Co-Steel Raritan, Inc. v. U.S. International Trade Commission

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