357 F.3d 1294 (Fed. Cir. 2004), 03-1006, Co-Steel Raritan, Inc. v. International Trade Com'n.

Docket Nº:03-1006, 03-1099.
Citation:357 F.3d 1294
Party Name:CO-STEEL RARITAN, INC. (now known as Gerdau Ameristeel Corp.), GS Industries (now known as Georgetown Steel Company, LLC), Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc., Plaintiffs-Appellees, v. INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, and Alexandria National Iron and Steel Company, Defendant-Appellant, and Sid
Case Date:January 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1294

357 F.3d 1294 (Fed. Cir. 2004)

CO-STEEL RARITAN, INC. (now known as Gerdau Ameristeel Corp.), GS Industries (now known as Georgetown Steel Company, LLC), Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc., Plaintiffs-Appellees,

v.

INTERNATIONAL TRADE COMMISSION, Defendant-Appellee,

and

Alexandria National Iron and Steel Company, Defendant-Appellant,

and

Siderurgica Del Orinoco, C.A., Defendant-Appellant.

Nos. 03-1006, 03-1099.

United States Court of Appeals, Federal Circuit

January 26, 2004

Page 1295

Kathleen W. Cannon, Collier Shannon Scott, PLLC, of Washington, DC, argued for plaintiffs-appellees Co-Steel Raritan, Inc (now known as Gerdau Ameristeel Corp.), et al. With her on the brief were Paul C. Rosenthal and R. Alan Luberda. Of counsel was John M. Herrmann.

Page 1296

Kevin M. O'Brien, Baker & McKenzie, of Washington, DC, argued for defendant-appellant Alexandria National Iron and Steel Company. With him on the brief was Thomas Peele.

David P. Houlihan, White & Case, LLP, of Washington, DC, for defendant-appellant Siderurgica Del Orinoco, C.A. With him on the brief were Richard J. Burke and Frank H. Morgan.

Karen V. Driscoll, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for defendant-appellee United States International Trade Commission. With her on the brief were Lyn M. Schlitt, General Counsel; and James M. Lyons, Deputy General Counsel.

Before LOURIE, RADER, and SCHALL, Circuit Judges.

Opinion

Concurring in part and dissenting in part opinion filed by Circuit Judge LOURIE.

SCHALL, Circuit Judge.

This is an antidumping case. Alexandria National Iron and Steel Company ("Alexandria") and Siderurgica Del Orinoco, C.A. ("Sidor") appeal the 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 the United States International Trade Commission ("Commission") on remand that imports of carbon and alloy steel wire rod ("wire rod") from Egypt, South Africa, and Venezuela during the period of investigation were non-negligible under a revised scope of investigation. Carbon and Certain Alloy Steel Wire Rod from Egypt, South Africa, and Venezuela, Inv. Nos. 731-TA-955, -960, -963, USITC Pub. 3543 (Oct.2002) ("Remand Determination"). Based upon that determination, the Commission concluded that, under 19 U.S.C. § 1673b(a)(1) (2000),1 there was a reasonable indication that an industry in the United States would suffer material injury from imports of wire rod from those three countries. Id.

The Commission originally had issued a preliminary determination in which it found that imports of wire rod from Egypt, South Africa, and Venezuela were negligible. Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, Inv. Nos. 701-TA-417-421, 731-TA-953-963, USITC Pub. 3456 (Oct.2001) ("Preliminary Determination"). The antidumping investigation as to imports from those countries therefore had been terminated, in accordance with 19 U.S.C. § 1673b(a)(1). 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, 2001 WL 1301164 (Oct. 29, 2001) ("Preliminary Determination Order"). On June 20, 2002, however, following an appeal of the Preliminary Determination Order by plaintiffs-appellees, the Court of International Trade ordered a remand and a re-determination of negligibility with respect to imports from Egypt, South Africa, and Venezuela. It did so based upon the fact that six months after the preliminary determination, where the Commission had found such imports to be negligible, the United States Department of Commerce ("Commerce") amended the scope of the anti-dumping investigation. Co-Steel Raritan, Inc. v. U.S. Int'l Trade Comm'n,

Page 1297

244 F.Supp.2d 1349 (2002) (" Co-Steel I "). The Commission's Remand Determination followed in the wake of Co-Steel I. The Commission's finding after remand that imports of wire rod from Egypt, South Africa, and Venezuela were not negligible was based upon additional import data that was gathered in response to Commerce's revised scope of investigation.

