Slip Op. 02 - 113
UNITED STATES COURT OF INTERNATIONAL TRADE
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CO-STEEL RARITAN, INC., GS INDUSTRIES,
KEYSTONE CONSOLIDATED INDUSTRIES, INC., :
and NORTH STAR STEEL TEXAS, INC.,
:
Plaintiffs,
:
v.
:
UNITED STATES INTERNATIONAL TRADE : Court No. 01-00955
COMMISSION,
:
Defendant,
:
-and-
:
ALEXANDRIA NATIONAL IRON AND STEEL
COMPANY and SIDERURGICA DEL ORINOCO, :
C.A.,
:
Intervenor-Defendants.
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Memorandum & Order
[Results of remand to the Interna-
tional Trade Commission affirmed.]
Dated: September 13, 2002
Collier Shannon Scott, PLLC (Paul C. Rosenthal, Kathleen W.
Cannon, R. Alan Luberda and John M. Herrmann) for the plaintiffs.
Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy
General Counsel, and Karen Veninga Driscoll, Attorney, United
States International Trade Commission, for the defendant.
Baker & McKenzie (Kevin M. O'Brien and Thomas Peele) for
intervenor-defendant Alexandria National Iron and Steel Company.
White & Case LLP (David P. Houlihan, Lyle B. Vander Schaaf,
Frank H. Morgan, Joseph H. Heckendorn and Jonathan Seiger) for
intervenor-defendant Siderurgica del Orinoco, C.A.
DeKieffer & Horgan (J. Kevin Horgan, Marc E. Montalbine and
Merritt R. Blakeslee) for proposed intervenor-defendants Saar-
stahl AG and Saarsteel Inc.
Court No. 01-00955 Page 2
AQUILINO, Judge: In its slip opinion 02-59, 26 CIT ,
F.Supp.2d (June 20, 2002), familiarity with which is
presumed, the court remanded for reconsideration that part of the
determination of defendant International Trade Commission ("ITC")
sub nom. 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), which terminated investigations with regard
to subject imports from Egypt, South Africa and Venezuela. In
response to that order, defendant's counsel have filed Views of the
Commission on Remand (Aug. 16, 2002) to the effect that
imports of wire rod from Egypt, South Africa and Vene-
zuela are not negligible, and that there is a reasonable
indication that an industry in the United States is
materially injured by reason of imports of wire rod from
Egypt, South Africa and Venezuela that are allegedly sold
in the United States at less than fair value.
Included in the written analysis in support of this conclusion is
the following:
. . . [W]e reconsidered negligibility based on Commerce's
modified scope issued April 10, 2002. . . . [W]e
considered official Commerce import statistics for the
period of August 2000 through July 2001, supplemented
with importer responses regarding imports of the products
which have now been excluded by Commerce from the scope
of investigations (1080 tire cord quality wire rod and
1080 tire bead quality wire rod, corresponding to the
quality designations, definitions and applications Com-
merce designated). The importers that submitted data on
the modified scope accounted for 94.9 percent of U.S.
imports of wire rod from the subject countries in 2000
and 88.9 percent of imports from all countries in 2000.
Based on the modified scope, Egypt has a share of total
imports of 1.5 percent; Germany, *** percent; South
Africa, 2.8 percent; and Venezuela, 2.3 percent. Each of
Court No. 01-00955 Page 3
these countries is below the negligibility threshold of
three percent of total imports. The aggregate import
share of these four countries, however, is *** percent,
which exceeds the aggregate negligibility level of seven
percent prescribed by statute. 19 U.S.C. §1677(24)(A)-
(i) and (ii). We therefore find, pursuant to 19 U.S.C.
§1677(24)(A)(ii), and the Court's Order, that subject
imports from Egypt, South Africa, and Venezuela are not
negligible for purposes of our present material injury
analysis.1
The plaintiffs move for expedited entry of final
judgment, affirming this determination upon remand, on the stated
ground that it "could potentially eliminate the need for future
litigation arising out of that determination", given the ITC's
"soon-to-be issued final determinations in the underlying agency
investigations".
Intervenor-defendant Alexandria National Iron and Steel
Company ("ANSDK") responds with a request that the court not affirm
the foregoing determination, rather the ITC's original preliminary
determination, on the grounds that the Commission has either
misinterpreted the court's slip opinion 02-59 or "demonstrated
clearly the procedural and legal defects that flow from the
approach used by the [ITC]" and also that its remand determination
misapplies 19 U.S.C. §1677(24). On its part, intervenor-defendant
1
Views of the Commission on Remand, pp. 10-11 (footnotes
omitted). The reference "Commerce's modified scope" is to that
Department's 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 (April 10, 2002).
