Gerdau Ameristeel U.S. Inc. v. United States International Trade Commission , 31 Ct. Int'l Trade 1777 ( 2007 )

Slip Op. 07 - 165
UNITED STATES COURT OF INTERNATIONAL TRADE
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GERDAU AMERISTEEL U.S. INC. et al., :
Plaintiffs, :
v. Court No. 01-00955
:
UNITED STATES INTERNATIONAL TRADE :
COMMISSION,
:
Defendant.
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Memorandum & Order
[Defendant’s request for remand granted.]
Dated: November 8, 2007
Kelley Drye Collier Shannon (Paul C. Rosenthal, Kathleen W.
Cannon and R. Alan Luberda) for the plaintiffs.
James M. Lyons, General Counsel, Andrea C. Casson, and Robin
L. Turner, U.S. International Trade Commission, for the defendant.
AQUILINO, Senior Judge: Necessarily recognizing that it
would further exacerbate the “timewarp” of this case, the
“extraordinary procedural posture”, this court’s slip opinion 07-7
herein sub nom. Co-Steel Raritan, Inc. v. U.S. Int’l Trade Comm’n,
page 25, 31 CIT ___ (Jan. 17, 2007), familiarity with which is
presumed, directed defendant’s counsel to attempt to settle a
proposed order of disposition of the remainder of the case not
inconsistent with that slip opinion. Come they now, however, with
Court No. 01-00955 Page 2
a Final Status Report and Request for Remand to the Commission that
the private litigants have engaged in serious discussions
in an attempt to reach a settlement of this proceeding.
However, counsel for the Commission has been informed by
. . . [an] attorney for Plaintiffs[] that[,]
“[u]nfortunately, the parties have not been able to reach
a settlement in this matter, despite a serious, good-
faith effort to do so. There is no reason to continue
settlement discussions.” Counsel for defendant-
intervenor[] Alexandria National Iron and Steel Co. . . .,
an Egyptian respondent, counsel for defendant-
intervenor[] Siderurgica Del Orinoco, C.A. . . ., a
Venezuelan respondent, and counsel for Mittal S.A., a
South African subject producer, have concurred that the
parties have been unable to resolve this matter.
Plaintiffs’ counsel has also informed counsel for the
Commission that “[w]e agree that the Commission should,
at this point, request the Court to remand the case to
the Commission for further proceedings.”
Accordingly, since the private parties have been
unable to reach a settlement of this matter, the
Commission is filing a proposed order of disposition
seeking that this case be remanded to the Commission to
undertake further proceedings that are not inconsistent
with . . . Slip Op. 07-7. In order to address the
Court’s concerns, the Commission may reopen the
evidentiary record for the purpose of seeking information
in the remand proceeding that was not submitted in the
original investigation. The Commission requests that the
Court remand this matter . . . for a period of 120 days
. . .. This . . . will permit adequate time to collect
necessary information, provide parties appropriate time
to comment on such information, and enable the Commission
to conduct a thorough review and prepare a detailed
explanation of its determination such that its path is
reasonably discernible to the Court. . . .
Defendant’s Final Status Report, pp. 2-3 (footnotes omitted).
Court No. 01-00955 Page 3
I
While all parties are reported to consent now to remand,
plaintiffs’ counsel object to any reopening of the Commission
(“ITC”) record. Among other things, they insist that “neither the
statute, the court’s holdings, nor policy considerations support
reopening of the record here”. Plaintiffs’ Response in Opposition,
p. 2.
That statute, the Trade Agreements Act of 1979, as
amended, 19 U.S.C. §1673b(a), provides that
the Commission . . . shall determine, based upon the
information available to it at the time of the
determination, whether there is a reasonable indication
that—
(A) an industry in the United States—
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United
States is materially retarded,
by reason of imports of the subject merchandise and that
imports of the subject merchandise are not negligible.
If the Commission finds that imports of the subject
merchandise are negligible or otherwise makes a negative
determination under this paragraph, the investigation
shall be terminated.
Emphasis added. This is an “obligation imparted by the explicit
language of the statute and the legislative history charging the
Commission to make its preliminary determination ‘based upon the []
information available.’” The Budd Co. v. United States, 1 CIT 67,
Court No. 01-00955 Page 4
75, 507 F. Supp. 997, 1003 (1980). And, the
term “available” as used in the statute must be construed
in accordance with its common meaning. In so doing, it
is clear that all information that is “accessible or may
be obtained,” from whatever its source may be, must be
reasonably sought by the Commission.
Id. It is only in this manner that the ITC can comply with the
intended congressional mandate to conduct a “thorough investi-
gation”. 1 CIT at 75, 507 F.Supp. at 1004.
The court’s slip opinion 07-7, page 23, states that
“there is not a sustainable relationship between the facts that the
ITC finds on remand and the result that it reaches”, perhaps due,
at least in part, to a “paucity of producer data”. Slip Op. 07-7,
p. 21. Hence, without settlement in lieu of more formal
proceedings, remand to the defendant for reconsideration is
required. See, e.g., Fla. Power & Light Co. v. Lorion, 470 U.S.
729, 744 (1985)(if the record does not support the agency action or
if the reviewing court cannot evaluate the challenged agency action
on the basis of the record before it, the proper course is to
remand to the agency for additional investigation or explanation).
While the court of course can construe its own remand
order,
[a]dministrative agencies have power themselves . . . to
control the range of investigation . . . [and] should be
Court No. 01-00955 Page 5
free to fashion their own rules of procedure and to
pursue methods of inquiry capable of permitting them to
discharge their multitudinous duties.
FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940), citing United
States v. Lowden, 308 U.S. 225 (1939), and Interstate Commerce
Comm’n v. Baird, 194 U.S. 25, 44 (1904). Moreover, as noted in
Nippon Steel Corp. v. Int’l Trade Comm’n, 345 F.3d 1379, 1382
(Fed.Cir. 2003), “[w]hether on remand the Commission reopens the
evidentiary record, while clearly within its authority, is of
course solely for the Commission itself to determine.”
The plaintiffs protest that the ITC is required to base
its preliminary determination “on the information available to it
at the time of the determination”. Plaintiffs’ Response in
Opposition, p. 5. See also Co-Steel Raritan, Inc. v. Int’l Trade
Comm’n, 357 F.3d 1294, 1297 (Fed.Cir. 2004)(this court erred when
it directed the Commission to consider circumstances arising after
the preliminary determination). Suffice it to state in this regard
that any enlargement of the record on remand should not entail a
period subsequent to the initial preliminary determination. See 19
U.S.C. §1673b(a); The Budd Co. v. United States, 1 CIT at 79, 507
F.Supp. at 1006-07 (remand of preliminary determination to ITC to
Court No. 01-00955 Page 6
supplement its administrative record with the best information
which “might” have been obtained at the time of the original
investigation).
II
In view of the foregoing, the court is constrained to
grant defendant’s request for remand. In hereby doing so, the
defendant may have until March 10, 2008 to report the results
thereof to the court, whereupon the other parties may file comments
thereon on or before March 24, 2008.
So ordered.
Dated: New York, New York
November 8, 2007
____/s/ Thomas J. Aquilino, Jr.___
Senior Judge