Slip Op. 05 - 43

            UNITED STATES COURT OF INTERNATIONAL TRADE

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GEORGETOWN STEEL COMPANY, LLC, GERDAU
AMERISTEEL CORP., KEYSTONE CONSOLIDATED :
INDUSTRIES, INC., and NORTH STAR STEEL
TEXAS, INC.,                             :

                          Plaintiffs,       :
                  v.
                                            :
UNITED STATES,                                  Court No. 02-00739
                                            :
                          Defendant,
                                            :
                 -and-
                                         :
SAARSTAHL AG, ISPAT HAMBURGER STAHLWERKE
GMBH and ISPAT WALZDRAHT HOCHFELD GMBH, :

               Intervenor-Defendants.    :
- - - - - - - - - - - - - - - - - - - - -x

                          Memorandum & Order
[Plaintiffs' motion for judgment upon the
 agency record denied; action dismissed.]

                                                Decided:   April 1, 2005


     Collier Shannon Scott, PLLC (Paul C. Rosenthal, Kathleen W.
Cannon and R. Alan Luberda) for the plaintiffs.

     Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy
General Counsel, Andrea C. Casson, U.S. International Trade Com-
mission, for the defendant.

     DeKieffer & Horgan (Marc E. Montalbine, Merritt R. Blakeslee
and Wakako O. Takatori) for intervenor-defendant Saarstahl AG.

     Barnes, Richardson & Colburn (Matthew T. McGrath, Gunter von
Conrad and Stephen W. Brophy ) for intervenor-defendants Ispat
Hamburger Stahlwerke GmbH and Ispat Walzdraht Hochfeld GmbH.


          AQUILINO, Senior Judge:   In Co-Steel Raritan, Inc. v.

U.S. Int'l Trade Comm'n, 26 CIT 1131 (2002), this court affirmed

the results of its remand of that part of the (preliminary) deter-
Court No. 02-00739                                          Page 2


mination of the defendant Commission ("ITC") sub nom. Carbon and

Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany,

Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago,

Turkey, Ukraine, and Venezuela, 66 Fed.Reg. 54,539 (Oct. 29, 2001),

which terminated investigations with regard to subject imports from

Egypt, South Africa and Venezuela.   In response to that order, the

Views of the Commission on Remand (Aug. 16, 2002) were to the ef-

fect that

     imports of wire rod from Egypt, South Africa and Vene-
     zuela are not negligible, and that there is a reasonable
     indication that an industry in the United States is
     materially injured by reason of imports of wire rod from
     Egypt, South Africa and Venezuela that are allegedly sold
     in the United States at less than fair value.


26 CIT at 1131.   The commissioners were of the view that an amend-

ment by the International Trade Administration, U.S. Department of

Commerce ("ITA") of the scope of its investigation reduced the

volume of subject imports from Germany to less than the statutory

maximum for negligibility and thereby caused their aggregation with

those from Egypt, South Africa and Venezuela in accordance with 19

U.S.C. §1677(24)(A)(ii).    Whereupon Saarstahl AG and Saarsteel

Inc., interested parties in the underlying administrative proceed-

ings, moved for leave to intervene as parties defendant on the

ground that the

     plaintiffs [we]re . . . attempting to use this litigation
     regarding the Commission's preliminary determination to
     influence [it]s final investigation . . ..       The Com-
     mission's rescission in its remand determination of its
     earlier negligibility determination with respect to
     Egypt, South Africa, and Venezuela raises the possibility
Court No. 02-00739                                            Page 3

     that the seven-percent exception to the negligibility
     statute will be triggered.      If this occurs, German
     imports will be rendered non-negligible, notwithstanding
     that they fall below the three-percent negligibility
     threshold.   Saarstahl respectfully submits that this
     substantial change in its posture in the Commission's
     investigations constitutes good cause for its interven-
     tion out of time.

Id. at 1133.    That untimely motion could not be granted.   See id.

at 1132-34.