The figure(s) with regard to Germany have been omitted from
this public report in the interest of confidentiality.
Court No. 01-00955 Page 4
Siderurgica del Orinoco, C.A. ("Sidor") objects to the Views of the
Commission on Remand as being based, at least in part, upon an
unlawful reopening of the ITC record; as failing to follow the
plain meaning of the Trade Agreements Act of 1979, as amended; and
as not being based on evidence that corresponds to the modified
scope.2
I
Also before the court now is a motion for leave to
intervene herein out of time by Saarstahl AG and Saarsteel Inc. as
parties defendant. The defendant has declined to consent to this
motion, and the plaintiffs actively oppose it. These adverse re-
actions are well-founded.
The motion avers that Saarstahl is a German producer of
carbon and certain alloy steel wire rod and "an interested party
who was a party to the proceeding in connection with which th[is]
matter arose" within the meaning of 28 U.S.C. §2631(j)(1)(B) and 19
U.S.C. §1677(9)(A). Cf. 28 U.S.C. §2631(k)(1). That is, Saar-
stahl has been a party to the administrative proceedings before the
International Trade Administration, U.S. Department of Commerce
("ITA") and ITC from the beginning3 and has been directly impli-
2
This statement of Sidor objections has been followed by a
formal motion for oral argument thereon, which motion can be, and
it hereby is, denied, given the quality of the papers submitted on
all sides.
3
See, e.g., ITA Notice of Preliminary Determination, supra n.
1, 67 Fed.Reg. at 17,384 (Case History).
Court No. 01-00955 Page 5
cated by the latter's above-cited, original, affirmative, prelimi-
nary determination of reasonable indication of material injury to
the domestic industry by reason of German exports to the United
States that has been the core of this case. As such, it had a
right to intervene herein pursuant to the foregoing statutory
authority and USCIT Rule 24(a), independent of any subsequent ITA
modification of the scope of the investigation(s), which, in the
Views of the Commission on Remand, continues to implicate imports
from Germany in an affirmative manner.
Of course, Saarstahl's able counsel understand, even
concede, this circumstance in now positing their motion "out of
time" pursuant to Rule 24(a), which provides that, in an action
described in 28 U.S.C. §1581(c), which this case is,
a timely application shall be made no later than 30 days
after the date of service of the complaint as provided
for in Rule 3(f), unless for good cause shown at such
later time for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; or (2) under
circumstances in which by due diligence a motion to
intervene under this subsection could not have been made
within the 30-day period.
They must also understand that this rule does not amount to
permissive intervention in a case of this kind. See Geum Poong
Corp. v. United States, 26 CIT , F.Supp.2d , Slip Op. 02-
84, pp. 4-5 and n. 5 (Aug. 6, 2002), appeals docketed, Nos. 02-
1573, 02-1578 (Fed.Cir. Aug. 30 and Sept. 6, 2002). Indeed, on
September 6, 2002, this court granted the motion of another
"interested" German producer for leave to intervene as a party
Court No. 01-00955 Page 6
defendant in Committee for Fair Beam Imports v. United States, CIT
No. 02-00531, wherein the same counsel as here correctly confirmed
that such a motion "must" be filed no later than 30 days after the
date when a complaint is filed.
The sum and substance of their motion in this case is
stated to be that,
[b]ecause plaintiffs are now attempting to use this
litigation regarding the Commission's preliminary deter-
mination to influence [it]s final investigation, inter-
vention is appropriate at this time. The Commission's
rescission in its remand determination of its earlier
negligibility determination with respect to Egypt, South
Africa, and Venezuela raises the possibility that the
seven-percent exception to the negligibility statute will
be triggered. If this occurs, German imports will be
rendered non-negligible, notwithstanding that they fall
below the three-percent negligibility threshold. Saar-
stahl respectfully submits that this substantial change
in its posture in the Commission's investigations con-
stitutes good cause for its intervention out of time.
