Co-Steel Raritan, Inc. v. United States International Trade Commission

Slip Op. 02 - 59

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - - x
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.
- - - - - - - - - - - - - - - - - - - - x

Opinion & Order

[Plaintiffs' motion for judgment on the agency
record denied in part and granted in part;
remanded to the International Trade Commission.]

Decided: June 20, 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, Thomas Peele and Kristi
K. Hansen) 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 Jonathon Seiger) for
intervenor-defendant Siderurgica del Orinoco, C.A.

AQUILINO, Judge: In this action, duly commenced pursuant

to 19 U.S.C. §1516a(a)(1)(C) and 28 U.S.C. §1581(c), the plaintiffs
Court No. 01-00955 Page 2

seek judicial review and reversal of the (preliminary) determina-

tion of the International Trade Commission ("ITC") that imports of

carbon and certain alloy steel wire rod from Egypt, South Africa

and Venezuela that are alleged to be sold in the United States at

less than fair value are negligible and therefore that its in-

vestigations with regard to those countries be terminated. See

Int'l Trade Comm'n, 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).

The only cause of action pleaded in plaintiffs' complaint

is that this termination is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law within the

meaning of 19 U.S.C. §1516a(b)(1)(A). And they have served and

filed a motion pursuant to CIT Rule 56.2 for judgment upon the

record compiled by the Commission, arguing, among other things, (i)

that its reliance upon data that were not available to them pre-

ceding the filing of their petition was unlawful; (ii) that the

ITC's conclusion that certain imports in question did not exceed in

the aggregate seven percent of all imports during the period of

investigation selected was erroneous; and (iii) that its determina-

tion that imports from Egypt, South Africa and Venezuela would not

imminently exceed the statutory negligibility thresholds was

arbitrary and capricious.
Court No. 01-00955 Page 3

I

The above-named plaintiffs claim to be domestic producers

of the merchandise that is allegedly being imported into the United

States at less than fair value and which filed petitions for relief

therefrom with the International Trade Administration, U.S. Depart-

ment of Commerce ("ITA") and with the ITC. They were filed on

August 31, 2001, and drew upon available industry data for the

period July 2000 through June 2001. The effective date for ini-

tiation of the Commission's preliminary investigation was thus

reported to be August 31st. See, e.g., Int'l Trade Comm'n, 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. 47,036, 47,037

(Sept. 10, 2001). And, to

evaluate negligibility, [the ITC] considered official
Commerce import statistics for the period August 2000
through July 2001.37 . . .

* * *
37
. . . [T]he Commission has interpreted the statutory
provision regarding the time period that [it] should
examine for negligibility purposes to end with the last
full month prior to the month in which the petition is
filed, if those data are available.

Int'l Trade Comm'n, Carbon and Certain Alloy Steel Wire Rod From

Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South

Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, USITC

Pub. 3456, p. 8 (Oct. 2001). When those data proved available, the
Court No. 01-00955 Page 4

commissioners took this stated approach -- over the protest of the

petitioners, which urged the ITC to examine imports from July 2000

to June 2001, the period that was the basis of their petitions.

See id., n. 37. That issue is raised anew by them now herein.

The plaintiffs argue that the data for July 2001 only

became available after the petitions had been filed and thus that

the Commission's reliance thereon was not in accordance with law.

They point to the following provision in the Trade Agreements Act

of 1979, as amended:

(24) Negligible imports

(A) In general

(i) Less than 3 percent

Except as provided in clauses (ii) and
(iv), imports from a country of merchandise
corresponding to a domestic like product
identified by the Commission are "negligible"
if such imports account for less than 3 per-
cent of the volume of all such merchandise
imported into the United States in the most
recent 12-month period for which data are
available that precedes--

(I) the filing of the petition under
section 1671a(b) or 1673a(b) of this title
. . ..

19 U.S.C. §1677(24).

On its face, this legislation is neither ambiguous nor

executory. Nonetheless, the plaintiffs press their position that

the ITC "alter[ed]" their timeframe and, in doing so, "reached
Court No. 01-00955 Page 5

different conclusions on negligibility from those set forth in the

petition." Plaintiffs' Brief, p. 20.

In essence, the question for this court comes down
to whether the statutory language referring to "the most
recent 12-month period for which data are available that
precedes the filing of the petition" means the most
recent 12-month period "for which data are available" to
the domestic industry preceding the filing of the
petition, or "for which data are available" to the
Commission subsequent to the filing of the petition, so
long as the 12-months of data themselves precede the
filing.

