370 F.3d 1108 (Fed. Cir. 2004), 03-1320, ALTX, Inc. v. United States

Docket Nº:03-1320.
Citation:370 F.3d 1108
Party Name:ALTX, INC., DMV Stainless Usa, Inc., Salem Tube, Inc., Sandvik Steel Co., and Pennsylvania Extruded Tube Company, Plaintiffs-Appellants, and American Extruded Products Corp. and United Steelworkers of America, AFL-CIO/CLC, Plaintiffs, v. UNITED STATES and United States International Trade Commission, Defendants-Appellees, and Sumitomo Metal Industr
Case Date:June 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1108

370 F.3d 1108 (Fed. Cir. 2004)

ALTX, INC., DMV Stainless Usa, Inc., Salem Tube, Inc., Sandvik Steel Co., and Pennsylvania Extruded Tube Company, Plaintiffs-Appellants,

and

American Extruded Products Corp. and United Steelworkers of America, AFL-CIO/CLC, Plaintiffs,

v.

UNITED STATES and United States International Trade Commission, Defendants-Appellees,

and

Sumitomo Metal Industries, Ltd., Nippon Steel Corporation, Kawasaki Steel Corporation, Kobe Steel Ltd., Sanyo Special Steel Company, and NKK Corporation (now known as NKK Tubes), Defendants-Appellees.

No. 03-1320.

United States Court of Appeals, Federal Circuit

June 2, 2004

Page 1109

R. Alan Luberda, Collier Shannon Scott, PLLC, of Washington, DC, argued for plaintiffs-appellants. With him on the brief were David A. Hartquist and Jeffrey S. Beckington.

Rhonda M. Hughes, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for defendants-appellees United States, et al. With her on the brief were Lyn M. Schlitt, General Counsel; and James M. Lyons, Deputy General Counsel.

John D. Greenwald, Wilmer, Culter & Pickering, of Washington, DC, argued for defendants-appellees Sumitomo Metal Industries, Ltd., et al. With him on the brief were Robert C. Cassidy, Jr., Leonard M. Shambon and Lynn M. Fischer.

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

This is an antidumping case. Plaintiffs-Appellants Altx, Inc., DMV Stainless USA, Inc., Salem Tube, Inc., Sandvik Steel Company, and Pennsylvania Extruded Tube Company (collectively, "Altx" or the "domestic producers") appeal from the final decision of the United States Court of International Trade, Altx, Inc. v. United States, 25 I.T.R.D. (BNA) 1028 (Ct. Int'l Trade 2002) (" Altx III "), that affirmed a final negative injury determination by the International Trade Commission ("Commission"), Certain Circular Seamless Stainless Steel Hollow Products from Japan, USITC Pub. 3532, Inv. No. 731 TA 859 (Int'l Trade Comm'n Aug. 26.2002) (views on second remand) (" Second Remand Determination ").

Altx asks us to set aside the decision in Altx III, the Second Remand Determination, and a prior remand order of the

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Court of International Trade, Altx, Inc. v. United States, 24 I.T.R.D. (BNA) 1643 (Ct. Int'l Trade 2002) (" Altx II "), in order to reinstate an earlier determination of the Commission, Circular Seamless Stainless Steel Hollow Products from Japan, USITC Pub. 3475, Inv. No. 731-TA-859 (Int'l Trade Comm'n Dec. 3, 2001) (remand) (" First Remand Determination "). The First Remand Determination affirmatively found injury to the domestic industry. Altx contends that, because the First Remand Determination was supported by substantial evidence, it was improper for the Court of International Trade to remand the case to the Commission in Altx II. In the alternative, Altx asks us to reverse the Second Remand Determination on the ground that it is unsupported by substantial evidence, and to remand the case for further proceedings before the Commission.

Defendants-Appellees, Sumitomo Metal Industries, Ltd., Nippon Steel Corp., Kawasaki Steel Corp., Kobe Steel Ltd., and Sanyo Special Steel Co. (collectively, the "Japanese producers"), argue that Altx III and the Second Remand Determination should be affirmed.

Because the Court of International Trade's decision in Altx II was not an abuse of its discretion, and because the Second Remand Determination, which the Court of International Trade sustained in Altx III, is supported by substantial evidence, we affirm.

BACKGROUND

I.

