975 F.2d 807 (Fed. Cir. 1992), 91-1173, Trent Tube Div., Crucible Materials Corp. v. Avesta Sandvik Tube AB

Docket Nº:91-1173.
Citation:975 F.2d 807
Party Name:TRENT TUBE DIVISION, CRUCIBLE MATERIALS CORPORATION; Damascus Tubular Products; Allegheny Ludlum Corporation; and United Steelworkers of America, AFL-CIO-CLC, Plaintiffs-Appellees, and Armco-Specialty Steel Division and Carpenter Technology Corporation, Plaintiffs, and The United States International Trade Commission, Defendant-Appellee, v. AVESTA
Case Date:July 27, 1992
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 807

975 F.2d 807 (Fed. Cir. 1992)

TRENT TUBE DIVISION, CRUCIBLE MATERIALS CORPORATION;

Damascus Tubular Products; Allegheny Ludlum

Corporation; and United Steelworkers of

America, AFL-CIO-CLC,

Plaintiffs-Appellees,

and

Armco-Specialty Steel Division and Carpenter Technology

Corporation, Plaintiffs,

and

The United States International Trade Commission, Defendant-Appellee,

v.

AVESTA SANDVIK TUBE AB and Avesta Stainless, Inc.,

Defendants-Appellants.

No. 91-1173.

United States Court of Appeals, Federal Circuit

July 27, 1992

Rehearing Denied Aug. 27, 1992.

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Kathleen Weaver Cannon, Collier, Shannon & Scott, of Washington, D.C., argued

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for plaintiffs-appellees. With her on the brief were David A. Hartquist, Nicholas D. Giordano and Stephen A. Jones.

William T. Kane, Office of General Counsel, Intern. Trade Com'n, of Washington, D.C., argued for defendant-appellee. With him on the brief were Lyn M. Schlitt, General Counsel, and James A. Toupin, Assistant General Counsel.

Patrick C. Reed, Freeman, Wasserman & Schneider, of New York City, argued for defendants-appellants. With him on the brief were Jack Gumpert Wasserman and Al J. Daniel, Jr.

Before MICHEL, Circuit Judge, BENNETT, Senior Circuit Judge, and PLAGER, Circuit Judge.

PLAGER, Circuit Judge.

Avesta Sandvik Tube AB and Avesta Stainless Inc. (collectively Avesta) appeal from two decisions of the United States Court of International Trade. The first decision remanded, for further evaluation, the determination of Appellee The United States International Trade Commission (ITC or Commission) that certain imported welded stainless steel pipes and tubes from Sweden did not cause or threaten to cause material injury to the domestic industry. Trent Tube Division, Crucible Materials Corp. v. United States, 741 F.Supp. 921 (1990) (hereinafter Trent Tube/CIT-I ). On remand, the ITC reached the opposite conclusion--that the accused imports do materially injure the domestic industry. The Court of International Trade then upheld the ITC's remand determination. Trent Tube Division, Crucible Materials Corp. v. United States, 752 F.Supp. 468 (1990) (hereinafter Trent Tube/CIT-II ). Both of these decisions of the Court of International Trade--to remand the ITC's initial determination and to affirm the ITC's remand determination--are at issue in this appeal; both are affirmed.

BACKGROUND

In October of 1986, a group of domestic manufacturers, calling themselves the Specialty Tubing Group, filed an antidumping petition with the ITC and the Department of Commerce (Commerce), pursuant to 19 U.S.C. § 1673a(b)(1) (1982). The petition alleged that sales of certain imports from Sweden at less than fair value (LTFV) were causing or threatening to cause material injury to the domestic industry for both welded and seamless stainless steel pipes and tubes. See 19 U.S.C. § 1673.

Commerce determined that the filing of the petition satisfied the statutory requirements and that the accused Swedish imports of stainless steel hollow products, both welded and seamless, were in fact being sold at LTFV within the contemplation of 19 U.S.C. § 1673(1). In the final investigation conducted by the ITC, it was concluded that the domestic industry for welded stainless steel pipes and tubes is not materially injured or threatened with material injury by the accused imports, while the domestic industry for seamless stainless steel pipes and tubes is materially injured by the imports. Stainless Steel Pipes and Tubes From Sweden, Invest. No. 731-TA-354 (Final), USITC Pub. No. 2033, 10 ITRD 1374 (Nov.1987) (hereinafter ITC Pub. 2033 ). 1 Only the first of these determinations, regarding the welded products, is at issue here. 2 The ITC's majority report, in its "Views of the Commission," separately addressed the conclusions that, regarding the effect of the accused welded imports on the domestic industry, 1) there is no actual material injury caused by the imports, and 2) the imports present no

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threat of material injury. 3 In support of its conclusion that no material injury is threatened by the imports, the report explicitly referred to and discussed the factors required statutorily to be considered. ITC Pub. 2033, at 18-20. See also 19 U.S.C. § 1677(7)(F)(i, ii) (Supp. II 1984).