Id. at 22 (emphasis in original). Or, as they articulate elsewhere

in their excellent brief,

the question presented here [is] whether the statutory
reference to reliance on data available preceding the
filing of the petition permits the Commission to examine
data that was [sic] not available preceding the filing of
the petition.

Id. at 24. In attempting to resolve the controlling question,

however couched, the court accepts plaintiffs' contentions that the

statutory requirement that the negligibility calculation be

premised on data available preceding the filing of a petition is a

logical means of requiring petitioners to ensure that the countries

considered as targets for antidumping relief actually surpass the

statutory minimum(s) before they are formally charged1; that, typ-

ically, the most recent data that are available prior to filing

will not be for the twelve months immediately preceding that

1
See Plaintiffs' Brief, p. 19.
Court No. 01-00955 Page 6

moment, rather for a 12-month period slightly older in time2; that

a domestic U.S. industry must determine in good faith whether to

include certain countries in any petition for relief from injurious

dumping3; that such an industry can only base its allegations in a

petition on data that are available before its filing, "not on

speculation as to possible shifts in imports that might occur sub-

sequently"4; and that, under article 5.8 of the Uruguay Round

Agreement on Implementation of Article VI of the General Agreement

on Tariffs and Trade5, negligibility was contemplated as a thres-

hold determination to the initiation of a government investiga-

tion.6

On the other hand, the court cannot concur with other

representations by the plaintiffs, including

[h]ad Congress wanted the Commission to rely on the most
recent 12-month period prior to the filing of the
petition, as the Commission has interpreted this statu-
tory passage, it would not have included the phrase "for
which data are available"7,

and "[t]he Commission's reading of this provision renders th[at]

phrase . . . surplusage"8, and,

2
See id., n. 6.
3
Cf. id. at 20, 23.
4
Id. at 23.
5
April 15, 1994. See H.R. Doc. No. 103-316, vol. 1, p.
1460 (1994).
6
Plaintiffs' Brief, p. 21.
7
Id. at 22.
8
Id.
Court No. 01-00955 Page 7

[b]y interpreting the statute as it has, the Commission
has effectively required domestic industries to engage in
conjecture as to what shifts in imports might occur in
the month or two for which data are unavailable at the
time the petition is filed, but which the Commission may
later rely upon to reach its negligibility decision.
Under this approach, the domestic industry must undertake
a speculative filing to the extent it is suffering
problems from imports with small but, collectively,
injurious and fluctuating volumes. Rather than requiring
the domestic industry to assess negligibility based on
actual data available to it when the petition is filed,
the Commission's interpretation of the statute would
promote speculation and risk-taking by domestic producers
about whether certain countries would or would not be
found to surpass negligibility thresholds with the addi-
tion of future import statistics.9

Obviously, this slant is too severe. The statute neither promotes

speculation and risk-taking by domestic producers nor permits such

an approach by the ITC. Once a petition gets filed, presumably in

good faith, the burden to assess the salient facts shifts to the

Commission. That process does take some days, during which the

plaintiffs concede that data for a period closer to a petition's

moment of filing may become available in regular course10 to the

ITC. This is the case at bar, and nothing other than argument by

the plaintiffs stands in the way of reference to such data. The

statute quoted above does not preclude it, nor is there a showing

of a contrary intent on the part of Congress. Indeed, the ante-

9
Id. at 23-24.
10
Cf. id. at 19, n. 6.
Court No. 01-00955 Page 8

cedent (or subject) of the verb "precedes" is singular, not "data",

presuming the legislature like this court is committed to the

concept that that noun is the plural of Latin-derived datum and

therefore could not and did not dictate the foregoing, adopted

conjugation. Moreover, plaintiffs' thesis does not explain away

the legislated inclusion of "most recent".

