Co-Steel Raritan v. U.S. Intern. Trade

Decision Date20 June 2002
Docket NumberCourt No. 01-00955.,Slip Op. 02-59,
PartiesCO-STEEL RARITAN, INC., GS Industries, Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc., Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant, and Alexandria National Iron and Steel Company and Siderurgica Del Orinoco, C.A., Intervenor-Defendants.
CourtU.S. Court of International Trade

Collier Shannon Scott, PLLC (Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda and John M. Herrmann), Washington, DC, for Plaintiffs.

Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy General Counsel, and Karen Veninga Driscoll, Attorney, United States International Trade Commission, Washington, DC, for Defendant.

Baker & McKenzie (Kevin M. O'Brien, Thomas Peele and Kristi K. Hansen), Washington, DC, 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), Washington, DC, for Intervenor-Defendant Siderurgica del Orinoco, C.A.

Opinion & Order

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 seek judicial review and reversal of the (preliminary) determination 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 investigations 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 preceding 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 determination that imports from Egypt, South Africa and Venezuela would not imminently exceed the statutory negligibility thresholds was arbitrary and capricious.

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. Department 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 initiation 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 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 percent 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 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 charged;1 that, typically, the most recent data that are available prior to filing will not be for the twelve months immediately preceding that moment, rather for a 12-month period slightly older in time;2 that a domestic U.S. industry must determine in good faith whether to include certain countries in any petition for relief from injurious dumping;3 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 subsequently";4 and that, under article 5.8 of the Uruguay Round Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade,5 negligibility was contemplated as a threshold determination to the initiation of a government investigation.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 statutory 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,

[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 addition 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 antecedent (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...

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2 cases
  • Co-Steel Raritan v. Intern. Trade
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • January 26, 2004
    ...final decision of the United States Court of International Trade in Co-Steel Raritan, Inc., et al v. United States International Trade Commission, 24 I.T.R.D 2010, 2002 WL 31052739 (Ct. Int'l Trade 2002) ("Co-Steel II"). In that decision, the court affirmed the preliminary determination of ......
  • Georgetown Steel Co. v. U.S.
    • United States
    • U.S. Court of International Trade
    • April 1, 2003
    ...and Venezuela. Domestic petitioners appealed those terminations to this court, which concluded in Co-Steel Raritan, Inc. v. U.S. Int'l Trade Comm'n, 26 CIT ___, 244 F.Supp.2d 1349 (CIT 2002), to remand the matter to the agency for reconsideration, given the International Trade Administratio......

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