On appeal, Alexandria and Sidor, joined by the Commission (collectively "Appellants and the Commission"), argue that the decision of the Court of International Trade in Co-Steel II should be reversed because the court erred in Co-Steel I when it remanded the Commission's preliminary determination. According to Appellants and the Commission, the remand order was contrary to 19 U.S.C. § 1673b(a)(1), which provides, in relevant part, that the Commission is to make its preliminary determination as to material injury "based upon the information available to it at the time of the determination...." Appellants and the Commission argue that the Court of International Trade abused its discretion in Co-Steel I when it directed the Commission on remand to consider circumstances arising after the preliminary determination. Because we agree that the Court of International Trade erred in Co-Steel I when it remanded the preliminary determination, we vacate the court's decision in Co-Steel II and remand the case to the court for further proceedings consistent with this opinion.

BACKGROUND

I.

Generally, "American industries may petition for relief from imports that are sold in the United States at less than fair value ('dumped')...." Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1368 (Fed.Cir. 2002) (citing 19 U.S.C. § 1675b). Commerce determines whether sales have been made at less than fair value, 19 U.S.C. § 1673(1), whereas the Commission determines whether the imported merchandise materially injures or threatens to materially injure the pertinent domestic industry. Id. § 1673d(b)(1). If both inquiries are answered in the affirmative, Commerce issues the relevant antidumping duty order. Id. § 1673d(c)(2).

An antidumping investigation is typically initiated when a domestic industry files a petition requesting that Commerce conduct an investigation into possible dumping. Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1089 (Fed.Cir. 2002). The petition initially determines the scope of the investigation. Section 1673a(b)(1) of title 19 provides that the "petition may be amended at such time and upon such terms as [Commerce] and the [Commission] may permit." Commerce makes an initial determination as to whether the petition "contains information ... supporting the allegations." Id. § 1673a(c)(1)(A)(i). Commerce then must make a preliminary determination "of whether there is a reasonable basis to believe that or suspect that the merchandise is being sold, or is likely to be sold, at less than fair value." Id. § 1673b(b)(1)(A).

At the same time that Commerce is making its preliminary determination as to sales at less than fair value, the Commission must make a preliminary determination as to 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 imports of the subject merchandise are not negligible." Id. § 1673b(a)(1). Imports of "subject merchandise" from a country are "negligible" if they "account for less than 3 percent of the volume of all such merchandise imported into the United States" during the relevant period. Id.

Page 1298

§ 1677(24)(A)(i). Section 1677(24)(A) of title 19, however, contains an exception with respect to negligibility. Imports of "subject merchandise" from a country that would otherwise be negligible because they account for less than three percent of all such imports are not negligible if the total volume of imports of subject merchandise from all countries under investigation having imports not exceeding three percent exceeds seven percent of the volume of all such merchandise imported into the United States. Id. § 1677(24)(A)(ii). If the Commission determines that "imports of the subject merchandise are negligible," the antidumping investigation is terminated. Id. § 1673b(a)(1). The term " "subject merchandise" is defined as the class or kind of merchandise that is within the scope of an investigation...." Id. § 1677(25).

Following preliminary determinations by Commerce and the Commission that do not result in termination of the investigation, Commerce makes a final determination "of whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value." Id. § 1673d(a)(1). For its part, the Commission makes a final determination as to material injury or threat of material injury. Id. § 1673d(b)(1). If the Commission determines that such injury exists, Commerce issues the appropriate antidumping order. Id. § 1673d(c)(2).

II.

Alexandria and Sidor are Egyptian and Venezuelan producers, respectively, of wire rod. Wire rod is a hot-rolled, intermediate steel product of circular (or approximately circular) cross-section. It is used to make a wide variety of products, ranging from clothes hangers and chain link fencing to highly specialized products, such as tire cord. Co-Steel Raritan, Inc. (now known as Gerdau Ameristeel Corp), GS Industries (now known as Georgetown Steel Company, LLC), Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc. (collectively "Co-Steel") are domestic producers of wire rod.

On August 31, 2001, Co-Steel filed petitions alleging that an industry in the United States was materially injured (i) by reason of...

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