Hence, the ITC's statutory responsibility, triggered by

plaintiffs' petition, was to determine whether or not imports from

any of the countries targeted were "negligible" for a 12-month

period11 before August 31, 2001. In other words, the focus of 19

U.S.C. §1677(24)(A)(i) et seq. is not on the Commission, rather on

the most recent year's worth of available data. The ITC reports,

USITC Pub. 3456, p. 8, n. 37, that its approach herein was follow-

ing Large Newspaper Printing Presses and Components Thereof from

Germany and Japan, USITC Pub. 2988, p. 23, n. 157 (Aug. 1996)

("since the statute indicates that the period to be used is the

twelve-month period preceding the filing of the petition, it is

reasonable to conclude that the language of the statute suggests

that the 12 month period should end with the last full month prior

to the month in which the petition is filed"), and Hot-Rolled Steel

Products from Argentina, China, India, Indonesia, Kazakhstan,

Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine,

11
The record does not confirm that data younger than July
31, 2001 were actually available when the ITC rendered its de-
termination now at bar. Cf. id.
Court No. 01-00955 Page 9

USITC Pub. 3381, p. 7, n. 38 (Jan. 2001) ("The data we have used

. . . are the most recent and accurate data available for a 12-

month period preceding the filing of the petition"), as well as

Steel Authority of India, Ltd. v. United States, 25 CIT , 146

F.Supp.2d 900 (2001). But, as the plaintiffs properly point out

herein, this last matter did not answer their controlling question,

supra, only that the Commission correctly rejected a demand therein

that it consider data available for months after the date of that

underlying petition's filing. Compare Plaintiffs' Brief, p. 24

with 25 CIT at , 146 F.Supp.2d at 909-10.

Be these references as they may, this court cannot con-

clude in this action that the ITC's analysis of the issue of

negligibility via data that became available in regular course for

a 12-month pre-petition period one month younger than that relied

upon by the petitioner-plaintiffs was not in accordance with law.

II

Plaintiffs' counsel are astute observers of the shifting

sands of international trade, and they well know that a lawful

advance of even one month in time can alter their equation for

relief. Nonetheless, they take the position that the Commission's

determination for the period it selected was erroneous, in partic-

ular because it did not properly account for imports from Germany.

That is, the ITC (a) overlooked data revisions of respondents from

that country and (b) refused to consider the impact of a request by
Court No. 01-00955 Page 10

the petitioners that certain steel-wire products not be included in

the ITA investigation12.

The general rule for the Commission has been that it

determine, preliminarily within 45 days of a petition's filing,

whether there is a "reasonable indication" that an industry in the

United States is materially injured, or is threatened with material

injury, by reason of imports of the subject merchandise and that

those imports are not negligible. 19 U.S.C. §1673b(a). And the

Court of Appeals for the Federal Circuit has long denied that

the statutory phrase "reasonable indication" means the
same as a mere "possibility", or that it suggests "only
the barest clues or signs needed to justify further in-
quiry." The statute calls for a reasonable indication of
injury, not a reasonable indication of need for further
inquiry.

American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.

1986). Hence, that court has construed this court's standard for

review as follows:

Since the enactment of the 1974 [Trade] Act, ITC has
consistently viewed the statutory "reasonable indication"
standard as one requiring that it issue a negative deter-
mination . . . only when (1) the record as a whole con-
tains clear and convincing evidence that there is no
material injury or threat of such injury; and (2) no
likelihood exists that contrary evidence will arise in a
final investigation. That view, involving a process of
weighing the evidence but under guidelines requiring
clear and convincing evidence of "no reasonable indica-
tion", and no likelihood of later contrary evidence,
provides fully adequate protection against unwarranted
terminations. Indeed, those guidelines weight the scales

12
The plaintiffs also claim that Indonesia had been part
of their equation on negligibility but that imports from that
country became a nonfactor as a result of the one-month shift.
See Plaintiffs' Brief, p. 20.
Court No. 01-00955 Page 11

in favor of affirmative and against negative determina-
tions. Under the appropriate standard of judicial
review, ITC's longstanding practice must be viewed as
permissible within the statutory framework.

Id. (emphasis in original). And the Commission claims to continue

to adhere to this approach today. See, e.g., Memorandum of

Defendant USITC [herein] passim. Cf. Torrington Co. v. United

States, 16 CIT 220, 790 F.Supp. 1161 (1992), aff'd, 991 F.2d 809

(Fed.Cir. 1993); Ranchers-Cattlemen Action Legal Foundation v.

