785 F.2d 994 (Fed. Cir. 1986), 86-560, American Lamb Co. v. United States

Docket Nº:Appeal No. 86-560.
Citation:785 F.2d 994
Party Name:AMERICAN LAMB COMPANY, et al., Appellees, v. The UNITED STATES, Appellant, and New Zealand Meat Products Board, et al., Intervenors.
Case Date:February 28, 1986
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 994

785 F.2d 994 (Fed. Cir. 1986)

AMERICAN LAMB COMPANY, et al., Appellees,

v.

The UNITED STATES, Appellant,

and

New Zealand Meat Products Board, et al., Intervenors.

Appeal No. 86-560.

United States Court of Appeals, Federal Circuit

February 28, 1986

Page 995

Catherine R. Field, Office of Gen. Counsel, U.S. Intern. Trade Com'n, Washington, D.C., argued for appellant. With her on brief were William E. Perry, Lyn M. Schlitt, Gen. Counsel and Michael P. Mabile, Asst. Gen. Counsel.

Edward J. Farrell, Bronz & Farrell, Washington, D.C., argued for intervenors, New Zealand Meat Products Bd., et al.

Page 996

Robert T. Wray, Robert Wray Associates, Washington, D.C., argued for appellee.

N. David Palmeter, David P. Houlihan and Alan H. Price, Mudge Rose Guthrie Alexander & Ferdon, Washington, D.C., were on brief for amicus curiae Crystal Intern. Corp., et al. Victor T. Fuzak and Craig M. Indyke, Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N.Y., of counsel.

Thomas B. Wilner, Sukhan Kim and Kimberly Till, Arnold & Porter, Washington, D.C., were on brief for amicus curiae Hankook Tire Mfg. Co., et al.

Italo H. Ablondi, F. David Foster, Sturgis M. Sobin and Pamela A. McCarthy, Ablondi & Foster, P.C., Washington, D.C., were on brief for amicus curiae Taiwan Elec. Appliance Mfrs. Assn.

Ronald N. Isroff and Morton L. Stone, Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, were on brief for amicus curiae Glaverbel S.A.

Eugene L. Stewart, Terrance P. Stewart, James R. Cannon, Jr. and Charles S. St. Charles, Stewart and Stewart, Washington, D.C., were on brief for amicus curiae Jeanette Sheet Glass Corp.

Before MARKEY, Chief Judge, and BALDWIN and NIES, Circuit Judges.

MARKEY, Chief Judge.

Interlocutory appeal from an order of the United States Court of International Trade, 611 F.Supp. 979 (Ct.Int'l Trade 1985), ordering the U.S. International Trade Commission (ITC) to reconsider a preliminary determination issued in an antidumping duty investigation under section 733(a) of the Tariff Act of 1930, as amended, 19 U.S.C. Sec. 1673b(a) (1982). The court certified its order for immediate appeal. We remand with instructions to vacate the order.

Background

On April 18, 1984, three domestic lamb producers, American Lamb Co., Denver Lamb Co., and Iowa Lamb Corp. (Denver Lamb), filed petitions with the ITC and the International Trade Administration of the U.S. Department of Commerce (ITA), alleging that imports of lamb meat from New Zealand are being subsidized and then sold in the United States at less than fair value (LTFV). Accordingly, ITC instituted preliminary countervailing and antidumping investigations under sections 703(a) and 733(a), respectively, of the Tariff Act of 1930, as amended, 19 U.S.C. Secs. 1671b(a) and 1673b(a), to determine whether there is a reasonable indication that an industry in the United States is being materially injured, or is being threatened with material injury, or whether there is a reasonable indication that the establishment of an industry in the United States is being materially retarded, by reason of imports of such merchandise.

Notice of the initiation of ITC's investigation, and of a public conference to be held in connection with the investigation, was posted in the Office of ITC's Secretary and was published in the Federal Register on April 25, 1984. 49 Fed.Reg. 17,828 (1984). The conference was held on May 10, and all persons so requesting were permitted to appear in person or by counsel.

Denver Lamb presented the evidence disclosed in its petitions (declining production of live lambs, decreased prices, and increasing lamb and sheep slaughter). During its preliminary investigation, ITC also received information from the United States Department of Agriculture, packers and producers of lamb meat, academic and trade association researchers, and from intervenors New Zealand Meat Producers Board, Meat Export Development Company, and New Zealand Lamb Company.

Having weighed all the evidence, ITC determined on May 25, 1984 (by a 4-2 vote) that there is no reasonable indication that the domestic lamb industry is being materially injured, or being threatened with material injury, or that the establishment of an industry in the United States is being materially retarded, by reason of the importation of lamb meat from New Zealand. Lamb Meat from New Zealand, Investigations

Page 997

Nos. 701-TA-214 (Preliminary), and 731-TA-188 (Preliminary), U.S.I.T.C. Pub. No. 1534 (1984). Those determinations were published in the Federal Register. 49 Fed.Reg. 24,458 (June 13, 1984).