The antidumping laws protect United States industries against the domestic sale of foreign manufactured goods at prices below the fair market value of those goods in the foreign country. Aimcor v. United States, 141 F.3d 1098, 1101 (Fed.Cir. 1998); see also Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1368 (Fed.Cir. 2002) ("Under the statutory scheme established by the Tariff Act of 1930 ... American industries may petition for relief from imports that are sold in the United States at less than fair value ('dumped'), or which benefit from subsidies provided by foreign governments."). If a less than fair value sale of imported goods results in actual or threatened injury to the corresponding domestic industry, a duty may be imposed on the imported merchandise. Micron Tech., Inc. v. United States, 117 F.3d 1386, 1389 (Fed.Cir. 1997). The duty is "equal to the amount by which the normal value exceeds the export price ... for the merchandise."1 RHP Bearings Ltd. v. United States, 288 F.3d 1334, 1337 (Fed.Cir. 2002) (quoting 19 U.S.C.§ 1673 (2000)).

An antidumping investigation is initiated when the domestic industry petitions the Department of Commerce ("Commerce") to investigate allegations of dumping by foreign manufacturers. Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1089 (Fed.Cir. 2002). After Commerce confirms that the petition "contains information ... supporting the allegations," 19 U.S.C. § 1673a(c)(1)(A)(i) (2000), it makes a preliminary determination as to whether the imported merchandise is being sold, or is likely to be sold, at less than fair value. Id. § 1673(1). While Commerce is making its preliminary determination, the Commission makes a preliminary determination as to whether there is a "reasonable indication" that an industry in the United

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States is "materially injured or is threatened with material injury ... by reason of imports of the subject merchandise [or] that imports of the subject merchandise are not negligible." Id. § 1673b(a)(1). If either of the Commission's preliminary determinations is in the negative, the antidumping investigation is terminated. If the investigation is not terminated, Commerce makes its final determination "as to 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). At the same time, the Commission finalizes its determination as to the existence or threat of material injury. Id. § 1673d(b)(1). If both the injury inquiry by the Commission and the less than fair value determination by Commerce are "answered in the affirmative," Commerce issues the appropriate final antidumping order. Duferco Steel, 296 F.3d at 1089; see 19 U.S.C. § 1673d(c)(2) (2000).

A final determination by the Commission can be appealed to the Court of International Trade, which reviews the Commission's findings to ensure that they are not "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (2000). Should the court determine that the Commission's determination is unsupported by substantial evidence or otherwise incorrect, the case will be remanded to the Commission with specific instructions, pursuant to 19 U.S.C. § 1516a.2 Otherwise, the Court of International Trade will affirm the Commission's findings, paving the way for an appeal to this court. Commerce's final determination also can be appealed to the Court of International Trade. Id. There, it is reviewed under the same standard that applies to the Commission's final determination. Id. § 1516a(b)(1)(B)(i); see Yancheng Baolong Biochemical Prods. Co. v. United States, 337 F.3d 1332, 1333 (Fed.Cir. 2003). Only the Commission's final determination in this case is at issue. Commerce's final determination is not before us.

II.

This case has a long and complicated history, involving three determinations by the Commission and three corresponding Court of International Trade decisions.

A.

The goods at issue are circular seamless stainless steel hollow products ("CSSSHPs"), of which there are two types, hot- and cold-finished. Production of either type begins with an unfinished stainless steel billet. A central cavity is formed using a hot extrusion process to drill an axial hole through the entire billet. The billet is then heated, and a die is forced through the hole to expand the cavity. The final step in the production of a hot-finished CSSSHP is to reheat the billet and force it through a die and over an internal mandrel. If the resulting product requires a close dimensional tolerance or a smooth finish, an additional cold-finishing process is conducted. In that case, the hot-finished CSSSHP (referred

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to as "redraw hollow" when used as an input for a cold-finished CSSSHP) must undergo cold-tube reducing or cold-drawing. These processes require the hot-finished CSSSHP to be pulled through a die, usually with an internal plug or mandrel that forms the inside of the tube. In the investigation that is before us, the Commission treated hot- and cold-finished CSSSHPs as a single domestic like product.

B.

Domestic, European, and Japanese producers all supply the U.S. market for CSSSHPs. Domestic CSSSHP producers can be grouped into two categories: independent producers of cold-finished CSSSHPs, and U.S. subsidiaries of European companies that produce both hot- and cold-finished CSSSHPs. On October 26, 1999, the latter group instigated the present investigation by petitioning Commerce to review the impact of sales of Japanese CSSSHP imports ("subject imports") beginning in 1997. In conducting its part of the investigation, the Commission collected industry and shipment data for subject imports, as well as for CSSSHPs imported from non-Japanese producers ("non-subject imports"). The Commission used this data to create a statistical model that correlated the level of subject imports with the health of the domestic industry ("COMPAS"). Because many of the results predicted by the COMPAS model were contradicted by empirical data, the Commission declined to include the model in its final...

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