United States, 23 CIT 861, 74 F.Supp.2d 1353 (1999), appeal dock-

eted, No. 00-1186 (Fed.Cir. Feb. 3, 2000). Compare also Usinor

Industeel, S.A. v. United States, 26 CIT , , Slip Op. 02-39,

p. 25 (April 29, 2002)(the ITC "must apply the common meaning of

'likely' - that is, probable - in conducting . . . sunset review

analyses")(emphasis in original). Nor do the plaintiffs press for

a different standard in this action. See, e.g., Plaintiffs' Brief,

p. 15; Plaintiffs' Reply Brief passim. Indeed, the Statement of

Administrative Action ("SAA") promulgated in conjunction with

passage of the Uruguay Round Agreements Act, Pub. L. No. 103-465,

108 Stat. 4809 (1994), is also in accord with this approach. See

H.R. Doc. No. 103-316, vol. 1, p. 857 (1994).

Notwithstanding this general concurrence, the memorandum

of law filed by the defendant in this action has precipitated a

response by the plaintiffs that the

most fundamental and pervasive flaw evidenced by the
Commission's attempted defense of its negligibility
analysis is its mischaracterization of, and failure to
Court No. 01-00955 Page 12

apply properly, the standard of review applicable to a
negligibility determination. While acknowledging that
"[i]t has long been established that in applying the
statutory standard for making a preliminary determination
regarding material injury or threat of material injury,
American Lamb provides the evidentiary standard" . . . ,
the [ITC]'s arguments misapply the American Lamb standard
. . . and focus instead on assertions that its
negligibility decision must be sustained because it was
"reasonable". . ..

Plaintiffs' Reply Brief, p. 1 (citations omitted).

A

The gist of plaintiffs' initial disagreement with respect

to Germany was that the ITC did not pay attention to the written

responses to their petition on behalf of producers of subject

merchandise in that country and that that disregard "has been de-

vastating in this case." Plaintiffs' Brief, p. 29. That is, if

the

Commission, in a final investigation, finds that imports
from Germany in the August 2000-July 2001 period are
[negligible], it will terminate the German investigation
at that time because it will no longer have other
countries . . . with which to aggregate German imports.
On the other hand, had the [ITC] faithfully applied the
standard established in American Lamb, it would have
continued all of these investigations, finding that it
could not say there was no likelihood that additional
evidence contrary to its preliminary conclusions would
arise in a final investigation on the issue of negligibi-
lity. The Commission's failure to properly apply the
American Lamb standard on this issue justifies a reversal
of [it]s negligibility decision.

Id. at 29-30.

Plaintiffs' petitions were predicated upon Commerce

Department data. Not surprisingly, German respondents thereto
Court No. 01-00955 Page 13

sought to downplay the numbers attributed to them. Irrespective of

that attempt, the defendant points out that its staff report

explains that the official Commerce Department statistics it relied

on were based on imports under certain Harmonized Tariff Schedule

subheadings not including the one (7213.99.0060) in the petition

which was contested by the German respondents. Hence,

[n]o further explanation was necessary, particularly when
German Respondent[s] acknowledged at the staff conference
that "the tariff categories that are being used to
calculate total imports are different than the ones that
were alleged [by] the Petitioners."13

B

The plaintiffs also complain that the Commission refused

to consider the impact of their request that the ITA modify the

scope of its investigation, whereupon they argue that it

failed to apply the standard of review set forth in
American Lamb and in the SAA. The American Lamb standard
requires a finding that "no likelihood exists that any
contrary evidence will arise in a final investigation."
. . . Here, the [ITC] was presented with affirmative
evidence that an amendment to the scope of the case had
been requested and that such an amendment would directly
affect the negligibility calculation. Even if the
Commission did not believe that the evidence presented by
petitioners was sufficient to justify relying on that
evidence as dispositive of the issue, at a minimum it
[was] prevented . . . from concluding that "no likeli-
hood" exists that evidence contrary to its negligibility
conclusion would arise in a final investigation.

The SAA makes clear that Congress did not expect the
[ITC] to terminate a case at the preliminary stage of
investigation on grounds of negligibility where informa-
tion obtained in the final investigation could show that

13
Memorandum of Defendant USITC, p. 31 (footnote omitted).
The plaintiffs now accept defendant's position on this particular
issue. See Plaintiffs' Reply Brief, p. 9, n. 9.
Court No. 01-00955 Page 14

imports exceed the negligibility threshold. . . . The
SAA specifically admonishes the Commission not to
terminate a case where there is any uncertainty regarding
like product designations that might lead to a different
negligibility finding in a final analysis.

Plaintiffs' Brief, pp. 31-32 (citations omitted). See also Plain-

tiff's Reply Brief, pp. 8-18.

