Suramerica de Aleaciones Laminadas, C.A. v. U.S.
| Decision Date | 11 June 1992 |
| Docket Number | Nos. 91-1015,91-1050 and 91-1055,s. 91-1015 |
| Parties | SURAMERICA de ALEACIONES LAMINADAS, C.A., Conductores de Alumino del Caroni, C.A., Industria de Conductores Electricos, C.A., and Corporacion Venezolana de Guayana, Plaintiffs-Appellees, v. The UNITED STATES, United States International Trade Commission and Southwire Company, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Federal Circuit |
Claire E. Reade, Arnold & Porter, of Washington, D.C., argued for plaintiffs-appellees. With her on the brief were Michael A. Faber, Nancy L. Perkins and Jack H. Cleland.
Lawrence J. Bogard, McKenna & Cuneo, of Washington, D.C., argued, for defendants-appellants. With him on the brief were Victor M. Wigman and Ralph C. Patrick, Wigman & Cohen, P.C., of Arlington, Va., of counsel. Abigail A. Shaine, Atty., Internl. Trade Com'n, of Washington, D.C., argued, for defendants-appellants. With her on the brief were Lyn M. Schlitt, Gen. Counsel and James A. Toupin, Asst. Gen. Counsel. Of counsel was Carol McCue Verratti, Internl. Trade Com'n. David M. Cohen, Director, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for defendants-appellants. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., and Vanessa P. Sciarra, Atty. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin., Berniece A. Browne, Sr. Counsel for Antidumping Litigation and Robert J. Heilferty, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.
Before ARCHER, Circuit Judge, MILLER, Senior Circuit Judge, and PLAGER, Circuit Judge.
Appellants are the United States, acting through the Department of Commerce (Commerce), the United States International Trade Commission (ITC), and Southwire Company (Southwire). They appeal from a decision of the Court of International Trade, 746 F.Supp. 139 (CIT 1990). After an investigation spurred by a petition filed by Southwire, the ITC and Commerce promulgated antidumping and countervailing duty determinations and issued corresponding orders regarding certain Venezuelan imports. The Court of International Trade's decision reversed the determinations and vacated the orders. We reverse.
Southwire is the leading domestic producer of electrical conductor aluminum redraw rod (EC rod)--wrought rod of aluminum, electrically conductive and containing at least ninety-nine percent by weight aluminum. Appellees Suramerica de Aleaciones Laminadas, C.A. (Suramerica), Conductores de Aluminio del Caroni, C.A., and Industria de Conductores Electricos, C.A. are Venezuelan companies (collectively, Venezuelan producers) that produce EC rod. Appellee Corporacion Venezolana de Guayana (CVG) is a Venezuelan Government development authority that acts as a holding company for Venezuela's two primary EC rod producers.
On July 14, 1987, Southwire filed petitions with Commerce, urging antidumping and countervailing duty investigations of certain imports of EC rod from Venezuela. As statutorily required, the petitions indicated that Southwire was filing them "on behalf of" the domestic industry. Southwire emphasized that, in addition to representing its over one-third of the domestic EC rod production, Southwire had also contacted three of the other five domestic producers, whose total production, when added to Southwire's, constituted the bulk of production of the domestic industry. These other producers 1 were said to have assured Southwire that "while they have not formally joined in the petition, ... they do not oppose it."
Southwire's antidumping petition indicated that the subject imported EC rods were being, or were likely to be, sold in the United States at substantially less than fair market value. This dumping of EC rods was said to materially injure, or threaten to materially injure, the domestic EC rod industry.
Southwire's countervailing duty petition indicated that the Venezuelan government was directly and indirectly providing subsidies for the manufacture of the EC rods to be exported to the United States. Those subsidies were described as causing or threatening to cause material injury to the domestic industry.
On August 3, 1987, Commerce began its antidumping and countervailing duty investigations into Southwire's contentions. Commerce notified the ITC of its investigations, and on August 28, 1987, the ITC determined that there was a reasonable indication that Venezuelan imports of EC rod were causing material injury to the domestic industry.
On August 31, 1987, Reynolds Metal Company (Reynolds) sent a letter to Commerce. Reynolds stated that, while it did not wish to take a position on the EC rod investigations, it "fundamentally oppose[d] any unfairly traded imports."