            Following the filing of the final judgment in Co-Steel
Raritan, supra, the above-encaptioned action was commenced, with

Saarstahl AG and the Ispat firms obtaining early leave to inter-

vene.    Plaintiffs' complaint 1 contests the ITC's final determina-

tion sub nom. Carbon and Certain Alloy Steel Wire Rod From Brazil,

Canada, Germany, Indonesia, Mexico, Moldova, Trinidad and Tobago,

Ukraine, 67 Fed.Reg. 66,662, 66,663 (Nov. 1, 2002), that imports of

such subject merchandise from Germany were negligible and that the

investigation as to them therefore be terminated. The views of the

Commission majority in support of this determination took note of

the court's affirmance of the remand results in Co-Steel Raritan,
supra, but also of notice(s) of appeal from that final judgment in

declining to aggregate those German imports with subject imports

from Egypt, South Africa and Venezuela.       See Plaintiffs' Non-

confidential Appendix 1, USITC Pub. 3546, p. 16 and n. 88 (Oct.

2002), to wit:

     1
        Among other changes pointed out therein is that Co-Steel
Raritan, Inc. had become plaintiff Gerdau Ameristeel Corp.
Court No. 02-00739                                           Page 4

     . . . As with the antidumping duty investigations, there
     are no other subject countries with negligible levels of
     imports with which to aggregate subject imports from
     Germany in these countervailing duty investigations.

                               *   *   *

          We interpret 19 U.S.C. § 1516a(c)(3) to provide that
     the Commission's original published decision remains
     operative until final court disposition of the matter,
     which has not yet occurred given the filing of an appeal
     with the Federal Circuit Court of Appeals. In accordance
     with its customary practice, the Commission has not iss-
     ued any Federal Register notice with respect to its
     Remand Views pending final judicial disposition of the
     matter. Therefore, the Commission's investigations of
     [Egypt, South Africa and Venezuela] remain terminated.
     As these investigations are terminated they are not sub-
     ject to the aggregate negligibility provisions. . . .


In other words, the linchpin of this ITC final determination of

teutonic negligibility is the ITA's amendment of the scope of the

investigation2, which, to repeat, was also the crux of the Commis-

sion's own prior remand views that were affirmed by the court in

Co-Steel Raritan, supra, yet the defendant decided to disregard

that orderly, timely administrative aggregation and judicial af-

firmance.    Indeed, ITC counsel thereafter joined in support 3 of
the appeals taken on behalf of intervenor-defendants from Egypt and

Venezuela.

            That circumstance apparently induced the three-judge

panel of the Federal Circuit to consider the jurisdiction of both

     2
      See Plaintiffs' Nonconfidential Appendix 1, USITC Pub. 3546,
p. 1 n. 2 (Oct. 2002).
     3
       See Co-Steel Raritan, Inc. v. Int'l Trade Comm'n , 

, 1297 (Fed.Cir. 2004).
Court No. 02-00739                                           Page 5

this and that court.    A judge in dissent concluded that the under-

signed lacked jurisdiction to opine on the Commission's "affirma-

tive" but "preliminary" remand results.4    The panel majority held

that this court had such authority and that its court had appellate

jurisdiction over the resultant final CIT judgment.5   It thus pro-

ceeded to consider the merits thereof and came to conclude that

this court

     erred . . . when it remanded the case to the Commission
     for further consideration in light of Commerce's modifi-
     cation of the scope of the investigation. . ..6

Whereas the judge in dissent would have vacated this court's final

judgment and dismissed the appeals therefrom for lack of jurisdic-

tion7, the majority remanded for further proceedings to

     consider the contention in Co-Steel's original motion for
     judgment on the administrative record that it did not
     address in Co-Steel I. That is the contention that the
     Commission erred in concluding in the preliminary deter-
     mination that there was no reasonable indication that
     wire rod imports from Egypt, South Africa, and Venezuela
     would imminently exceed statutory negligibility levels,
     whether considered individually or collectively.8

That matter is sub judice before this court.



     4
         See id. at 1317-19.
     5
         See id. at 1303-09.
     6
         Id. at 1317.
     7
         See id. at 1319.
     8
         Id. at 1317.
Court No. 02-00739                                           Page 6

                                  I

          Also to be decided of course herein is what remains of

this matter in light of the foregoing background.       To date, no

party has intimated that the court might not be possessed of

subject-matter jurisdiction pursuant to 28 U.S.C. §§     1581(c),

2631(c), 2636(c).    Presuming that it is leads to the question of

whether or not plaintiffs' complaint states a claim upon which

affirmative relief can be granted.    Alas, the court concludes that

it does not.


