Suramericana de Aleaciones Laminadas, CA v. US, Court No. 88-09-00726.

• Decision Date: 22 August 1990
• Docket Number: Court No. 88-09-00726.
• Citation: 746 F. Supp. 139
• Parties: SURAMERICANA de ALEACIONES LAMINADAS, C.A., Conductores de Alumino del Caroni, C.A., Industria de Conductores Electricos, C.A., and Corporacion Venezolana de Guayana, Plaintiffs, v. UNITED STATES, U.S. International Trade Commission, and U.S. Department of Commerce, Defendants, and Southwire Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

746 F. Supp. 139

SURAMERICANA de ALEACIONES LAMINADAS, C.A., Conductores de Alumino del Caroni, C.A., Industria de Conductores Electricos, C.A., and Corporacion Venezolana de Guayana, Plaintiffs, v. UNITED STATES, U.S. International Trade Commission, and U.S. Department of Commerce, Defendants and Southwire Company, Defendant-Intervenor.

Court No. 88-09-00726.

United States Court of International Trade.

August 22, 1990.

Arnold & Porter (Patrick F.J. Macrory, Nancy C. Loeb, Michael Faber); of counsel, Shelley R. Slade; Shearman & Sterling (Thomas B. Wilner, Jeffrey M. Winton), Washington, D.C., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (M. Martha Ries); Joseph I. Liebman, Atty. in Charge, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice; Lynn M. Schlitt, Gen. Counsel, U.S. International Trade Com'n; Robert H. Brumley, Gen. Counsel, U.S. Dept. of Commerce, Washington, D.C., for defendants.

Wigman & Cohen (Victor M. Wigman, Ralph C. Patrick, Dorothy H. Patterson, Arlington, Va.); McKenna, Conner & Cuneo (Peter Buck Feller, Lawrence J. Bogard), Washington, D.C., for defendant-intervenor.

Baker & McKenzie (William D. Outman II, Arthur L. George), Washington, D.C., for Gen. Elec. Co. amicus curiae in support of plaintiffs.

OPINION

MUSGRAVE, Judge.

This case is a clear example of misapplication, indeed misuse, of the Trade Agreements Act by a single litigant that has sought, and here seeks, to obtain relief solely for its own benefit. The statutes involved do not contemplate such private litigation; in fact, they prohibit such actions. The statutes provide for relief to a domestic industry, not a lone member of that industry. Notwithstanding the defendants' strained interpretations of certain decisions of this Court involving facts significantly different from those presented here, three considerations are completely dispositive of this case: the statutes involved, the decision of this Court in Gilmore Steel v. United States, 7 CIT 219, 585 F.Supp. 670 (1984), and the decision of the Court of Appeals for the Federal Circuit in Oregon Steel Mills v. United States, 862 F.2d 1541 (1988).

In 1979, Congress amended the 1930 Tariff Act, by adding, inter alia, sections 1671a(b)(1) and 1673a(b)(1) of U.S.C. Title 19, to mandate that all antidumping and countervailing duty petitions be brought "on behalf of" a United States domestic industry. In Gilmore, the Court of International Trade explicitly recognized that the language in those sections requires a petitioner for the imposition of such duties to show that a majority of its industry supports its petition.

In the instant case, unlike the cases relied upon by defendants, the views of every member of the petitioner's industry were known, and not a single member supported the petition other than the petitioner itself. Nevertheless, to maintain its action in the face of the statutory requirements of industry support, the petitioner, and the other defendants herein, essentially argue that the statutes and Gilmore do not really require a finding of industry support for a petition, but only a finding that a majority of the relevant domestic industry does not oppose the petition. This contention is completely inconsistent with the express language of the applicable statutes and the holding in Gilmore. The petitioner — a fifty-percent owner of the respondent Suramericana (which respondent is a plaintiff herein) for ten of the twelve years prior to the petitioner's action targeting Suramericana — clearly was acting alone and not on behalf of a domestic industry in filing its petition. The petition therefore was improper and the ensuing investigation is a nullity; consequently, the agency determinations resulting therefrom must be vacated.

