Grupo Indus. Camesa v. US

• Decision Date: 18 May 1994
• Docket Number: Court No. 93-04-00236. Slip Op. No. 94-82.
• Citation: 853 F. Supp. 440,18 CIT 461
• Parties: GRUPO INDUSTRIAL CAMESA, et al., Plaintiffs, Wire Rope Importers' Association, Plaintiff-Intervenor, v. UNITED STATES, Defendant, The Committee of Domestic Steel Wire Rope and Specialty Cable Manufacturers, Defendant-Intervenor.
• Court: U.S. Court of International Trade

853 F. Supp. 440

18 CIT 461

GRUPO INDUSTRIAL CAMESA, et al., Plaintiffs Wire Rope Importers' Association, Plaintiff-Intervenor, v. UNITED STATES, Defendant The Committee of Domestic Steel Wire Rope and Specialty Cable Manufacturers, Defendant-Intervenor.

Court No. 93-04-00236. Slip Op. No. 94-82.

United States Court of International Trade.

May 18, 1994.

Shearman & Sterling, Thomas B. Wilner, Jeffrey M. Winton, Joshua A. Newberg and David C. Frederick, Washington, DC, for Grupo Indus. Camesa, Commercial Camesa, Cables Camesa, and Camesa, Inc.

Klayman & Associates, P.C., Larry Klayman, Washington, DC, for Wire Rope Importers' Ass'n.

Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Com'n, Lyle B. Vander Schaaf, Washington, DC, for United States.

Harris & Ellsworth, Herbert E. Harris II, Cheryl Ellsworth, Jeffrey S. Levin and Jennifer de Laurentiis, Washington, DC, for the Committee of Domestic Steel Wire Rope and Specialty Cable Mfrs.

OPINION

DiCARLO, Chief Judge.

Plaintiffs, foreign producers of steel wire rope from Korea and Mexico, move pursuant to USCIT R. 56.2, to challenge the final affirmative determination of the United States International Trade Commission that an industry within the United States is materially injured by reason of imports of steel wire rope from Korea and Mexico. Steel Wire Rope from the Republic of Korea and Mexico, Inv. Nos. 731-TA-546 and 547 (Final), USITC Pub. 2613 (March, 1993) ("Determination"); 58 Fed.Reg. 16,206 (1993) (notice). This court has jurisdiction under 28 U.S.C. § 1581(c) (1988). The court affirms the Commission's determination.

STANDARD OF REVIEW

In an antidumping investigation the Commission is to make a final determination whether a U.S. industry is materially injured or threatened with material injury by reason of imports of the merchandise that has been found to be sold at less than fair value (LTFV). 19 U.S.C. § 1673d(b)(1) (1988). This court must uphold the Commission's final determination 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) (1988). Substantial evidence is "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)).

DISCUSSION

1. Whether Commissioners Not Present at Part or All of the Administrative Hearing May Vote on the Final Determination

The Commission, following an investigation and an administrative hearing, reached its affirmative determination of injury by a three-to-three vote.¹ Of the three Commissioners voting affirmatively, Chairman Newquist did not attend the hearing, and Commissioner Rohr was present for only part of the hearing.

Plaintiffs challenge the vote as contrary to law, claiming that acceptance of the votes of Chairman Newquist and Commissioner Rohr violates 19 U.S.C. § 1677c (1988), which requires the Commission to hold a hearing upon the request of any party to the investigation before making a final determination. Plaintiffs further assert that allowing the absent Commissioners to vote violates the principle laid down in Morgan v. United States, that "the one who decides must hear." 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936). Plaintiffs have not provided the court with any statute, judicial precedent or indication of congressional intent directly supporting their position. The court finds Plaintiffs' position lacks merit.

19 U.S.C. § 1677c(a)(1) provides that "the Commission shall ... hold a hearing in the course of an investigation upon the request of any party to the investigation before making a final determination...." Plaintiffs assert that Congress intended the "Commission" voting upon the final determination be the same as the "Commission" holding the hearing, and that Chairman Newquist and Commissioner Rohr were not part of Commission holding the hearing, and therefore were not eligible to vote.

The statute does not address the issue of whether voting Commissioners must attend the hearing. "If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted). In reviewing the agency's answer, "a court may reject an agency interpretation that contravenes clearly discernible legislative intent," but "its role when that intent is not contravened is to determine whether the agency's interpretation is `sufficiently reasonable.'" Am. Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986) (citations omitted).

