Algoma Steel Corp., Ltd. v. US

• Decision Date: 08 June 1988
• Docket Number: Court No. 86-07-00839.
• Citation: 688 F. Supp. 639
• Parties: The ALGOMA STEEL CORP., LTD., and Christianson Pipe, Ltd., Plaintiffs, and Ipsco, Inc., and Ipsco Steel, Inc., Plaintiff-Intervenors, v. The UNITED STATES and International Trade Commission, Defendants, and Lone Star Steel Corporation, Maverick Tube Corporation, and Sawhill Tube Division, Cyclops Corp., Defendant-Intervenors.
• Court: U.S. Court of International Trade

688 F. Supp. 639

The ALGOMA STEEL CORP., LTD., and Christianson Pipe, Ltd., Plaintiffs and Ipsco, Inc., and Ipsco Steel, Inc., Plaintiff-Intervenors, v. The UNITED STATES and International Trade Commission, Defendants and Lone Star Steel Corporation, Maverick Tube Corporation, and Sawhill Tube Division, Cyclops Corp., Defendant-Intervenors.

Court No. 86-07-00839.

United States Court of International Trade.

June 8, 1988.

COPYRIGHT MATERIAL OMITTED

Dow, Lohnes & Albertson, William Silverman, Leslie H. Wiesenfelder, and Michael P. House, Washington, D.C., for plaintiffs.

Barnes, Richardson & Colburn, Rufus E. Jarman, Jr., Matthew J. Clark, Karin M. Burke, New York City, for plaintiff-intervenors.

Lyn M. Schlitt, General Counsel, James A. Toupin, Assistant General Counsel, and Paul R. Bardos, U.S. Intern. Trade Com'n, Washington, D.C., for defendants.

Dewey, Balantine, Bushby, Palmer & Wood, Michael H. Stein, Washington, D.C., for defendant-intervenor Lone Star Steel Co.

OPINION

RESTANI, Judge:

This matter is before the court on plaintiffs' motion for judgment upon the agency record. The decision before the court for review is the International Trade Commission (ITC) final determination that an industry in the United States is materially injured by reason of less than fair value (LTFV) imports in Oil Country Tubular Goods from Canada, USITC Pub. 1865, Inv. No. 731-TA-276 and 277 (June 1986).

The single issue before the court is whether ITC erred in assessing the volume of LTFV imports, and their impact on injury, by failing to take account of the fact that some sales of Oil Country Tubular Goods OCTG from non-excluded Canadian companies were at fair value. The relevant facts are as follows:

One of the plaintiffs, Algoma Steel Corporation, a producer and exporter of OCTG, was assigned a weighted average dumping margin of 13 percent by the International Trade Administration of the Department of Commerce (ITA). The other plaintiff, Christianson Pipe, an exporter, was assigned the 16.65 percent weighted average margin of the "all other" category. 51 Fed.Reg. 29,579 (Aug. 19, 1986). The weighted average is derived by ITA from all sales, both LTFV and fair value, during a six month period.¹ In this case, ITA provided ITC with its final conclusion as to which companies had positive dumping margins. ITA did not advise ITC which sales it found to be at LTFV, nor did it state the overall LTFV sales percentage figure for each company. Though ITC may request such information if it finds it necessary to its decision-making, see 19 U.S.C. § 1673a(d)(2) (1982), it did not make such a request here. Plaintiffs, however, did place certain information of this type in the record under review. Confidential Record Document No. 35 at app. 2. Based on this information, plaintiffs assert that less than half of all sales of OCTG from Canada (by volume) during ITA's investigation period were at LTFV. In determining the volume of LTFV imports, ITC included in its volume figures all sales of OCTG from Canada, except those made by an excluded company.²

Plaintiffs argue generally that ITC should have undertaken a sale by sale analysis so as to make the best possible determination of whether injury is the result of LTFV sales. According to plaintiffs, this type of analysis would indicate whether particular U.S. sales are lost to LTFV sales of imports. Failing this, plaintiffs argue that ITC at least should adjust its volume data to reflect that only a portion of sales were at LTFV.

Plaintiffs make four specific arguments. First, that ITC's determination of injury is based on fairly traded imports contrary to the Trade Agreements Act of 1979, Pub.L. No. 96-39, 93 Stat. 144 (1979) (1979 Act) and the Antidumping Code of the General Agreement on Tariffs and Trade (GATT).³ Second, that Congress intended ITC to continue its pre-1980 practice of segregating LTFV and fairly traded imports. Third, that ITC's methodology renders the determination unsupported by substantial evidence because it creates an erroneous presumption that all sales were at LTFV, and fourth, that ITC's policies of excluding companies with de minimis LTFV sales and excluding certain sales it deems "the equivalent of fairly traded" are inconsistent with its methodology here.

