Kern-Liebers USA, Inc. v. US
Decision Date | 23 March 1995 |
Docket Number | Slip Op. 95-50. Court No. 93-09-00551-AD. |
Citation | 19 CIT 393,881 F. Supp. 618 |
Parties | KERN-LIEBERS USA, INC., Plaintiff, v. The UNITED STATES, Defendant, and AK Steel Corporation, Bethlehem Steel Corporation, Gulf States Steel Inc. of Alabama, Inland Steel Industries, Inc., LTV Steel Co., Inc., National Steel Corporation, Sharon Steel Corporation, U.S. Steel Group A Unit of USX Corporation, and WCI Steel, Inc., Intervenor-Defendants. |
Court | U.S. Court of International Trade |
Porter, Wright, Morris & Arthur, Washington, DC (Leslie Alan Glick), for plaintiff.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, and Velta A. Melnbrencis, Asst. Director, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice; and
Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce (Jeffrey C. Lowe), Washington, DC, of counsel, for defendant.
Skadden, Arps, Slate, Meagher & Flom, Washington, DC (Robert E. Lighthizer and John J. Mangan) and Dewey Ballantine, Washington, DC (Alan Wm. Wolff, Michael H. Stein, Bradford L. Ward and Guy C. Smith), for intervenor-defendants.
The plaintiff importer of merchandise described as "certain cold-rolled seat belt retractor spring steel with a specific chemical composition, restricted inclusion levels, and a particular microstructure and tensile strength"1 complains of the refusal of the International Trade Administration, U.S. Department of Commerce ("ITA") to exclude such imported material from the scope of its final determination of sales of certain cold-rolled steel products from Germany at less than fair value, 58 Fed.Reg. 37,136 (July 9, 1993), amended, 58 Fed.Reg. 44,170 (Aug. 19, 1993).
The record of the proceedings before the ITA indicates that an identical product is not manufactured domestically, nor did the underlying petition of the domestic industry focus on the imported product per se. Whereupon the respondent importer requested exclusion from the ensuing investigation and affirmative determination based on the following grounds, among others:
In denying exclusion, the ITA stated its position generally as to all the claims regarding scope, including that now at bar, to wit:
In its complaint filed herein, the plaintiff avers, inter alia, that the ITA "failed in its statutory duty to investigate and analyze each scope exclusion request individually and make specific findings of fact" para. 4 and that the agency should not have relied on the like-product analysis of the International Trade Commission ("ITC"). The complaint also states that the ITA did conclude that hot-rolled seat-belt retractor steel was not within the scope of its determination and that, since the same special characteristics which distinguish that product apply to the cold-rolled counterpart, the determination on its face is an inconsistent application of the facts and the law. The plaintiff prays that the court either reverse the agency's determination or, at a minimum, remand to the ITA for specific findings in accordance with the factors approved by the Court of International Trade in Diversified Products Corp. v. United States, 6 CIT 155, 572 F.Supp. 883 (1983), and subsequent cases. This relief is sought via a motion for judgment on the agency record per CIT Rule 56.2.
The defendant opposes the motion on grounds that the ITA has broad discretion to define the scope of its investigations; that the scope defined herein, namely, cold-rolled carbon steel flat products, covers plaintiff's retractor steel in accordance with the petition's description of merchandise and the ITC's determination(s); and that analysis a la Diversified Products confirms inclusion. The intervenor-defendants add in further opposition that they are not...
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