As indicated above, the ITC had 45 days to reach its

preliminary determination. Plaintiffs' petitions were filed on

August 31, 2001. Their letter request to the ITA14 was forwarded

on October 9, 2001, by which date counsel were constrained to

"apologize"15 for its timing. Indeed, not surprisingly, the ITA did

not resolve that request prior to the Commission's statutory

deadline. Hence, the latter was left to consider the matter on the

run, and notwithstanding its stated recognition that the ITC "must

defer to Commerce's definition of the scope of investigation."

Memorandum of Defendant USITC, p. 34, citing USEC, Inc. v. United

States, 25 CIT , 132 F.Supp.2d 1 (2001); Algoma Steel Corp. v.

United States, 12 CIT 518, 688 F.Supp. 639 (1988), aff'd , 865 F.2d

240 (Fed.Cir.), cert. denied, 492 U.S. 919 (1989); Mitsubishi

Electric Corp. v. United States, 898 F.2d 1577 (Fed.Cir. 1990).

The Commission was also left to consider the matter upon

a representation in the October 9th transmittal letter that the

"only record evidence that exists is petitioners' good faith esti-

14
Public Document ("PubDoc") 50, Attachment.
15
PubDoc 50, p. 1. See also id. at 6.
Court No. 01-00955 Page 15

mate, based on their market knowledge and discussion with industry

participants". PubDoc 50, p. 5. That is, evidence would have to

be collected for the final determination. See id. The commission-

ers apparently were unwilling to speculate as to where any such

evidence might lead. Indeed, as enacted by Congress and inter-

preted by the courts, the law disfavors speculation and

conjecture16, but it also does favor affirmative preliminary deter-

minations of material injury or the threat thereof.

The record indicates that the ITC gave some consideration

as to whether the ITA might grant the petitioners' proposed

amendment but found that it was based upon end-use analysis17 and

thus accepted their own admission therein of the ITA's "general

reluctance to use end-use to define scope coverage because of in-

herent enforcement difficulties and prior experiences with end-use

certification procedures." PubDoc 50, Attachment, p. 4. See USITC

Pub. 3456, p. 9, n. 41.

(1)

Any imports during the above-affirmed period of investi-

gation from Germany (or any other country named in the petition(s))

that were indeed "negligible", as defined in general by 19 U.S.C.

§1677(24)(A)(i), supra, engendered Commission consideration of them

under the statutory exception to the general rule, to wit:

16
See, e.g., 19 U.S.C. §1677(7)(F)(ii); H.R. Doc. No. 103-
316, vol. 1, p. 855; American Lamb Co. v. United States, 785 F.2d
994, 1001 (Fed.Cir. 1986).
17
See generally PubDoc 50, Attachment.
Court No. 01-00955 Page 16

Imports that would otherwise be negligible under
clause (i) shall not be negligible if the aggregate
volume of imports of the merchandise from all countries
described in clause (i) with respect to which investiga-
tions were initiated on the same day exceeds 7 percent of
the volume of all such merchandise imported into the
United States during the applicable 12-month period.

19 U.S.C. §1677(24)(A)(ii). And those imports facilitated

plaintiffs' equation pursuant to this subsection. Furthermore, the

statute provides:

(iii) Determination of aggregate volume

In determining aggregate volume under clause (ii) or
(iv), the Commission shall not consider imports from any
country specified in paragraph (7)(G)(ii).[18]

(iv) Negligibility in threat analysis

Notwithstanding clauses (i) and (ii), the Commission
shall not treat imports as negligible if it determines
that there is potential that imports from a country de-
scribed in clause (i) will imminently account for more
than 3 percent of the volume of all such merchandise
imported into the United States, or that the aggregate
volumes of imports from all countries described in clause
(ii) will imminently exceed 7 percent of the volume of
all such merchandise imported into the United States.
The Commission shall consider such imports only for pur-
poses of determining threat of material injury.

Obviously, timing is an element of this statute, as it is

of this action, the commencement of which, to this court's

knowledge, has not impeded the administrative process ordained by

Congress and summarized by the court of appeals in American Lamb,

785 F.2d at 998-99. In their reply brief, the plaintiffs predicted

18
This statutory subsection sets forth exceptions to the
prescribed Commission cumulation for determining material injury.
Court No. 01-00955 Page 17

that the ITA would modify the scope of this case in response to

their request therefor, and that prediction has proven prescient

sub nom. Dep't of Commerce, 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). According

to this notice, the petitioners

requested the scope of the investigation be amended to
exclude high carbon, high tensile 1080 grade tire cord
and tire bead quality wire rod actually used in the
production of tire cord and tire bead, as defined by
specific dimensional characteristics and specifica-
tions[19,]

which seemingly has been granted. See generally 67 Fed.Reg. at

17,385 (Scope of the Investigation).