Defendant maintains that the Commission has interpreted the statute by providing that public hearings held in "nonadjudicative investigations will be conducted by the Commission or by one or more Commissioners." 19 C.F.R. § 201.13(b)(1) (1993) (emphasis added). Plaintiffs do not dispute that the hearing in question complied with this regulation. Instead, Plaintiffs argue that the regulation, which deals with nonadjudicative hearings, is inapplicable to this hearing because the hearing held by the Commission pursuant to 19 U.S.C. § 1677c is adjudicative in nature.

The court disagrees with plaintiffs' characterization of the hearing. Congress has stated that the antidumping proceedings are "investigatory rather than adjudicatory in nature." H.R.Rep. No. 317, 96th Cong., 1st Sess. 77 (1979); accord S.Rep. No. 249, 96th Cong., 1st Sess. 100 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 486; see also Pasco Terminals, Inc. v. United States, 83 Cust.Ct. 65, 76, 477 F.Supp. 201, 212 (1979), aff'd, 68 C.C.P.A. 8, C.A.D. 1256, 634 F.2d 610 (1980) (the hearing provided as part of the antidumping investigation is conducted "for the sole purpose of assisting the Commission in obtaining relevant and material facts ... and not in the context of an adversary proceeding.") The statute itself exempts the hearing from the requirements of the Administrative Procedure Act, see 19 U.S.C. § 1677c(b), and provides for a hearing only "upon the request of any party," 19 U.S.C. § 1677c(a)(1), which further indicates that Congress intended the hearing to be non-adjudicative in nature.

Because an antidumping hearing is investigatory in nature, the Commission's regulation regarding the conduct of such hearing applies. See 19 C.F.R. § 201.13(b)(1). The hearing in question complied with that regulation, which permits the hearing to be conducted by "one or more Commissioners." Id.

Plaintiffs further argue that this case is controlled by Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, which states that "the one who decides must hear." Id. at 481, 56 S.Ct. at 912. According to Plaintiffs, Morgan requires this court to reject the vote of those commissioners absent from the hearing, because they did not "hear" all of the evidence.

Plaintiffs quote one sentence from Morgan out of its context. In Morgan, the Court was concerned that "if the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given." Id. at 480-81, 56 S.Ct. at 911 (emphasis added). The Court stated:

the weight ascribed by law to the agency findings ... rests upon the assumption that the officer who makes the findings has addressed himself to the evidence and upon that evidence has conscientiously reached the conclusions which he deems it to justify. That duty cannot be performed by one who has not considered evidence or argument. It is not an impersonal obligation. It is a duty akin to that of a judge. The one who decides must hear.

Id. at 481, 56 S.Ct. at 912 (emphasis added). The proceeding below did not violate Morgan's requirement that the one who decides must consider the evidence. Chairman Newquist and Commissioner Rohr had the benefit of the record containing a transcript of the hearing, and they are presumed to have considered all the evidence in the record. See Rhone Poulenc, S.A. v. United States, 8 CIT 47, 55, 592 F.Supp. 1318, 1326 (1984).

Plaintiffs do not attempt to rebut this presumption. Rather, Plaintiffs argue that, due to the conflicting testimony presented at the hearing on critical factual issues, Morgan requires more than simply a review of the cold transcript, particularly where, as here, the agency is sitting as the fact finder.

Neither Morgan itself, nor the cases that have been decided under Morgan, require such a result. Rather, "decisions of numerous and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him." Gearhart & Otis, Inc. v. SEC, 348 F.2d 798, 802 (D.C.Cir.1965) (footnotes omitted). Accordingly, the court holds that it was proper for Chairman Newquist and Commissioner Rohr to vote on the final determination.

2. Segmented Market Theory

The Commission is required to "evaluate all relevant economic factors which have a bearing on the state of the industry in the United States ... within the context of the business cycle and conditions of competition that are distinctive to the affected industry." 19 U.S.C. § 1677(7)(C)(iii) (1988) (emphasis added). Plaintiffs claim that the Commission failed to consider a "condition distinctive to the affected industry," that is, the U.S. steel wire rope market is segmented.

According to Plaintiffs, in the U.S. steel wire rope market, imported products compete only with like imported products, and domestic products compete only with like domestic products, and there is no...