Grupo Industrial Camesa v. U.S., 94-1436

• Decision Date: 10 June 1996
• Docket Number: No. 94-1436,94-1436
• Citation: 85 F.3d 1577
• Parties: GRUPO INDUSTRIAL CAMESA, Camercial Camesa, Cables Camesa and Camesa Inc., Plaintiffs-Appellants, and Wire Rope Importers' Association, Plaintiff, v. The UNITED STATES, Defendant-Appellee, and Committee Of Domestic Steel Wire Rope and Specialty Cable Manufacturers, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1577

85 F.3d 1577

18 ITRD 1362

GRUPO INDUSTRIAL CAMESA, Camercial Camesa, Cables Camesa and Camesa Inc., Plaintiffs-Appellants and Wire Rope Importers' Association, Plaintiff, v. The UNITED STATES, Defendant-Appellee and Committee Of Domestic Steel Wire Rope and Specialty Cable Manufacturers, Defendant-Appellee.

No. 94-1436.

United States Court of Appeals Federal Circuit.

June 10, 1996.

David C. Frederick, Shearman & Sterling, Washington, D.C., argued, for plaintiffs-appellants. With him on the brief were Thomas B. Wilner and Jeffrey M. Winton. Of counsel was Steven E. Rindner.

Lyle Vander Schaaf, Attorney, Office of the General Counsel, Washington, D.C., argued, for defendant-appellee. With him on the brief were Lyn M. Schlitt, General Counsel and James A. Toupin, Deputy General Counsel.

Herbert E. Harris, II and Cheryl Ellsworth, Harris & Ellsworth, Washington, D.C., for defendant-appellee, Committee of Domestic Steel Wire Rope and Specialty Cable Manufacturers.

Larry Klayman, Klayman & Associates, P.C., Washington, D.C., for plaintiff.

Before ARCHER, Chief Judge, BENNETT, Senior Circuit Judge, and NEWMAN, Circuit Judge.

ARCHER, Chief Judge.

Grupo Industrial Camesa et al. (Camesa) appeal the judgment of the United States Court of International Trade affirming the International Trade Commission's (Commission) final determination that during 1989 to 1992 an industry in the United States was materially injured by reason of imports of steel wire rope from Mexico and the Republic of Korea. Grupo Indus. Camesa v. United States, 853 F.Supp. 440 (Ct. Int'l Trade 1994). We affirm.

BACKGROUND

In April 1992 an antidumping action was filed against imports of steel wire rope from Mexico and Korea. The Department of Commerce determined that these imports were being sold in the United States at less than fair value, Steel Wire Rope from Mexico, 58 Fed.Reg. 7531 (Dep't Comm.1993) (final determination); Steel Wire Rope from Korea, 58 Fed.Reg. 11029, 11030 (Dep't Comm.1993) (final determination). The Commission conducted an investigation to determine whether, pursuant to 19 U.S.C. § 1673d(b)(1) (1988), ¹ the importation of the steel wire rope had materially injured, or threatened to materially injure, a United States industry. During the course of its investigation, the Commission held a hearing which one of its six commissioners did not attend. Another commissioner attended only part of the hearing. As a result of its investigation, the Commission determined by an equally divided vote (see 19 U.S.C. § 1677(11) (1994)) that an industry in the United States was materially injured by reason of the imports of steel wire rope. Steel Wire Rope from the Republic of Korea and Mexico, USITC Pub. 2613, Inv. Nos. 731-TA-546 & 547 (March 1993) (hereinafter "Final Determination").

Camesa, a Mexican producer of steel wire rope, appealed the Commission's determination to the Court of International Trade. Camesa argued that the commissioners who found material injury included the two who did not fully attend the hearing and that those two commissioners were not competent to vote. It also contended that the Commission's determination was inconsistent with the facts because the evidence showed that imported steel wire rope did not compete with domestic steel wire rope, and that the Commission's analysis was legally flawed because it failed to consider the industry's performance in the context of the business cycle as required by 19 U.S.C. § 1677(7)(C)(iii) (1994). The Court of International Trade held that it was not improper for the commissioners who did not attend the hearing to vote on the final determination and that the Commission's finding of material injury was supported by substantial evidence. Although the Commission did not make an explicit finding concerning the effect of the business cycle, the Court of International Trade held that it did consider the evidence in the context of the industry's business cycle. Camesa raises the same issues on appeal to this court.