However, regarding its conclusion that no material injury is already being caused by the subject imports, the report simply noted that "[b]ased on considerations that each of us discusses in separate Additional Views, we determine that there is no material injury by reason of [the accused] LTFV imports...." ITC Pub. 2033, at 17. Those Additional Views regarding the welded products were attached to the majority report. 4

Appellees Trent Tube Division, Crucible Materials Corporation; Damascus Tubular Products; Allegheny Ludlum Corporation; and United Steelworkers of America, AFL-CIO-CLC (collectively Trent Tube) brought an action in the Court of International Trade challenging the ITC's determination regarding the welded imports. Trent Tube challenged the determinations of each of the Commissioners in the majority--Liebeler, Brunsdale and Rohr--by attacking not the joint majority report, but rather the respective individual Additional Views. See Trent Tube/CIT-I, 741 F.Supp. at 924.

The Court of International Trade thoroughly analyzed ITC Pub. 2033, and concluded, in an opinion dated June 20, 1990, that Brunsdale's and Rohr's analyses and determinations were supported by substantial evidence on the record and otherwise were in accordance with law. Trent Tube/CIT-I, 741 F.Supp. at 931, 935. However, the Court held that Liebeler's analysis and determination lacked a proper foundation, and focused improperly, at least in major part, on the intent of the importer and on injury to competition rather than to the domestic industry. 741 F.Supp. at 926-27 & 935. The Court of International Trade explained that

it appears that [Liebeler] has failed to examine the factors outlined in section 1677(7)(C)(iii) [regarding consideration of the impact on the affected industry.] It is also unclear whether or not [Liebeler] considered the impact of the Swedish imports on domestic producers as set out in section 1677(7)(B)(iii). Since these factors have not been examined as they must be to comply with the statute, the Court holds that Chairman Liebeler's determination is not supported by substantial evidence on the record and is not in accordance with law. Therefore, her determination is remanded with instructions to evaluate the investigation in relation to the factors outlined in section 1677(7)(C)(iii) and section 1677(7)(B)(iii).

741 F.Supp. at 927.

On remand, however, the ITC came to a different conclusion altogether. Changes in the Commission membership which had occurred in the interim accounted for the difference. Liebeler and Eckes had both departed. The remaining three members of the Commission all readopted their original views in toto--Brunsdale and Rohr their earlier negative determinations, and Lodwick his earlier positive determination. Commissioner Newquist, a new addition since the original decision, did not explain Liebeler's views but instead separately concluded that the accused imports did cause material injury. Welded Stainless Steel Pipes and Tubes From Sweden, Invest. No. 731-TA-354 (Final) (Remand), USITC Pub. No. 2304, 12 ITRD 2387 (Aug.1990) (hereinafter ITC Pub. 2304 ).

The vote was 2-2, but a tie is deemed to be a determination that the domestic industry is materially injured by the imports. 19

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U.S.C. § 1677(11). Thus the ITC determination on remand was that the accused imports are causing material injury to the domestic industry for welded stainless steel pipes and tubes--the reverse of the original determination.

Again, an action was brought in the Court of International Trade; this time Avesta challenged the ITC's remand determination. Avesta argued that the ITC did not comply with the specific remand instructions of the Court of International Trade, and that the remand determination was not supported by substantial evidence on the record and was otherwise not in accordance with the law.

Specifically, Avesta contended that Commissioner Newquist ignored the instructions to explain Chairman Liebeler's analysis, in relation to the factors outlined in 19 U.S.C. § 1677(7)(C)(iii) and 1677(7)(B)(iii) (1982). Trent Tube/CIT-II, 752 F.Supp. at 470-71. Avesta also argued that the instructions compelled Commissioners Lodwick and Newquist to adopt the views of the original majority, whose determination had already been found to be supported by substantial evidence and otherwise in accordance with the law. Thus, Avesta concluded, the remand determination must be limited to providing an explanation in support of those views rather than to undertaking a de novo analysis of the facts of record.

In an opinion dated November 27, 1990, Judge Carman, who had also heard the original action before the Court of International Trade, laid out the scope of review:

This Court must examine the individual views of each Commissioner [Lodwick and Newquist] who made an affirmative determination on remand for compliance with this Court's remand instructions and to see if these determinations are supported by substantial evidence on the record or [sic--and] otherwise in accordance with law.

Trent Tube/CIT-II, 752 F.Supp. at 472. Acknowledging that Liebeler departed from the Commission before the case was remanded, the Court noted that

remands to the Commission ordering explanations of the views of individual members require an 'institutional response' irrespective of the makeup of the Commission's membership at the time it receives remand...

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