Saarstahl Motion for Leave to Intervene, third page (footnote
omitted). This court cannot concur. On its face, the foregoing
reasoning is not equatable with the "good cause" spelled out by the
above rule. Secondly, the goal of complaints filed in court about
preliminary agency determinations invariably is to correct per-
ceived errors -- in anticipation of a final determination in
accordance with law. Finally, to repeat, Saarstahl has been, and
remains, implicated in this matter, one way or the other. Hence,
it is not subject to the exception(s) to the 30-day standard of
USCIT Rule 24(a), supra, and its motion made pursuant thereto must
therefore be, and the same hereby is, denied.
Court No. 01-00955 Page 7
II
As for the interested parties that have sought and
obtained in a timely manner leave to intervene herein as defend-
ants, both ANSDK and Sidor contend that the Views of the Commission
on Remand misapply the statute which governs this case, 19 U.S.C.
§1677(24), and was discussed in slip opinion 02-59. But the ITC
correctly interpreted that opinion as not directing it to base its
remand determinations, including its domestic like product and
industry findings, entirely on the ITA's modified scope.4 More-
over, the commissioners report that they do not believe that their
domestic like product and industry findings would be different if
they were based on the modified scope because
the record reflects a continuum of wire rod products
without clear dividing lines, including no clear dividing
line between 1080 tire cord wire rod, 1080 tire bead wire
rod, as described in Commerce's modified scope of invest-
igations, and other high quality specialized wire rod
products. Under these circumstances, the Commission does
not treat each item of merchandise to be a separate
domestic like product that is only "like" its counterpart
in the scope, but rather considers the continuum itself
to constitute the domestic like product.5
The ANSDK thesis is that, if the change in scope had resulted in a
change in the domestic like-product definition, then the result
could well have been different now, but, in the absence of change
in the latter, the negligibility determination under the statute
does not change. ANSDK's Comments, pp. 13-14. Accord: Sidor Ob-
4
Views of the Commission on Remand, p. 8.
5
Id. at 8-9 (footnotes omitted).
Court No. 01-00955 Page 8
jections, p. 6. Both intervenor-defendants focus on footnote 29 to
the Views of the Commission on Remand stating that, upon "[r]ead-
ing 19 U.S.C. §1673b(a)(1) together with 19 U.S.C. §1677(24)(A)(i),
it is clear that the 'merchandise' referred to in the negligibility
provision is subject merchandise." Each considers this a meaning-
ful misreading of the two statutory sections. E.g., ANSDK Com-
ments, p. 15 ("The lack of . . . reference to 'subject merchandise'
in Section 1677(24) strongly indicates that the merchandise is to
be identified with reference to the domestic-like product from all
countries"); Sidor Objections, p. 7 ("The choice of the 'domestic
like product' rather than 'subject merchandise' in the negligibil-
ity provision must be viewed as a deliberate one").
Perhaps, each misunderstands the ITC's note. Sidor, for
example, argues that, to
construe the statute in the manner suggested by the
Commission . . . means that the term "merchandise" in
section 1677(24)[A](i) is "subject merchandise" both in
the numerator and the denominator of the negligibility
ratio. There is no logical or consistent way of inter-
preting the statute to avoid this result if section 1673-
b(A)(1)'s use of the term "subject merchandise" is inter-
preted as defining merchandise in section 1677(24)[A](i).
Sidor Objections, p. 10. While it is indeed clear that the purview
of the negligibility section(s) of the statute is subject merchan-
dise, it does not necessarily follow that 19 U.S.C. §1677(24)(A)(i)
must be parsed as if actually written with "subject" supplementing
either "merchandise", the "numerator", or "such merchandise", the
Court No. 01-00955 Page 9
"denominator", in that section, nor do the Views of the Commission
on Remand show otherwise. To repeat,
[t]he importers that submitted data on the modified scope
accounted for 94.9 percent U.S. imports of wire rod from
the subject countries in 2000 and 88.9 percent of imports
from all countries in 2000.6
Whereupon the percentages of total imports from all countries for
Egypt, Germany, South Africa, and Venezuela were calculated and
reported therein and quoted hereinabove.
ANSDK interprets the ITC's reaction to slip opinion 02-59
as "discomfort"7 purportedly so "severe"8 as to have engendered
"misunderstanding"9 and "significant difficulties"10 in reading it
correctly. In short, ANSDK argues that "the Commission did not do
what the Court instructed."11 It makes this argument by pointing
out that this court did not direct the ITC "to create a new record
based on events occurring months later"12, or "to reopen the record
eight months later and pretend that a different record existed
before the Commission in October, 2001"13, or to "create makeshift
6
Id. at 11 (footnote omitted).