DISCUSSION

We must determine whether the Court of International Trade correctly upheld the Commission's affirmative injury determination. See Armstrong Bros. Tool Co. v. United States, 67 C.C.P.A. 94, 626 F.2d 168, 170 (1980); see also Matsushita Elec. Indus. v. United States, 750 F.2d 927, 932 (Fed.Cir.1984). To do so, we reapply the standard set forth in the statute and must uphold the finding of material injury 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) (1994); see Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1559 (Fed.Cir.1984); Matsushita, 750 F.2d at 932. As the Supreme Court has stated "[s]ubstantial 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

A.

In the course of an antidumping investigation, 19 U.S.C. § 1677c commands that "the Commission shall ... hold a hearing ... upon the request of any party to the investigation before making a final determination" of material injury. 19 U.S.C. § 1677c(a) (1988). According to Camesa, the statutory requirement is only meaningful if the commissioners voting are present at the hearing. While conceding that the Commission may have authority to delegate the responsibility for conducting the hearing to a particular commissioner or to a hearing examiner, Camesa points out that the Commission has not done so here. Camesa argues that by virtue of 19 C.F.R. § 207.23, which provides that "[t]he Commission shall hold a hearing ... before making a final determination," the entire Commission must conduct the hearing.

The Court of International Trade, on the other hand, relied on the Commission's regulation at 19 C.F.R. § 201.13(b)(1), which provides that "[p]ublic hearings or conferences in nonadjudicative investigations will be conducted by the Commission or by one or more Commissioners." It found that because Congress had intended these investigations to be investigatory rather than adjudicatory in nature, the Commission complied with its own regulations when one or more of the commissioners attended the hearing. On appeal to this court, Camesa argues that the Court of International Trade's reliance on 19 C.F.R. § 201.13 was improper because that regulation has general applicability to public hearings, whereas 19 C.F.R. § 207.23 applies specifically to final injury determinations in antidumping cases.

Regardless of which regulation is applicable, the hearing held must satisfy the statutory hearing requirement of 19 U.S.C. 1677c. It is axiomatic that a regulation cannot expand the scope of the statute under which it is promulgated. See, e.g., Lykes Bros. S.S. Co. v. United States, 206 Ct.Cl. 354, 513 F.2d 1342, 1350 (1975) ("[I]t is well established that a regulation which 'operates to create a rule out of harmony with the statute, is a mere nullity.' " (quoting Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936))); Travelstead v. Derwinski, 978 F.2d 1244, 1250 (Fed.Cir.1992) (stating "rules cannot be promulgated that are contrary to statute"); Alaskan Arctic Gas Pipeline Co. v. United States, 831 F.2d 1043, 1050 (Fed.Cir.1987) (stating that a regulation must be in harmony with the statute under which it is promulgated). Section 207.23 simply restates the language of § 1677c that the Commission shall hold a hearing and does not specify whether the hearing should be conducted by the Commission or by individual commissioners, or whether the commissioners voting on the final determination need be present at the hearing. On the other hand, § 201.13, provides that hearings in nonadjudicative investigations will be conducted by the Commission or by one or more commissioners. Because the regulations can confer no more discretion to the Commission regarding the nature of the hearing than is reasonable under the statutory scheme, we look to what Congress meant when it commanded "the Commission" to hold a "hearing."

The type of hearing contemplated by § 1677c is not described anywhere in the statutory scheme. The only guidance provided by the text of the statute is in § 1677c(b) under the heading "procedures." That section only provides that the hearing shall be conducted after notice is published in the Federal Register, that a transcript shall be prepared and made available to the public, and that it shall not be subject to the provisions of 5 U.S.C. §§ 551-59 (the Administrative Procedure Act). 19 U.S.C. § 1677c(b) (1988). It does not indicate who must conduct the hearing or who may vote.

A review of the legislative history indicates that the hearing was intended to give the parties to a material injury investigation an opportunity to participate in the administrative process and present information. According to the Senate Report accompanying the legislation, the "[Commission] would be required to hold a hearing in the course of an investigation ... at any time prior to the making of a final determination" and these hearings would have to be "conducted in a manner designed to permit full presentation of information and views." Senate Comm. on Finance, Report on Trade Agreements Act of In this case Camesa had an opportunity to present fully its information and to respond to that of other parties. Indeed, it makes no allegation that it was denied a meaningful hearing. It only disagrees with the Commission's determination resulting from the hearing and the fact that two of the affirmatively voting commissioners did not attend part or all of the hearing. There is no requirement in the statute or legislative history that attendance during the hearing is a prerequisite to voting and we...