American Spring Wire Corp. v. United States

Decision Date11 July 1984
Docket Number83-3-00371 and 83-3-00455.,83-1-00101,No. 82-10-01355,82-10-01355
PartiesAMERICAN SPRING WIRE CORPORATION, Armco Inc., Bethlehem Steel Corporation, Florida Wire & Cable Company, and Shinko Wire America, Inc., Plaintiffs, v. UNITED STATES, Defendant, Trefileries Et Cableries Chiers Chatillon Gorcy and Companhia Siderurgica Belgo-Mineira, Intervenors.
CourtU.S. Court of International Trade

COPYRIGHT MATERIAL OMITTED

Stewart & Stewart, Washington, D.C. (Eugene L. Stewart, Terence P. Stewart, Paul W. Jameson, and Kathleen T. Weaver, Washington, D.C., on the briefs), for plaintiffs.

Michael H. Stein, Gen. Counsel, U.S. Intern. Trade Com'n; Michael P. Mabile, Asst. Gen. Counsel, U.S. Intern. Trade Com'n (Jack M. Simmons, III, Washington, D.C., on the brief), for defendant.

Fox, Glynn & Melamed, New York City (Raymond F. Steckel and Garry P. McCormack, New York City, on the brief), for intervenor Trefileries et Cableries Chiers Chatillon Gorcy.

Wald, Harkrader & Ross, Washington, D.C. (Christopher Dunn and William J. Clinton, Washington, D.C., on the briefs), for intervenor Companhia Siderurgica Belgo-Mineira.

MALETZ, Senior Judge:

Plaintiffs in this consolidated action represent the domestic prestressed concrete steel wire strand (PC strand) industry.1 By motion for judgment upon the agency record, they challenge as unsupported by substantial evidence and otherwise not in accordance with the law four final negative injury determinations by the United States International Trade Commission (ITC or Commission) involving imports of PC strand from Spain, France, the United Kingdom, and Brazil. See USITC Pubs. 1281 (Aug. 1982) (Spain); 1325 (Dec. 1982) (France); 1343 (Feb. 1983) (United Kingdom); 1358 (Mar. 1983) (Brazil).2

These ITC negative injury determinations followed affirmative findings by the International Trade Administration of the Department of Commerce (ITA) that PC strand imports from Spain, France and Brazil were being subsidized, while such imports from the United Kingdom were being sold at less than fair value. See 47 Fed.Reg. 28,723 (1982) (Spain); 47 Fed.Reg. 47,031 (1982) (France); 48 Fed.Reg. 4516 (1983) (Brazil); 47 Fed.Reg. 56,690 (1982) (United Kingdom).

Complaints were timely filed for each of the four ITC determinations. In view of the commonality of issues among the four cases, the actions were consolidated. For the reasons that follow, the court concludes that there is substantial evidence in the administrative record supporting the ITC's negative injury determinations and these determinations are accordingly sustained.

I. Substantial Evidence

Under the statute, a final negative injury determination by the ITC must be sustained unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1982). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), quoted in Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22 (1st Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983). Accord Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). Taking into account "`whatever in the record fairly detracts' from the agency's fact finding as well as evidence that supports it," Penntech, supra, 706 F.2d at 22 (quoting Universal Camera, supra, 340 U.S. at 487-88, 71 S.Ct. at 464-65), "the court may not substitute its judgment for that of the agency when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo....'" Id. at 22-23 (quoting Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. at 465).

The standard of review is identical when this court reviews determinations by the ITC:

The negative determination by the Commission's majority must be sustained if its findings and conclusions have a rational connection to its determination, and are supported by substantial evidence. Fundamentally, in reviewing an injury determination under the Antidumping Act, this Court may not weigh the evidence concerning specific factual findings, nor may the Court substitute its judgment for that of the Commission.

Sprague Elec. Co. v. United States, 2 CIT 302, 310-11, 529 F.Supp. 676, 682-83 (1981).3 Accord Pasco Terminals, Inc. v. United States, 68 CCPA 8, C.A.D. 1256, 634 F.2d 610 (1980); Budd Co. Ry. Div. v. United States, 1 CIT 67, 507 F.Supp. 997 (1980).

