                          Slip Op. 07 - 7

            UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - x
CO-STEEL RARITAN, INC. et al.,        :

                          Plaintiffs, :
                 v.                         Court No. 01-00955
                                       :
UNITED STATES INTERNATIONAL TRADE
COMMISSION,                            :

                          Defendant. :
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                          Opinion & Order

[Result of remand to defendant
 not in accordance with the law.]

                                            Decided: January 17, 2007


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

     James M. Lyons, General Counsel, and Karen Veninga Driscoll,
U.S. International Trade Commission, for the defendant.

     White & Case LLP (David P. Houlihan and Frank H. Morgan) for
the intervenor-defendants.


          AQUILINO, Senior Judge:    The Trade Agreements Act of

1979, as amended, 19 U.S.C. §1677(24)(A)(i), provides that imports

of merchandise corresponding to a U.S. domestic like product are

“negligible” if such imports account for less than three percent of

the volume of all such merchandise imported into the United States

during a defined 12-month period.    Exceptions to this statutory

rule are as follows:
Court No. 01-00955                                                             Page 2


                    (ii) . . . Imports that would otherwise be
                    negligible under clause (i) shall not be
                    negligible if the aggregate volume of imports
                    of   the  merchandise   from  all   countries
                    described in clause (i) with respect to which
                    investigations were initiated on the same day
                    exceeds 7 percent of the volume of all such
                    merchandise imported into the United States
                    during the applicable 12-month period.

                                     *     *    *

                    (iv)   Negligibility   in   threat   analysis.
                    Notwithstanding clauses (i) and (ii), the
                    [U.S. International Trade] Commission [“ITC”]
                    shall not treat imports as negligible if it
                    determines that there is a potential that
                    imports from a country described in clause (i)
                    will imminently account for more than 3
                    percent of the volume of all such merchandise
                    imported into the United States, or that the
                    aggregate   volumes   of  imports   from   all
                    countries described in clause (ii) will
                    imminently exceed 7 percent of the volume of
                    all such merchandise imported into the United
                    States.   The Commission shall consider such
                    imports only for purposes of determining
                    threat of material injury.

19   U.S.C.    §1677(24)(A).       The    act       further     provides    that,   in

computing import volumes for purposes of foregoing subparagraph

(A),   the    ITC   may   make   reasonable         estimates    on   the   basis   of

available statistics.        19 U.S.C. §1677(24)(C).


                                          I

              In    reviewing    agency       analyses    under       the   foregoing

provisions, a court shall hold unlawful any determination, finding,

or conclusion found to be arbitrary, capricious, an abuse of
Court No. 01-00955                                           Page 3


discretion, or otherwise not in accordance with law.      19 U.S.C.

§1516a(b)(1)(A).     See, e.g., Texas Crushed Stone Co. v. United

States, 35 F.3d 1535 (Fed.Cir. 1994).   In exercising this statutory

standard of review, the courts have sustained negative preliminary

determinations of the Commission

     only when (1) the record as a whole contains clear and
     convincing evidence that there is no material injury or
     threat of such injury; and (2) no likelihood exists that
     contrary evidence will arise in a final investigation.

American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.
1986).   And this approach has necessarily been followed at bar viz.
Co-Steel Raritan, Inc. v. U.S. Int’l Trade Comm’n, 26 CIT 639, 648-
49, 244 F.Supp.2d 1349, 1358 (2002); Co-Steel Raritan, Inc. v.
Int’l Trade Comm’n, 357 F.3d 1294, 1310-11 (Fed.Cir. 2004), citing
the Uruguay Round Agreements Act Statement of Administrative Action
(“URAA-SAA”), H.R. Doc. No. 103-316, vol. 1 (1994).   That statement
includes:

          In threat of material injury analyses, the
     Commission will examine “actual” as well as “potential”
     import volumes. Import volumes at the conclusion of the
     12-month period examined for purposes of considering
     negligibility may be below the negligibility threshold,
     but increasing at a rate that indicates they are likely
     to imminently exceed that threshold during the period the
     Commission examines in conducting its threat analysis.
     In such circumstances, the [ITC] will not make a material
     injury determination concerning such imports because they
     are currently negligible, but it will consider the
     imports for purposes of a threat determination.

URAA-SAA, p. 856.
Court No. 01-00955                                            Page 4


                                  A

            As reported in this court’s subsequent slip opinion 05-63

filed herein, 29 CIT ___ (June 7, 2005), familiarity with which is

presumed, the decision of two members of the three-judge panel of

the Court of Appeals for the Federal Circuit (“CAFC”) in Co-Steel

Raritan, Inc. v. Int’l Trade Comm’n, supra, was read to require

     further proceedings . . .[to] consider the contention in
     [plaintiffs’] original motion for judgment on the
     administrative record that it did not address in Co-Steel
     I . . . [,] that the Commission erred in concluding in
     the preliminary determination 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.


357 F.3d at 1317.    When the parties hereto did not disagree1, this

court sought to comply with this mandate to consider the “record as

a whole”, “the record at the time the Commission render[ed] its

preliminary determination”, 357 F.3d at 1314, and the parties’

arguments based thereon.    Again as reported, the court strained

     to discern a supposition, let alone clear and convincing
     evidence, of no potential that imports from South Africa
     will imminently account for more than three percent of
     all subject merchandise imported into the United States.2


Whereupon the court was constrained to grant plaintiffs’ motion for

judgment on the agency record




     1
         See Slip Op. 05-63, p. 2, 29 CIT at ___.
     2
         Id. at 12-13 (footnote omitted).
Court No. 01-00955                                            Page 5


     to the extent of remand to the defendant to (a)
     reconsider its preliminary determination that wire rod
     imports from South Africa will not imminently exceed
     three percent of the volume of all such merchandise
     imported into the United States and (b) pinpoint the
     clear and convincing evidence on the record, if there is
     any, that there is little potential that the imports from
     South Africa and those from Egypt and Venezuela,
     collectively, will not imminently exceed seven percent.3


                                  B

            The defendant has sought to comply with this remand,

finding subject imports from South Africa, individually, and also

aggregated with those from Egypt and Venezuela, to be negligible,

so that its antidumping-duty investigations of such imports from

those countries “are terminated by operation of law.”    Views of the
Commission, p. 36.