The court deals first with an aspect of the fourth argument that seems to be based on a clearly erroneous assumption. That is, plaintiffs assume that ITC excludes certain companies, found by ITA to have zero or de minimis LTFV sales, from its investigation. ITC, in fact, excludes no such companies. It is ITA which follows a policy of excluding from its determination companies with zero or de minimis LTFV margins. Thus, ITC has no policy of its own on this point with which it could be inconsistent. In any event, assuming arguendo that ITC and ITA should be consistent, there appears to be nothing more inconsistent about ITA excluding a particular company and ITC considering all sales of non-excluded companies than there is in establishing a de minimis rate or an exclusion policy in the first place. Plaintiffs do not challenge these somewhat arbitrary procedures. They are beneficial to plaintiffs, they assist ITA, and they may be fair.

It should also be noted that possibilities for ITA and ITC inconsistencies are built into the law. The very fact of separation of the two parts of the decisions required by the unfair trade laws may lead to superficial inconsistencies. As long as the inconsistencies resulting from the plain language of the statute do not lead to results which Congress could not have intended, they should be tolerated. See infra discussion of the applicable statutory language.

Plaintiffs also argue that ITC's methodology in this case is inconsistent with its own practice of excluding sales that it deems the "equivalent of fairly traded" —namely imports already subject to an antidumping order. Plaintiff's Brief at 42-44 (citing Color Picture Tubes from Canada, Japan, the Republic of Korea and Singapore, USITC Pub. 1937, Inv. No. 731-TA-367-370 (Jan. 1987) and Cold Rolled Carbon Steel Plates and Sheets from Argentina, USITC Pub. 1967, Inv. No. 731-TA-175 (Mar. 1987)).

The court finds no such inconsistency. ITC's practice of excluding certain imports already subject to an antidumping order is based on the reasonable assumption that the injurious effect of those imports has been negated by the imposition of dumping duties. That such imports are considered "fairly traded" by ITC, however, does not support the general proposition put forth by plaintiffs, that ITC must exclude from its analysis all non-LTFV sales made by a company under investigation. A practice of treating all imports subject to an outstanding antidumping duty order as fairly traded is distinguishable from a practice which would require ITC to segregate individual LTFV and fair value sales.

As to plaintiff's second argument, the court does not find Congressional ratification of ITC's prior practice. Plaintiffs argue that Congress was made aware of a consistent prior practice by the testimony of Russell N. Shewmaker in Hearings Before the Subcommittee on Trade of the House Committee on Ways and Means, 98th Cong., 1st Sess. 1119, 1178-1179 (1983). The court has reviewed this testimony and found little which might alert Congress to ITC's particular practices. The legislative history of the 1979 Act does contain the following statement:

Section 735(b) contains the same causation term as is in current law, i.e., an industry must be materially injured "by reason of" less-than-fair-value imports. The current practice by the ITC with respect to causation will continue under Section 735.

S.Rep. No. 249, 96th Cong., 1st Sess. 74, reprinted in 1979 U.S.Code Cong. & Admin.News 381, 460. This seems to be nothing more than a paraphrasing of the statute itself. The court has found in the past that ordinarily Congress does not, by such general statements, attempt to direct the specifics of ITC's causation methodology and Congress is specific when it actually intends to remove agency discretion in this area. See USX Corp. v. United States, 11 CIT ___, 655 F.Supp. 487, 496 (1987) (discussion of the Trade and Tariff Act of 1984).

Even assuming that Congress actually meant to ratify consistent agency practices, it is unclear that at the time of the 1979 Act a consistent practice existed. It does seem clear that ITC had at one time a practice of requesting or receiving LTFV sales data, and it sometimes based its decision on the volume of LTFV sales rather than total volume of sales by the companies found to have positive margins. See, e.g., Butadiene Acrylonitrile Rubber from Japan, USITC Pub. 764, Inv. No. AA1921-151 (Mar. 1976). As the 1979 Act approached, however, there were many occasions on which ITC based its decision on total import volumes, as was done here, without differentiating between LTFV and fair value sales. See, e.g., Polyvinyl Chloride Sheet and Film from the Republic of China, USITC Pub. 879, Inv. No. AA1921-178 (Apr. 1978). (Percentage of LTFV sales were noted merely as a factor in ITA's computation of weighted average.) Accordingly, the court finds that ITC's pre-1979 Act practice was not consistent.

Plaintiffs next argue that their view has already been adopted by this court in Sprague Electric Co. v. United States, 84 Cust.Ct. 243, 488 F.Supp. 910 (1980) (Sprague I). In that case, ITC omitted from its consideration of threat of material injury a company which had no LTFV sales during the investigated period. The court sustained this determination. On rehearing, however, the court determined that ITC could not exclude from the defined class of imports sold at LTFV, imports of a company which the administering agency had not excluded from its determination. Sprague Electric Co. v. United States, 84 Cust.Ct. 260, 261-62 (1980) (Sprague II). In Sprague I the court also upheld ITC's determination, Tantalum...