Slip Op. 02-36

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Judge Judith M. Barzilay
___________________________________		:
		:
THE COMMITTEE OF DOMESTIC		:
STEEL WIRE ROPE AND SPECIALTY		:
CABLE MANUFACTURERS,		:
		:
	Plaintiff,	:
		:
	v.	:
THE UNITED STATES,		:	Court No. 01-00209
	Defendant,	:	Public Version
		:
	and	:
		:
COOPER TOOLS, INC., DRAGON		:
TRADING INC., and THE INDUSCO		:
GROUP,		:
		:
	and	:
		:
USHA MARTIN INDUSTRIES, LTD		:
and USHA MARTIN AMERICAS, INC.,		:
		:
	and	:
		:
NANTONG WIRE ROPE CO. and		:
NANTONG ZHONGDE STEEL WIRE ROPE		:
		:
	Defendant-Intervenors.	:
___________________________________		:
[Plaintiff’s Motion for Judgment Upon the Agency Record denied.]			Decided: April 5, 2002

Harris Ellsworth and Levin, (Herbert E. Harris II), Jeffrey S. Levin, for Plaintiff.

(Lyn M. Schlitt), General Counsel, (James M. Lyons), Deputy General Counsel, (Michael Diehl), Office of the General Counsel, U.S. International Trade Commission, for Defendant.

Grunfeld, Desiderio, Lebowitz, Silverman, & Klestadt LLP, (Bruce M. Mitchell), Jeffrey S. Grimson, for Defendant-Intervenors Cooper Tools, Inc., Dragon Trading Inc., and the Indusco Group.

Wilkie, Farr & Gallaher, Christoper A. Dunn, for Defendant-Intervenors USHA Martin Industries, Ltd and USHA Martin Americas, Inc.

Manatt, Phelps & Phillips, LLP, (Jeffrey S. Neely), for Defendant-Intervenors Nantong Wire Rope Company and Zhongde Steel Wire Rope.

OPINION

BARZILAY, JUDGE:

     Plaintiff in this case is a committee of domestic steel wire rope producers challenging the United States International Trade Commission's ("ITC" or "Commission") final negative determination in Steel Wire Rope from China and India, 66 Fed. Reg. 18,509 (April 9, 2001), in which the Commission ascertained that steel wire rope imported from China and India caused neither material injury nor threat of material injury to the domestic industry. The Commission’s reasoning was set forth in Steel Wire Rope From China and India,(“Final Determination”), Inv. Nos. 731-TA-868-869, (Final), USITC Pub. 3406 (March 2001). Before the court is Plaintiff’s USCIT R. 56.2 Motion for Judgment Upon the Agency Record. Plaintiff brings this action pursuant to 19 U.S.C. § 1516a(a)(2)(B)(ii) (1994); the ITC opposes Plaintiff’s motion. Defendant-Intervenors Cooper Tools, Inc., Dragon Trading, Inc., and the Indusco Group (“Cooper Tools”) and Nantong Wire Rope Company and Nantong Zhongde Steel Wire Rope (“Nangtong”) also filed briefs opposing Plaintiff’s motion. The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994).¹ For the reasons set out in the following opinion, the court denies Plaintiff’s Motion for Judgment Upon the Agency Record.

II. BACKGROUND

     On March 1, 2000, Plaintiff filed with the U.S. Department of Commerce ("Commerce" or "ITA") and the International Trade Commission a petition alleging that imports of steel wire rope from India, Malaysia, the People’s Republic of China (“China”), and Thailand were being, or were likely to be sold, in the United States at less than fair value (“LTFV”) within the meaning of section 731 of the Tariff Act of 1930 and that such imports were the cause of material injury to an industry in the United States. See Committee of Domestic Steel Wire Rope and Specialty Cable Manufacturers Mem. in Supp. of Its Rule 56.2 Mot. for J. on the Agency R. ("Pl.’s Br.") at 2-3. The ITC initiated a preliminary investigation on March 1, 2000, in response to the petition by instituting antidumping duty investigations Nos. 731-TA-868-871. On March 17, 2000, Commerce initiated antidumping duty investigations to determine whether imports of steel wire rope from China, India, Malaysia and Thailand were being sold, or were likely to be sold, in the United States at LTFV.² Initiation of Antidumping Duty Investigations: Steel Wire Rope From India, Malaysia, the People’s Republic of China, and Thailand, 65 Fed. Reg. 16,173 (March 27, 2000). The Commission issued a preliminary injury determination on April 17, 2000, finding by a 6 to 0 vote that steel wire imports from China, India and Malaysia materially injured, or threatened to materially injure, the U.S. steel wire rope industry. Steel Wire Rope from China, India, Malaysia and Thailand, 65 Fed. Reg. 24,505 (April 26, 2000).

