 4848, 489 F.Supp. 269, 279
(1980). Furthermore, the causation analysis in that determination
does not set a precedent for any future investigation. See, e.g.,
Gerald Metals, Inc. v. United States, 22 CIT 1009, 1015, 27
F.Supp.2d 1351, 1357 (1998)("the antidumping statute on its face
does not compel a single method for analyzing causation, so long as
the requirements of 19 U.S.C. §1677(7)(B)-(C) are met").
Court No. 02-00756 Page 11
subsidized.10 According to the case law cited above, the Commis-
sion must not attribute the effects caused by other sources of
injury to those caused by subject imports from a country like
Trinidad and Tobago. Here, the plaintiff asserts that there was
"critical evidence" contradicting the ITC's finding of
"significance" with respect to the volume of RTT imports.
Plaintiff's Opening Brief, pp. 20-21. Counsel depict that evidence
in a table with four distinct column headings labeled from left to
right: "Other Subject Imports", "Non-Subject Imports", "Subject +
Non-Subject", and "Trinidad & Tobago". Id. at 21 (boldface in
original). A comparative analysis follows therein, where the data
corresponding to the column heading " Trinidad & Tobago" are com-
pared to those in the other columns.
But this comparison exposes plaintiff's paradox. That
is, the ITC is not required to compare "Other Subject Imports" and
"Non-Subject Imports", together or separately, with "Trinidad and
Tobago". And even though non-subject imports must be examined as
an "other factor", this does not mean that they will be determina-
tive, or even relevant, to the volume, price effects, or adverse
10
In response to plaintiff's suggestion that attribution of
injury is misplaced, e.g., imports from Egypt, South Africa and
Venezuela, those imports were found to be negligible within the
meaning of 19 U.S.C. §§ 1673b(a) and 1677(24)(A)(i)(I). See Carbon
and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt,
Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and
Tobago, Turkey, Ukraine, and Venezuela, 66 Fed.Reg. 54,539 (Oct.
29, 2001).
Court No. 02-00756 Page 12
impact the ITC is required to consider. For example, the analysis
the ITC is required to perform is whether the volume of imports
from RTT itself was significant in causing material injury to the
domestic industry during the period of investigation.11 And, if
that analysis is substantiated by evidence on the record, the court
may not re-weigh that evidence or substitute its analysis for that
of the agency. E.g., USEC, Inc. v. United States, 25 CIT 49, 54,
132 F.Supp.2d 1, 6 (2001), aff'd, 34 Fed.App'x 725 (Fed.Cir. 2002).
Here, it is self-evident from the data compiled in the
tables attached to the ITC's determination, and incorporated by
reference thereto in the majority's published views, that the
commissioners have found more than an adequate basis for them. See
USITC Pub. 3546, pp. 36-38. See also SAA, p. 892, citing Ceramica
Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed.Cir.
11
See 19 U.S.C. §1677(7)(C)(i). Compare Plaintiff's Opening
Brief, p. 22:
. . . The Commission Majority failed to consider whether
[RTT']s import volumes or market share, or any growth in
those trends over the POI, were independently significant
given the dominant presence of other subject and non-
subject imports and the trends in such imports.
A "trend" analysis, however, is irrelevant to a finding of
current material injury. See SAA, p. 883 (comparing standards for
material injury and threat of such injury). Instead, it more
appropriately applies to a "threat" analysis under 19 U.S.C.
§1677(7)(F). See, e.g., Asociacion de Productores de Salmon y
Trucha de Chile AG v. U.S. Int'l Trade Comm'n, 26 CIT 29, 43, 180
F.Supp.2d 1360, 1375 (2002), citing SAA at 885; Bando Chemical
Industries, Ltd. v. United States, 16 CIT 133, 135, 784 F.Supp.
224, 225 (1992).
Court No. 02-00756 Page 13
1987), quoting Bowman Transportation, Inc. v. Arkansas-Best Freight
System, Inc., 419 U.S. 281, 286 (1974):
. . . Existing law does not require that an agency make
an explicit response to every argument made by a party,
but instead requires that issues material to the agency's
determination be discussed so that the "agency's path
[sic] may reasonably be discerned" by a reviewing court.
See, e.g., Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620
(1966); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,
933 (Fed.Cir. 1984); Bando Chemical Industries, Ltd. v. United
States, 16 CIT 133, 136, 787 F.Supp. 224, 226 (1992) ("it is []
true that a record may support several acceptable alternatives").
The law is well-settled that it is
within the Commission's discretion to make reasonable
interpretations of the evidence and to determine the
overall significance of any particular factor or piece of
evidence.
Maine Potato Council v. United States, 9 CIT 293, 300, 613 F.Supp.
1237, 1244 (1985). And that is what occurred here with regard to
each of the ITC majority's "significant" findings. See USITC Pub.
3546, pp. 36-38.
The only conclusion the court can extrapolate from the
evidence referred to in plaintiff's papers and Chairman Okun's
dissenting view is that there may be additional causes of, or
reasons for, the domestic industry's material injury. Cf. SAA, p.
885:
Court No. 02-00756 Page 14
. . . While [other] factors . . . may account for the
injury to the domestic industry, they also may demon-
strate that an industry is facing difficulties from a
variety of sources and is vulnerable to dumped or
subsidized imports.
But this does not preclude a determination that the subject imports
from Trinidad and Tobago caused material injury to the domestic
industry. See, e.g., Nippon Steel Corp. v. United States, 26 CIT
911, 936 and 223 F.Supp.2d 1349, 1371 n. 31 (2002) ("there may be
more than one sufficient cause of material injury"), rev'd on other
grounds, 345 F.3d 1379 (Fed.Cir. 2003). If the court were to
accept plaintiff's pressing of Chairman Okun's dissenting view,
then the ITC's material-injury analysis with respect to the cumu-
lated subject imports also would be tenuous. But surely, neither
the plaintiff nor the chairman requests reconsideration of that
determination.
II
In view of the foregoing, plaintiff's motion for judgment
upon the agency record cannot be granted; and this action should
therefore be dismissed. Judgment will enter accordingly.
So ordered.
Decided: New York, New York
March 22, 2005
Thomas J. Aquilino, Jr.
Senior Judge