The ITC record currently before this court reflects that,

based upon official Commerce Department statistics, imports of

subject merchandise from Germany constituted 3.1 percent of the

total of all such imports for the period August 2000 to July 2001.

See USITC Pub. 3456, p. IV-7. But that percentage was computed

before the ITA decided to modify the scope of the investigation,

and the plaintiffs have taken the position from the beginning that

any such amendment would reduce the German percentage to less than

three and thereby require aggregation of that country's then-

negligible number with those of other lands similarly situated, in

particular, Egypt, South Africa and Venezuela, the percentages for

19
67 Fed.Reg. at 17,384. See supra n. 14.
Court No. 01-00955 Page 18

which have been listed as 1.4, 2.6, and 2.120, respectively, in a

table to the ITC staff report.

The court has no way of finally resolving now this

circumstance. It cannot completely overlook this development in

regular course, given the nature of plaintiffs' claims and

defendant's stated recognition herein that it "must defer to

Commerce's definition of the scope of investigation."21 The court

also cannot overlook the 1994 Statement of Administrative Action

that advised of an intent to preclude termination of a preliminary

investigation when, for example,

imports are extremely close to the relevant quantitative
thresholds and there is a reasonable indication that data
obtained in a final investigation will establish that
imports exceed the quantitative thresholds.

H.R. Doc. No. 103-316, vol. 1, p. 857. It cannot find that the 3.1

percent attributed to Germany is not now "extremely close" to the

20
See USITC Pub. 3456, p. IV-7. The court notes in passing
that the next-higher percentage to these three and to that listed
for Germany is the 3.8 set forth for Indonesia.
21
While the response brief on behalf of intervenor-defend-
ant Siderurgica del Orinoco, C.A. ("Sidor") takes the position
(at pages 25-26) that the ITC has authority to determine the
"domestic like product" and is not circumscribed by the ITA's
scope of investigation, the court does not accept intervenor-
defendant's resultant contention that "an amendment to the De-
partment's scope has no necessary bearing on the Commission's
negligibility analysis". Sidor Response Brief, p. 23. Compare
Plaintiffs' Reply Brief, p. 15.

Independent of this argument, Sidor does note, as it must,
that "[m]any aspects of an investigation . . . can change, and
indeed do change". Sidor Response Brief, p. 17, n. 16.
Court No. 01-00955 Page 19

"less than 3 percent of the volume of all such merchandise imported

into the United States" specified in the statute quoted above, 19

U.S.C. §1677(24)(A)(i).22 Finally, if, as the court of appeals has

affirmed in American Lamb, supra, the

ITC has consistently viewed the statutory "reasonable
indication" standard as one requiring that it issue a
negative determination . . . only when (1) the record as
a whole contains clear and convincing evidence that there
is no material injury or threat of such injury; and (2)
no likelihood exists that contrary evidence will arise in
a final investigation . . . [and as] involving a process
of weighing the evidence but under guidelines requiring
clear and convincing evidence of "no reasonable indica-
tion", and no likelihood of later contrary evidence,23

this standard does not now sustain the Commission's termination of

its preliminary investigation of imports of carbon and certain

alloy steel wire rod from Egypt, South Africa and Venezuela that

are alleged to be sold in the United States at less than fair

value.

III

Hence, this action must be, and it hereby is, remanded to

the International Trade Commission for reconsideration of the

aforesaid termination, given the ITA's above-cited amendment of the

scope of investigation. The defendant may have until August 2,

2002 for such reconsideration and to report the results thereof to

22
That part of the record emphasized by the plaintiffs (and
reproduced as Confidential Appendix 10 to their Rule 56.2 motion)
reflects a 2.91 percent ratio for imports from Germany, albeit
for the petition period July 2000 to June 2001.
23
785 F.2d at 1001 (emphasis in original).
Court No. 01-00955 Page 20

the other parties and to the court, whereupon any party may serve

and file written comments thereon by August 12, 2002.

So ordered.

Decided: New York, New York
June 20, 2002

________________________________
Judge