Avesta AB v. US

• Decision Date: 07 June 1988
• Docket Number: No. 85-10-01497.,85-10-01497.
• Citation: 689 F. Supp. 1173
• Parties: AVESTA AB and Avesta Stainless Inc., Plaintiffs, v. UNITED STATES, Defendant, Allegheny Ludlum Steel Corporation, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

689 F. Supp. 1173

AVESTA AB and Avesta Stainless Inc., Plaintiffs, v. UNITED STATES, Defendant Allegheny Ludlum Steel Corporation, et al., Defendant-Intervenors.

No. 85-10-01497.

United States Court of International Trade.

June 7, 1988.

Freeman, Wasserman & Schneider (Jack Gumpert Wasserman, Patrick C. Reed and Edwin C. Bullock, New York City, on the motion), for plaintiffs.

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

Collier, Shannon, Rill & Scott (David A. Hartquist, Paul C. Rosenthal and Patrick B. Fazzone, Washington, D.C., on the motion), for defendant-intervenors.

MEMORANDUM OPINION

CARMAN, Judge:

Plaintiffs commenced this action seeking an order invalidating and vacating the determination of the United States International Trade Commission ITC or Commission in 50 Fed.Reg. 43613 (October 28, 1985) Dismissal of Request. The ITC dismissed plaintiffs' request for review and modification or revocation of a 12-year old finding of dumping against stainless steel plate from Sweden.

This action concerns in part the novel question of what standard governs a determination of whether changed circumstances are "sufficient" to commence a review investigation of an affirmative injury determination under section 751(b) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(b) (1982) and 19 C.F.R. § 207.45(b)(2) (1985) of the ITC's regulations.

Plaintiffs allege that the ITC applied too stringent a standard in determining whether the changed circumstances were sufficient to warrant review. They contend the ITC should have applied the "reasonable indication" standard governing a preliminary injury determination pursuant to section 733(a) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673b(a) (1982). Plaintiffs further urge that the ITC's conclusions regarding the specific circumstances alleged to be sufficient to warrant review lack a rational basis in fact and were not based on adequate procedures. In short, plaintiffs contend the ITC determination is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of section 516A(b)(1)(A) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(b)(1)(A) (1982).¹

For the reasons that follow, the Court finds that the standard applicable in a preliminary injury determination under § 1673b(a) is different from the standard governing a determination of changed circumstances sufficient to warrant review of an affirmative injury determination. It is not without significance that in the former, there has been no agency determination whatsoever; whereas in the latter, there has been an affirmative determination of injury. Although the agency determinations appear in both situations to have a reasonable and rational basis in fact and to be designed to enable the agency to "weed out" those cases clearly without merit, the statutory mandates requiring action in the proceedings are somewhat different.² The Court further finds the agency properly applied the governing standard, and its conclusions regarding changed circumstances sufficient to warrant review were reasonable and supported by a rational basis in fact. Lastly, the Court finds the ITC's application of its own regulations to prohibit the submission of a reply brief that was untimely filed was a reasonable procedure consistent with the agency's discretion to fashion its own rules of procedure and comported with due process.

FACTUAL BACKGROUND

The facts of this case date back to 1973 when the Treasury Department made a finding of dumping against stainless steel plate from Sweden, T.D. 73-157, and published notice of this finding in 38 Fed.Reg. 15079 (June 8, 1973). The finding was based in part on a determination by the United States Tariff Commission "that an industry in the United States is being injured by reason of the importation of stainless steel plate from Sweden being sold at less than fair value." Stainless Steel Plate From Sweden, Inv. No. AA1921-114, TC Pub. 573, at 1-2 (May, 1973) 1973 Determination.

On July 8, 1985, 12 years after issuance of the antidumping duty order, the ITC received a request to review that injury determination. The request was filed on behalf of Avesta AB, the sole Swedish producer and exporter of stainless steel plate and its affiliated company, Avesta Stainless, Inc., a U.S. producer of stainless steel plate collectively referred to as Avesta. Avesta asked the ITC to commence a review for the purpose of determining whether a United States industry would be materially injured or threatened with material injury if the 1973 dumping finding were modified or revoked. In its request, Avesta alleged the existence of certain changed circumstances believed to be "sufficient" to warrant review of the 1973 injury determination. See List No. 1 of the Administrative Record, Pub.Doc. 1, Avesta AB v. United States (No. 85-10-01497) Pub. Doc..

In accordance with 19 C.F.R. § 207.45(b)(2) of the agency's regulations, the ITC issued notice of the filing of the petition and requested public comments regarding Avesta's request for review. See 50 Fed.Reg. 31056 (July 31, 1985). The notice provided that "all comments must be filed no later than 30 days after the date of publication of this notice in the Federal Register." Id. Therefore, all comments had to be filed no later than August 30, 1985. The ITC specifically requested comments about the following changed circumstances alleged to be sufficient to warrant a review investigation:

(1) Imports of Swedish plate into the United States are commercially insignificant and statistically de minimis, representing less than one percent of apparent U.S. consumption of plate in every year but one since 1976; (2) The number of companies producing stainless steel plate in Sweden has fallen from four producers with four mills in 1972 to one producer with two mills in 1985; (3) In 1976, a predecessor of Sweden's sole remaining producer of stainless steel plate acquired Borg Warner Corporation's Ingersoll Division mill at New Castle, IN, and by 1984 this mill's share of apparent U.S. consumption of stainless steel plate had greatly increased; and (4) In 1972, Sweden and the European Community (EC) entered into a bilateral trade agreement which allowed Swedish plate duty-free entry into the EC; today, Swedish exports to the EC are almost 20 times the quantity exported to the United States.

Dismissal of Request, 50 Fed.Reg. at 43613-14.

On August 30, 1985, the deadline for filing comments, the ITC received a memorandum in opposition to the request for review from the defendant-intervenors, Allegheny Ludlum Steel Corporation, Armco Inc., LTV Steel Company, Jessop Steel Corporation, Washington Steel Corporation, and the United Steelworkers of America, AFL/CIO-CLC. See Pub.Doc. 6. The intervenors contended that a review investigation was not warranted because none of the circumstances alleged in the petition constituted a change in those factors underlying the 1973 injury determination.

On September 5, 1985, six days after the expiration of the 30-day comment period, Avesta submitted a reply to the intervenors' memorandum in opposition to the request for review. Plaintiffs sought to rebut certain alleged facts contained in the domestic industry's response. The reply was not accepted for filing and was returned to Avesta as untimely.

On September 30, 1985, the ITC extended the administrative deadline for action on the petition. After considering the request for review and all responses to the petition, a majority of the ITC³ ruled that the petition did not show changed circumstances sufficient to warrant a review of the 1973 injury determination regarding stainless steel plate from Sweden. See Dismissal of Request, 50 Fed.Reg. at 43613-14.

Plaintiffs contend the ITC erred in dismissing Avesta's request for a review investigation. There is no dispute that the Court must hold unlawful this determination if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(A). This standard is understood to comprise the following principles:

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). In reviewing that explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, 419 U.S. 281 at 285 95 S.Ct. 438 at 442, 42 L.Ed.2d 447; Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. 402 at 416 91 S.Ct. 814, 824, 28 L.Ed.2d 136. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1982). Thus, ITC action is not arbitrary and capricious as long as there is a rational basis in fact for the determination, and the decision is not contrary to law. Suwannee S.S. Co. v. United States, 79 Cust.Ct. 19, 23-24, C.D. 4708, 435 F.Supp. 389, 392 (1977). See also S.Rep. No. 249, 96th Cong., 1st Sess. 252, reprinted in 1979 U.S.Code

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