Avesta AB v. US, Court No. 87-07-00799.
| Decision Date | 27 October 1989 |
| Docket Number | Court No. 87-07-00799. |
| Citation | 724 F. Supp. 974 |
| Parties | AVESTA AB and Avesta Stainless, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Allegheny Ludlum Steel Corp., Armco Inc., Jessop Steel Corp., J & L Specialty Products Corp., Washington Steel Corp. and United Steelworkers of America, AFL/CIO-CLC, Defendants-Intervenors. |
| Court | U.S. Court of International Trade |
Freeman, Wasserman & Schneider, Jack Gumpert Wasserman, Patrick C. Reed, New York City, for plaintiffs.
Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel, Office of the Gen. Counsel, U.S. Intern. Trade Com'n, and Jack M. Simmons, III, Washington, D.C., for defendant.
Collier, Shannon, Rill & Scott, David A. Hartquist, Paul C. Rosenthal, and Patrick
B. Fazzone, Washington, D.C., for defendants-intervenors.
Plaintiffs seek review of the determination of the United States International Trade Commission (hereinafter Commission or ITC) not to institute an investigation under section 751(b) of the Tariff Act of 1930 (19 U.S.C. § 1675(b) (1982 & Supp. V 1987)) to determine whether an industry in the United States would be materially injured, threatened with material injury or whether the establishment of an industry in the United States would be materially retarded by reason of dumped imports of stainless steel plate from Sweden if the outstanding antidumping duty order on that merchandise were modified or revoked. 52 Fed.Reg. 24,541 (1987).
On May 1, 1973, the United States Tariff Commission (now known as the International Trade Commission) determined that an industry in the United States was materially injured by reasons of imports of stainless steel plate from Sweden which the Secretary of the Treasury had determined to be sold at less than fair value. Stainless Steel Plate from Sweden, TC Pub. No. 573, Inv. No. AA1921-114 (1973). On June 5, 1973 the Department of Treasury issued a finding of dumping (T.D. 73-157) and notice was filed in the Federal Register. 38 Fed.Reg. 15,079 (1973).
On July 8, 1985, plaintiffs Avesta AB and Avesta Stainless, Inc. filed their first request pursuant to section 751(b) of the Tariff Act of 1930 with the ITC to review the Commission's affirmative decision in investigation number AA1921-114. The Commission determined that plaintiffs' petition did not show changed circumstances sufficient to warrant a review of the investigation. 50 Fed.Reg. 43,613 (1985). Plaintiffs brought an action in this Court seeking an order invalidating and vacating the Commission's determination. Plaintiffs' motion was denied and the determination was sustained. Avesta AB v. United States, 12 CIT ___, 689 F.Supp. 1173 (1988) (hereinafter Avesta I).
On February 25, 1987 plaintiffs made a second request pursuant to section 751(b) of the Tariff Act of 1930, to review the affirmative determination in the investigation. The Commission again determined pursuant to 19 U.S.C. § 1675(b) and 19 C.F.R. § 207.45 (1987) that the petition did not show changed circumstances sufficient to warrant institution of a review investigation. 52 Fed.Reg. 24,541 (1987).
Plaintiffs commenced the instant case seeking an order invalidating and vacating the Commission's determination pursuant to the second review request.