On September 24, 1987, Alcoa Conductor Products Company (Alcoa Conductor), a division of Aluminum Company of America (Alcoa), sent a letter to Commerce stating that it did not support Southwire's petition. Upon Commerce's request for further information, Alcoa Conductor replied in October that:
1) it was speaking on behalf of Alcoa as well as for itself;
2) Alcoa's share of the domestic EC rod market was estimated at 22% for 1986, and at 24% for the first three quarters of 1987;
3) Alcoa's 1986 domestic production and importation from Venezuela 2 of EC rod were 51,417 tons and 17,348 tons, respectively; for three quarters of 1987, the figures were 35,000 tons and 7,809 tons;
4) on September 30, 1987, Alcoa sold its domestic electrical conductor manufacturing business to Alcoa Conductor, an affiliate of Suramerica; and
5) while Alcoa has contracted to sell EC rod to Alcoa Conductor, Alcoa Conductor intends also to purchase EC rod from Venezuelan or other competitive sources.
Alcoa Conductor also noted that its earlier statement that Alcoa does not support Southwire's petitions "means that Alcoa opposes the Petitions on which the investigations are based."
The Aluminum Trades Council (the Council), a trade union association, sent a letter to Commerce on November 12, 1987, opposing Southwire's petitions. The Council expressed concern that if the result of investigations pursuant to Southwire's petitions led to a lack of available EC rod, jobs could be jeopardized. Commerce, however, responded that the Council did not "represent an industry producing or wholesaling [EC rod]." Thus, the Council was not an "interested party," and was unable to file an opposition which could be considered by Commerce.
On June 22, 1988, Commerce issued its final determinations in both the antidumping and countervailing duty investigations. Commerce concluded that certain Venezuelan EC rod was being or likely to be sold in the United States at less than fair value, and that Venezuelan manufacturers, producers or exporters were receiving subsidies estimated to be 64.62% ad valorem. Commerce also noted that it had notified the ITC of its determinations, and that the ITC would determine whether the imports materially injured or threatened to materially injure the domestic EC rod industry.
In both determinations Commerce stated that, based on the respective statutory provisions governing standing of parties to bring petitions to commence investigations, it
relies upon the petitioner's representation that it has filed "on behalf of" the domestic industry until it is affirmatively shown that a majority of the domestic industry opposes the petition.... [N]either the [statutory framework] nor its legislative history restricts access to the unfair trade laws by requiring that parties petitioning for relief ... establish affirmatively that a majority of the members of the relevant domestic industry support the petition. The only requirement is that the party filing the petition act as the representative of the domestic industry.
Commerce also made it clear that "[when] domestic industry members opposing a petition provide a clear indication that there are grounds to doubt a petitioner's standing, [Commerce] will evaluate the opposition to determine whether the opposing parties ... represent a majority of the domestic industry." Commerce conducts its evaluation of the opposition generally by requesting the opponents of a petition to supply information regarding their stakes in the domestic industry. There usually is no canvas of the entire domestic industry. In this manner, Commerce determines whether the affirmative opposition in fact reaches a majority of the domestic industry.
Based on the record before it, Commerce concluded that there was no showing in this case that a majority of the domestic industry opposed Southwire's petitions. Commerce went on to support its conclusions that the subject Venezuelan EC rod was being subsidized, and was sold or likely to be sold at less than fair market value.
Appellees, the Venezuelan producers and CVG, commenced their action in the Court of International Trade to contest Commerce's determinations, as well as ITC's subsequent determinations and the resulting antidumping and countervailing duty orders. Appellants Commerce, the ITC, and Southwire opposed the request to reverse the determinations and vacate the orders.
The Court of International Trade held 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)." Suramericana de Aleaciones Laminadas, C.A. v. United States, 746 F.Supp. 139, 141 (CIT 1990). The ensuing investigation was therefore declared a nullity, and the agency determinations were vacated. Suramericana, 746 F.Supp at 140. The remaining issues raised in the suit, challenging Commerce's and the ITC's determinations on the merits, were not addressed.
The Court of International Trade based its conclusions "[o]n the threshold issue of the standing of petitioner Southwire to...
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