BACKGROUND

Plaintiffs Suramericana de Aleaciones Laminadas, C.A. ("Sural"), Conductores de Alumino del Caroni, C.A. ("Condal"), and Industria de Conductores Electricos, C.A. ("Incon") are Venezuelan companies that produce electrical conductor aluminum redraw rod ("EC rod"); plaintiff Corporacion Venezolana de Guayana ("CVG") is a Venezuelan Government development authority that operates as a holding company for Venezuela's two primary aluminum producers. (All of the above are hereinafter referred to as "plaintiffs".) Plaintiffs commenced this action to contest affirmative antidumping and countervailing duty determinations of Commerce and the ITC covering exports to the United States of EC rod from Venezuela. Plaintiffs seek from this Court, on various bases, an order reversing those affirmative determinations and vacating antidumping and countervailing duty orders already outstanding on imports from Venezuela of the subject product.

This request is opposed by defendants the United States, the U.S. International Trade Commission ("ITC") and the Department of Commerce ("Commerce"), and by defendant-intervenor Southwire Company, which company was the original petitioner in the administrative proceedings that resulted in the determinations challenged here.

In challenging the affirmative determinations and the outstanding orders, plaintiffs assert the existence of several procedural and substantive flaws in the administrative proceedings and resulting determinations below. Plaintiffs allege that the finding by the ITC of a threat of injury to United States producers of like products from imports from Venezuela of EC rod was "based in part on last-minute allegations submitted in violation of the ITC's Rules and without opportunity for rebuttal." Plaintiffs' Memorandum in Support of Motion for Judgment on the Administrative Record ("Plaintiffs' Brief") at 39. Plaintiffs also argue that the affirmative threat-of-injury determination is "erroneous as a matter of law" in that the supporting factual findings allegedly are conjectural and therefore "insufficient as a matter of law". Id. at 43-70. Finally, plaintiffs argue that "Commerce's finding that Sural's sales were made at less-than-fair-value prices was incorrect" in that Commerce allegedly improperly rejected information supplied by Sural, relying instead on "best information available" ("BIA"), and made "additional clerical and factual errors." Id. at 70-84.

As a precursor to these arguments, however, plaintiffs argue that the administrative record reveals that the antidumping and countervailing duty petitions at issue here were not filed by Southwire "on behalf of" the relevant domestic industry as required by the applicable statutes, and that the petitions therefore were improperly considered by Commerce and the ITC. The Court finds that the petition was not filed on behalf of the relevant domestic industry as required by the statutes, 19 U.S.C. §§ 1671a(b)(1) and 1673a(b)(1); therefore, it is not necessary to discuss further the plaintiffs' other challenges.

Administrative Procedures

Two agencies are principally involved in the administration of the United States countervailing and antidumping duties laws — the Department of Commerce and the International Trade Commission. Commerce generally determines whether or not goods imported into the United States have been subsidized or sold in the United States at less than their fair value ("dumped"). The ITC determines whether any subsidies or dumping found by Commerce harm or threaten existing or potential U.S. industry. The procedures by which the two agencies make these determinations may be summarized as follows.

When a petition seeking the imposition of antidumping or countervailing duties is filed with Commerce and the ITC by an "interested party", "on behalf of an industry", Commerce must within 20 days determine whether the petition "alleges the elements necessary for the imposition of such duties and contains information reasonably available to the petitioner supporting those allegations". If that first determination is affirmative, Commerce must commence an investigation to determine whether in fact a subsidy has been provided to the particular imported merchandise or whether the merchandise in fact is being, or is likely to be, sold in the United States at less than its fair value, so as in part to require the imposition of countervailing or antidumping duties to offset, respectively, the subsidies or the dumping. If the first determination is negative, Commerce must dismiss the petition and terminate the proceeding. Commerce is required to notify the ITC immediately of any determination it makes under the above procedures, and if the determination is affirmative Commerce must "make available to the ITC such information as it may have relating to the matter under investigation...." 19 U.S.C. §§ 1671a, 1673a (1990).

Within 45 days after the date on which a petition is filed or on which Commerce notifies the ITC that it is commencing an investigation, and unless Commerce has dismissed the petition because of a negative determination as to the sufficiency of the allegations in the petition, the ITC must determine preliminarily whether there is a "reasonable indication" that "an industry in the United States" is "materially injured" or "threatened with material injury" by reason of the allegedly subsidized or dumped imports, or whether "the establishment of an industry" in the United States is "materially retarded" thereby. Within 85 days after the filing of the petition or the commencement by Commerce of an investigation (in countervailing duty cases; within 160 days in antidumping cases), but only after an affirmative preliminary determination by the ITC of the existence or threat of material injury or material retardation, Commerce must make a preliminary determination of whether there is a "reasonable basis to believe or suspect" that a subsidy is being provided with respect to the imported merchandise or that the merchandise is being, or is likely to be, sold in the United States at less than its fair...