Plaintiffs allege that the following are changed circumstances sufficient to warrant review of the ITC's determination:1
(1) The 1976 acquisition by plaintiffs of the New Castle, Indiana mill resulted in the following changes:
(a) the average annual import volume and import penetration ratio decreased by more than sixty percent after the acquisition, taking into account the exclusion of three non-stainless-steel-plate products from the import statistics;
(b) total imports and imports as a percentage of apparent consumption were lower in every year after the acquisition than they were during the first year plaintiffs owned the mill, or in 1974 and 1975, the only full years before the acquisition when the finding of dumping was in effect;
(c) The import statistics show that import levels decreased significantly after plaintiffs' acquisition of the Indiana mill. Plaintiffs contend that this result was independent of the finding of dumping and that the current import levels are de minimis; and
(d) Plaintiffs have made changes in import behavior such as decreasing their imports significantly after acquiring the Indiana mill and changing their product mix by discontinuing their imports of hot-rolled plates of standard stainless steel grades;
(2) The quantity of imports of three nonstainless-steel-plate products are set forth in the review request and their exclusion is requested from the import statistics;
(3) The voluntary restraint agreements (hereinafter VRAs) that have been established since the filing of the first review request resulted in the following changes:
(a) plaintiffs are now placed at a competitive disadvantage in pricing as compared to imports from VRA countries; and
(b) the VRA program has contributed to an improvement in the condition of the United States industry, thereby decreasing the likelihood that the industry would suffer material injury in the event of revocation;
(4) Swedish exports of hot- and cold-rolled stainless steel plate to European Community (hereinafter EC) member-countries increased by over 250 percent from 1971 to 1985. The second review request contains a data series which lists exports of hot- and cold-rolled stainless steel plate from Sweden to the EC from 1971 through the first nine months of 1986;
(5) In 1986, plaintiffs began exporting cold-rolled plate to the United States. Therefore exports of cold-rolled plate to the European Community are no longer irrelevant to the ITC's determination;
(6) The second review request asked the Commission to institute an investigation to determine whether the finding of dumping should be modified to exclude future imports of two patented products and the wide KBR Plate which the Review Request shows to be the only continuously-made cold-rolled stainless steel plate in widths of sixty inches or more; and
(7) In a series of corporate consolidations in Sweden, the stainless steel plate industry has shrunk from four producers in 1972 to a single producer in 1987, with a consistently decreasing capacity to produce stainless steel products.
Defendant and defendant-intervenors contend that the determination of the Commission was not arbitrary, capricious or an abuse of discretion and was in accordance with law and therefore should be upheld in all respects.2
The Commission has determined that plaintiffs' review request "did not show changed circumstances sufficient to warrant institution of a review investigation." Views of Commissioners Alfred Eckes, Seeley Lodwick, and David Rohr, R.Doc. 17 (hereinafter Views of Commissioners) at 7. In Avesta I, this Court stated that "the standard applicable in a preliminary injury determination under § 1673b(a) is different from the standard governing a determination of changed circumstances sufficient to warrant review of an affirmative injury determination." 12 CIT at ___, 689 F.Supp. at 1175. This Court noted:
While the decision to undertake a review is a threshold question, this decision, pursuant to statute and regulations, may be made only when it reasonably appears that positive evidence adduced by the petitioner together with other evidence gathered by the Commission leads the ITC to believe that there are changed circumstances sufficient to warrant review. ... The party seeking revocation bears the initial burden of showing the existence of such changed circumstances. The party need not establish that the crucial factors that lead to the ITC's affirmative injury determination no longer exist since the application of such a burden would eliminate the need for a review investigation once the decision to undertake one has been made.
12 CIT at ___, 689 F.Supp. at 1181 (footnote omitted).
Plaintiffs contend that the ITC's determination does not set forth any standard of law and that defendant's brief argues that (1) the Commission has uncircumscribed discretion to decide whether changed circumstances are sufficient to warrant a review and (2) the petitioner must sustain the same full burden of proof in the threshold changed circumstances determination and the ultimate revocation determination.
Defendant denies that either the Commission or its counsel has ever asserted that the ITC has "uncircumscribed discretion" or that a petitioner must bear the same burden in the instituting stage as in the actual investigation.
The standard of review of a decision not to institute a section 751(b) investigation is whether the determination is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 19 U.S.C. §§ 1516a(a)(1)(B), 1516a(b)(1)(A) (1982 & Supp. V 1987). This standard of review Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207 (1962)).
Plaintiffs specifically contend that (1) the three majority commissioners failed to apply the correct legal standard and failed to articulate any applicable legal standard and (2) the findings by the three majority commissioners are contradicted by the administrative record and lack rational basis in fact.
Plaintiffs contend that the...
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Avesta AB, Inc. v. U.S.
...to warrant further review. As before, the Court of International Trade affirmed the ITC's decision. Avesta AB v. United States, 724 F.Supp. 974 (Ct.Int'l Trade 1989) (Avesta II ). It is from that affirmance that Avestathat the allegedly uniquely Swedish types of plate were neither factually......