          The sum and substance of plaintiffs' motion for judgment

upon the agency record is:


     B.   The Commission's Determination that Imports of
          CASWR from Germany Could Not Be Aggregated
          with Imports of CASWR from Egypt, South Africa
          and Venezuela to Determine Negligibility
          Because Those Investigations Had Been Termi-
          nated Was Unlawful[.]

                              *   *   *

     C.   The Statutory Negligibility Provision Does Not
          Permit Refusal to Aggregate Dumped With Subsi-
          dized Imports in Assessing Aggregate Import
          Levels[.]

     D.   In Assessing Negligibility, the Commission Is
          Not Precluded from Aggregating Imports from
          Germany with Imports from Egypt, South Africa
          and Venezuela Merely Because Final Commerce
          and Commission Decisions Have Not Yet Been
          Issued as to Such Imports[.9]


     9
       Plaintiffs' Brief, page i.     The acronym "CASWR" refers to
the subject merchandise.
Court No. 02-00739                                             Page 7


In fairness to plaintiffs' counsel, it should be pointed out that

this motion was filed before the decision of the court of appeals

-- and after this court had denied a motion by the defendant to

stay this action pending that decision.    See Georgetown Steel Co.

v. United States, 27 CIT          ,     , 

, 1348

(2003)("parties to judgments nisi prius are not automatically at

liberty to disregard them, in particular when they do not seek

appellate relief in their own right"). It must also be recognized,

however, that Co-Steel Raritan, supra, and this action both emanate
from the same antidumping and countervailing-duty administrative

investigations and have engendered notable "hypothesizing" by the

parties, including intervenor-defendant Saarstahl AG.     See, e.g.,

id., 27 CIT at       , 259 F.Supp.2d at 1347-48.   Indeed, it was the

petitioners cum plaintiffs that precipitated those investigations

and which decided after their commencement to petition the ITA for

an amendment of their scope.      And the potential impact of that

tactic was well-understood by their counsel, e.g.:

          This amendment to the scope of the cases has direct
     relevance to the Commission's negligibility analysis. As
     set forth in the domestic industry's submission, Germany
     was believed to be a significant producer of the excluded
     tire cord and tire bead products. [] Excluding these
     products from the scope of the cases, therefore, would
     result in a decline in Germany's subject import share
     over the 12-month period reviewed. Based on the domestic
     industry's best information, as set forth on the record
     of the Commission's case, the scope modification would
     result in a reduction in imports from Germany to 2.9
     percent in the August 2000-July 2001 period.       . . .
     Aggregation of these German imports with imports from
Court No. 02-00739                                         Page 8

     Egypt, South Africa, and Venezuela in the August 2000-
     July 2001 period would result in a 9.27 percent import
     share, well above the seven percent threshold.10


           Suffice it to state now that this maneuver has had its

day in two courts and also to confirm that this one does not

interpret the mandate of the Federal Circuit in the first case as

providing a basis for relief for the plaintiffs herein from the

predicament, the "extraordinary procedural posture"11, that they

instigated.   Ergo, judgment should be entered, denying their

motion12 and dismissing this contingent action.
           So ordered.

Decided:   New York, New York
           April 1, 2005

                                         Thomas J. Aquilino, Jr.
                                            Senior Judge




     10
        Plaintiffs' Brief in Support of Rule 56.2 Motion for
Judgment Upon the Agency Record [in Co-Steel Raritan, Inc. v.
United States, Court No. 01-00955], pp. 30-31 (Dec. 21,
2001)(citations omitted).
     11
        Plaintiffs' Nonconfidential Appendix 1, USITC Pub. 3546,
pp. 47, 49 (Oct. 2002)(Additional and Dissenting Views of Commis-
sioner Lynn M. Bragg).
     12
        Given the seemingly-intractable lie of this matter, the
parties' motions for oral argument can be, and they hereby are,
denied.