7
ANSDK Comments, pp. 1, 2, 4.
8
Id. at 2.
9
Id. at 4.
10
Id. at 5.
11
Id. at 9.
12
Id. at 5.
13
Id. at 6.
Court No. 01-00955 Page 10
data bases for individual issues."14 Of course, slip opinion 02-59
would not and did not direct the agency in such a manner. Rather,
it left reconsideration of the issue of negligibility up to the
discretion of the ITC in the light of the law and the facts and
circumstances discussed therein. And the court does not now find
that the Views of the Commission on Remand are somehow violative of
that opinion and order.
ANSDK recites in haec verba Defendant's Motion for Recon-
sideration and Stay dated July 22, 2002 with apparent approval and
support. But that motion was carefully weighed and then denied by
the court on August 7, 2002. To the extent ANSDK now seeks in its
own right reconsideration of slip opinion 02-5915, suffice it to
state that all of the points raised have already been found
wanting of any relief at this stage of the proceedings.
Sidor points out that slip opinion 02-59 did not order
the defendant to re-open its record and argues that, for it to have
done so on its own, was unlawful and
broadened the implications of the Court's decision such
that the legitimacy of all future Commission negative
preliminary determinations will be judged based on later
developed data.
Sidor Objections, p. 5. The court has difficulty accepting this
prophecy on the record developed.
14
Id. at 9.
15
See id. at 10-13.
Court No. 01-00955 Page 11
Be that as it may, Sidor also projects from the record
that imports of subject merchandise from Germany will imminently
account for more than three-percent of total imports, thereby
excluding them from cumulation with those from Egypt, South Africa,
and Venezuela. Apparently, this argument to the effect that the
ITC first consider negligibility in the context of threat of
material injury pursuant to 19 U.S.C. §1677(24)(A)(iv) was made to
the agency, which declined to do so, given the structure and
language of section 1677(24)(A) as a whole. See Views of the Com-
mission on Remand, pp. 11-12, n. 33. And the court cannot conclude
that this declination by the ITC was not in accordance with law.
The Views of the Commission on Remand proceed then to
report the considerations of fungibility, geographic overlap,
channels of distribution, and simultaneous presence of domestic
like product and subject imports in concluding that there is a
reasonable overlap among them from Egypt, South Africa, and
Venezuela and other subject imports, and between all of them and
the domestic like product.16 Finally, in determining that there is
a reasonable indication that the domestic industry is materially
injured by reason of subject imports from Egypt, South Africa, and
Venezuela that are allegedly sold in the United States at less than
fair value, the ITC assessed the conditions of competition, the
volume and price effects of the cumulated subject imports, and the
impact of cumulated subject imports.
16
See Views of the Commission on Remand, pp. 12-19.
Court No. 01-00955 Page 12
Sidor points out that the only reason the ITC found
imports from Egypt, South Africa, and Venezuela not to be negligi-
ble is because it aggregated them with those from Germany. In
addition to contesting the negligibility of the German imports and
therefore their cumulation, as indicated above, Sidor takes the
position that subject imports from Venezuela have remained negligi-
ble in their own right and should not be cumulated because, of the
foregoing factors, the ITC misinterpreted or misapplied fungibil-
ity, geographic overlap, channels of distribution, and domestic-
market trends. In sum, Sidor contests the presence of substantial
evidence on the record in support of the ITC's cumulation of
subject imports from Venezuela. See generally Sidor Objections,
pp. 21-24. But that standard applies to final Commission determi-
nations per 19 U.S.C. §1516a(b)(1)(B)(i), whereas the standard of
review for the preliminary determination at bar remains more
narrow, to wit, whether or not it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. See
19 U.S.C. §1516a(b)(1)(A). The court cannot and therefore does not
conclude that the Views of the Commission on Remand run aground for
any of these reasons, given the fleeting statutory mandate that the
ITC determine preliminarily whether there is at least a "reasonable
indication" that an industry in the United States is materially
injured by reason of imports of subject merchandise that are not
negligible. 19 U.S.C. §1673b(a)(1).
Court No. 01-00955 Page 13
III
In view of the foregoing, the Views of the Commission on
Remand should be affirmed. Final judgment will enter accordingly.
So ordered.
Dated: New York, New York
September 13, 2002
________________________________
Judge