     On July 7, 2000, the Committee requested that Commerce postpone the issuance of its preliminary determination as to whether the steel wire rope was sold or likely to be sold in the United States at LTFV. On July 13, 2000, Commerce granted the request and postponed the issuance of its preliminary determination until September 25, 2000. See Notice of Postponement of Preliminary Antidumping Duty Determinations: Steel Wire Rope from India, Malaysia, and the People’s Republic of China, 65 Fed. Reg. 45,037 (July 20, 2000). On September 25, 2000, Commerce issued an affirmative preliminary determination that steel wire rope from India and China were being sold in the United States for LTFV; however, Commerce issued a negative determination regarding steel wire imports from Malaysia. See Notice of Preliminary Determination of Sales at Less Than Fair Value: Steel Wire Rope From India and the People’s Republic of China; Notice of Preliminary Determination of Sales at Not Less Than Fair Value: Steel Wire Rope From Malaysia, 65 Fed. Reg. 58,736 (October 2, 2000). In accordance with 19 U.S.C. § 1673d(b), Commerce notified the Commission of its preliminary determinations and the Commission began the final phase of its investigations. See Steel Wire Rope From China, India, and Malaysia, 65 Fed. Reg. 67,402 (November 9, 2000).

     In its final determination, Commerce found that steel wire rope from India and China was being sold, or was likely to be sold, in the United States at less than fair market value and that steel wire rope from Malaysia was not being sold in the United States at less than fair value. See Notice of Final Determination of Sales at Less Than Fair Value: Steel Wire Rope From India and the People’s Republic of China; Notice of Final Determination of Sales at Not Less Than Fair Value: Steel Wire Rope From Malaysia, (“Commerce’s Final Determination”), 66 Fed. Reg. 12,759 (February 28, 2001). Additionally, Commerce found that steel wire rope produced by one of the Chinese respondents, Fasten, was not being sold in the United States at LTFV. Commerce determined that the final estimated dumping margins on the subject imports from China ranged from 42.23% to 58% and the final estimated dumping margin for subject imports from India was 38.63%. Id. at 12,761.

     On March 21, 2001, the Commission determined by a vote of 6 to 0 that an industry in the United States was neither materially injured nor threatened with material injury by reason of imports of steel wire rope and transmitted its negative determination to Commerce. The Commission determined that a “reasonable overlap” of competition existed between the subject imports and the domestic like product and cumulated the subject imports from India and China. However, in its injury analysis, the Commission determined that the competition between the subject imports and the domestic like product was “attenuated” and therefore, did not materially injure or threaten to materially injure an industry in the United States.

     The Committee argues that the Commission: (1) applied varying, inconsistent and irreconcilable characterizations regarding the degree of competition which existed in the U.S. steel wire rope market between the subject imports and the domestic like product, (2) improperly concluded that “attenuated” competition existed between subject imports and the domestic like product, and (3) failed to consider the magnitude of the dumping margins established by Commerce in its material injury and threat of material injury analysis. See Pl.’s Br. at 6-8. Specifically, the Committee asserts that the Commission was inconsistent in determining that a “reasonable overlap” of competition existed for cumulation purposes, and at the same time finding that “attenuated” competition existed between the domestic product and subject imports, and therefore, concluding that the subject imports did not materially injure or threaten to materially injure the domestic industry. The Committee also asserts that the Commission’s finding of “attenuated” competition between the subject imports and the domestic like product was flawed because it was not supported by substantial evidence. The Committee claims that “[t]here is little or no evidence on the record to indicate that Indian imports carry the same qualitative shortcoming claimed by the exporters and importers of steel wire rope from China” and “the Commission’s analysis did not account for substantial evidence on the administrative record that establishes subject imports from both China and India are in direct competition in the U.S. marketplace.” Pl.’s Br. at 7. Additionally, the Committee argues that the Commission failed to take into account the final estimated dumping margins that were determined by Commerce.

Part 2

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1. 28 U.S.C. § 1581(c) provides: "The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930."

2. Section 732(b)(1) of the Tariff Act of 1930, codified at 19 U.S.C. § 1673a(b)(1) (1994), provides:
     An antidumping proceeding shall be initiated whenever an interested party described in subparagraph (C), (D), (E), (F), or (G) of section 1677(9) of this title files a petition with the administering authority, on behalf of an industry, which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations. The petition may be amended at such time, and upon such conditions, as the administering authority and the Commission may permit.