Denver Lamb sought review in the Court of International Trade of those negative preliminary determinations pursuant to 19 U.S.C. Sec. 1516a(a)(1)(A)(iii), arguing that the action should be remanded because the ITC weighed conflicting evidence in making its determinations and because the weighing of conflicting evidence was contrary to the decisions of the court in Republic Steel Corp. v. United States, 591 F.Supp. 640 (1984), reh'g denied, 16 Cust.B. & Dec., No. 14, at 55 (Ct. Int'l Trade 1985), and Jeannette Sheet Glass Corp. v. United States, 607 F.Supp. 123 (Ct. Int'l Trade 1985).

ITC conceded that if those decisions are followed, the action should be remanded, but argued that the cases should not be followed because 19 U.S.C. Sec. 1673b(a) authorizes ITC to weigh conflicting evidence in a preliminary investigation.

The court dismissed as moot the challenge to ITC's negative preliminary determination resulting from the countervailing duty investigation, No. 701-TA-214 (Preliminary), because, effective April 1, 1985, the Office of the U. S. Trade Representative terminated New Zealand "as a country" under Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade (GATT Subsidies Code). 50 Fed.Reg. 13,111 (April 2, 1985). Thus, New Zealand was no longer entitled to an injury test in countervailing duty investigations. 1 611 F.Supp. at 980 n. 1; see 19 U.S.C. Sec. 1671, as amended by Trade and Tariff Act of 1984, Pub.L. No. 98-573, Sec. 602(a), 98 Stat. 3024. 2

Concerning the challenge to the antidumping duty determination, the court wrote:

Defendant's arguments have been rejected three times within the year by two judges of this Court with broad experience in this complex area of the law. Under these circumstances, stare decisis counsels the Court to follow the prior decisions. Defendant should address its arguments to our appellate court.

611 F.Supp. at 981. The court remanded the action, in light of Republic Steel and Jeannette Sheet Glass, instructing ITC to reconsider the antidumping determination.

On July 19, 1985, the court certified its order allowing ITC to appeal to this court pursuant to 28 U.S.C. Sec. 1292(d)(1). The trial court granted ITC's motion to stay proceedings until this court denied, or rendered a decision in, the appeal.

On October 15, 1985, this court granted ITC's petition to accept the interlocutory appeal. Briefs were filed by the parties, intervenors, and amici, 3 and oral argument was presented.

Issue

Whether ITC's weighing of all evidence in applying the "reasonable indication" standard of 19 U.S.C. Sec. 1673b(a) in a preliminary investigation is permissible.

Page 998

OPINION

I. Introduction 4

The important question before this court involves a statute so fundamental to the application of the United States antidumping laws that an introductory listing of implementing procedures appears appropriate. See generally Horlick, Summary of Procedures Under the United States Antidumping and Countervailing Duty Laws, 58 St. John's L.Rev. 828 (1984).

Normally, as in this case, proceedings are initiated when petitions are filed by interested parties on the same day with the ITC and ITA, Sec. 1673a(b)(2), though ITA may self-initiate an investigation, 19 U.S.C. Sec. 1673a(a); see 19 C.F.R. Sec. 353.35 (1985).

A normal antidumping duty proceeding involves five stages:

(1) The ITA decides within twenty days of receiving a petition whether to initiate an investigation. 19 U.S.C. Sec. 1673a(c); see 19 C.F.R. Sec. 353.37(a) (1985). An investigation will be initiated if the petition alleges the necessary elements for imposition of a duty and is accompanied by information "reasonably available to the petitioner supporting the allegations." 19 U.S.C. Sec. 1673a(c); ITA's self-initiated investigations are based on "information available to it." 19 U.S.C. Sec. 1673a(a); see United States v. Roses, Inc., 706 F.2d 1563, 1566 (Fed.Cir.1983). If ITA finds a petition insufficient an investigation is not initiated, 19 U.S.C. Sec. 1673a(c)(3), and any investigation initiated by ITC is terminated. 19 U.S.C. Sec. 1673b(a).

(2) If ITA has not found the petition insufficient, ITC must preliminarily determine within 45 days of the filing of the petition "whether there is a reasonable indication" that a domestic industry is being materially injured or threatened with material injury. 19 U.S.C. Sec. 1673b(a). ITC bases its preliminary determination on questionnaires sent to importers and domestic interests, public conferences, post conference briefs, and exhibits. If that determination be in the negative, ITC terminates the investigation. Id.; see 19 C.F.R. Sec. 207.18.

(3) If ITC finds a reasonable indication of injury, ITA must preliminarily determine, within 160 days of the petition filing date (subject to extension of up to 210 days, 19 U.S.C. Sec. 1673b(c)(1)), whether there is a "reasonable basis to believe or suspect" that the merchandise is being sold, or is likely to be sold, at LTFV. 19 U.S.C. Sec. 1673b(b)(1); see 19 C.F.R. Sec. 353.39. An affirmative preliminary LTFV determination results in suspension of liquidation of duties and in posting of bonds for the merchandise. 19 U.S.C. Sec. 1673b(d)(1)-(2). A negative preliminary determination prevents imposition of those provisional remedies but does not...

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