II. Material Injury

In its final antidumping and countervailing duty investigations, the ITC is required to determine whether:

(A) an industry in the United States —
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded, by reason of imports of the merchandise with respect to which the administering authority ITA has made an affirmative determination....

19 U.S.C. §§ 1671d(b)(1) and 1673d(b)(1) (1982).4 The Commission must make an affirmative finding only when it finds both (1) present material injury (or threat to or retardation of the establishment of an industry) and (2) that the material injury is "by reason of" the subject imports. Relief may not be granted when the domestic industry is suffering material injury but not by reason of unfairly traded imports. Nor may relief be granted when there is no material injury, regardless of the presence of dumped or subsidized imports of the product under investigation. In the latter circumstance, the presence of dumped or subsidized imports is irrelevant, because only one of the two necessary criteria has been met, and any analysis of causation of injury would thus be superfluous.

"Material injury" has been defined by Congress as "harm which is not inconsequential, immaterial, or unimportant." 19 U.S.C. § 1677(7)(A) (1982). Congress has directed the ITC to consider "all relevant economic factors which have a bearing on the state of the industry," id. § 1677(7)(C)(iii), including, but not limited to:

(I) actual and potential decline in output, sales, market share, profits, productivity, return on investments, and utilization of capacity,
(II) factors affecting domestic prices, and
(III) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment.

Id.

The list is illustrative, but not exclusive. The flexibility afforded to the ITC is evinced by the legislative history. See H.R. Rep. 317, 96th Cong., 1st Sess. 46 (1979) ("The significance of the various factors affecting an industry will depend upon the facts of each particular case. Neither the presence nor the absence of any factor listed in the bill can necessarily give decisive guidance with respect to an injury determination.") Cf. S.Rep. 249, 96th Cong., 1st Sess. 88, reprinted in 1979 U.S. Code Cong. & Ad.News 381, 474 ("The significance to be assigned to a particular factor is for the ITC to decide."). No factor, standing alone, triggers a per se rule of material injury. See SCM Corp. v. United States, 4 CIT 7, 544 F.Supp. 194 (1982).

III. ITC Findings Regarding the PC Strand Industry

Against this background, the ITC found, in essence, in each of the four investigations, that the domestic PC strand industry was not suffering material injury or threatened with material injury. While the Commission did not make an explicit ultimate finding to this effect, there can be no doubt that this was the thrust of each of its determinations. The agency's path in this regard is clearly discernible. See Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945). Thus, in the Brazil investigation, the Commission found:

As we have observed in the other recent PC strand investigations, many of the important economic factors which the Commission considers indicate that the condition of the U.S. industry is generally healthy. Domestic production increased steadily and significantly from 1979 through 1981, although the period January-September 1982 showed some decline when compared to the same period in 1981. U.S. producers' shipments of PC strand followed the same general trend. U.S. productive capacity increased throughout the period under consideration, including a very marked increase in the January-September 1982 period compared to the corresponding period in 1981. Two domestic producers recently increased their productive capacity significantly. Notwithstanding the increased capacity of the domestic producers, domestic capacity utilization remained at relatively high levels throughout the entire period, falling only during the first nine months of 1982. Almost all of the recent decline in domestic capacity utilization is accounted for by the increased domestic productive capacity.
Employment, when measured by the number of production and related workers and by hours worked, showed no significant changes during the period 1979 through September 1982, although some decline is evident during the first nine months of 1982 compared to the first nine months of 1981. Hourly wages, total compensation, and worker productivity have all increased substantially.
The only significant negative trend in this industry is that of profitability. Although the industry's net sales increased from 1979 to 1981, net profits declined and net losses occurred during the first nine months of 1982. In this investigation, we do not believe that the profitability data, standing alone, are sufficient, when all other factors are considered, to support a finding of material injury or threat of material injury.

USITC Pub. 1358, ...

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