                                 (1)

            Slip opinion 05-63 pointed out that, in sustaining the

defendant’s affirmative threat-of-material-injury determination,

the court in Asociacion de Prod. de Salmon y Trucha de Chile AG v.
U.S. Int’l Trade Comm’n, 26 CIT 29, 39, 180 F.Supp.2d 1360, 1371

(2002), concluded that the foreign producers’ ability to increase

shipments to this country “within one to two years” qualified as

imminent.    The court reasoned that “[n]o bright-line test exists to

determine when injury is imminent.”




     3
         Id. at 15.
Court No. 01-00955                                          Page 6


     . . . The term does not necessarily mean, as the Asocia-
     ción argues, immediate, as the statute does not establish
     any specific time limit governing when a potential action
     can be characterized as imminent. . . .

26 CIT at 39, 180 F.Supp.2d at 1372.    The defendant now responds

herein:

          The production process and market for steel wire rod
     are quite different than those for salmon. . . . In
     contrast to the several year production cycle for salmon,
     wire rod can be quickly produced and delivered to the
     U.S. market with short lead times. . . . The wire rod
     industry is thus far less constrained than the salmon
     industry in its ability to increase production and
     shipments quickly. . . . In light of the[se]
     circumstances, we find “imminent” encompasses a shorter
     time frame in this case than in Salmon.

Views of the Commission, pp. 16-18.


          The Commission examined actual imports of South African

wire rod to again find that

     the ratio of subject imports from South Africa to total
     imports never exceeded 3.0 percent over the period of
     investigation. It was 1.8 percent in 1998, 2.0 percent
     in 1999, 2.4 percent in 2000, 2.0 percent in interim
     2000, and 2.6 percent in interim 2001.


Id. at 20-21 (footnote omitted).   It compared total import volumes

during calendar year 2000 and the statutory negligibility period

and finds that they remained “essentially level”, id. at 21, and

further notes that overall apparent U.S. wire-rod consumption,

which increased from 1998 to 2000, dropped [] percent between

interim 2000 and interim 2001.     See id. at 22.     The ITC thus
Court No. 01-00955                                                   Page 7


concluded that those data indicated a “decreased demand for wire

rod”.    Id.


             Again comparing data from calendar year 2000 and the

statutory negligibility period, the Commission determines that South

African subject imports increased “by only 0.14 percentage points, from

2.44 percent to 2.58 percent” during that time.     Id. at 21.     According

to it, that percentage supports a finding that the “rate of increase

for subject imports from South Africa slowed considerably after

calendar year 2000”.     Id.   The ITC further determines that “decreased

demand for wire rod may have been a factor in th[is] decreased rate of

increase for subject imports from South Africa.”      Id. at 22.


             The Commission points to increased volumes of subject imports

from Brazil, Canada, Mexico, and Trinidad and Tobago from 1998 to July

2001, along with those countries’ expanding and “increasingly dominant

share of total import volumes”, as

        ma[king] the [U.S. wire-rod] market more competitive,
        thereby diminishing the possibility that the volume of
        subject imports from South Africa would increase
        materially in the imminent future . . . render[ing]
        minimal any effect an increase in subject imports from
        South Africa would have on its share of total imports.

Id. at 25.     The ITC finds the rate of increase of South African imports

“much lower” than the rate of increase of imports from those countries.

Id. n. 94.


             Turning to potential imports, the Commission cites decreased

U.S. consumption to support a trend analysis foretelling that this
Court No. 01-00955                                                   Page 8


     decrease in consumption would tend to discourage
     importers or exporters of wire rod from South Africa from
     attempting to increase . . . shipments to the U.S.
     market. . . . [I]f imports were to increase, that
     increase would be far more likely to consist of subject
     imports from Brazil, Canada, Mexico and Trinidad and
     Tobago, rather than subject imports from South Africa.

Id. at 28.    The ITC analyzes the export potentials of the competing

countries    and   finds   that    certain   subsidies,   high   production

capacities, and business strategies vis-à-vis the U.S. market make

them more likely than South Africa to increase their exports should

total U.S. imports of wire-rod increase in the future.           See id. at
28-31.


             The Commission examined questionnaire responses from two

U.S. importers of South African wire rod and estimated that they

accounted for almost all U.S. imports of subject merchandise from

that country during 2000.         See id. at 26.   One of them reported an

anticipated delivery of subject imports in August 2001, which the ITC

finds “d[id] not reflect an intent on the part of [that importer] to

materially increase its subject imports from South Africa into the

U.S. market in the imminent future.”         Id. at 26-27.

             The Commission also relies on data provided by the lone

responding South African producer, Scaw Metals, Limited, which “did

not export to the United States during the period of investigation

and stated that it d[id] not plan to do so in the future”, id. at 27,

to conclude that
Court No. 01-00955                                                 Page 9


     neither the largest responding importer of subject
     imports, nor the only exporter in South Africa that
     responded to our questionnaire, gave any indication that
     they were intending to increase their imports or their
     exports, respectively, to the U.S. market in the imminent
     future.


Id. at 28.    In light of the above actual and potential import trend

analyses, the ITC

     conclude[s] that there is no potential that subject
     imports from South Africa will exceed the applicable
     individual statutory negligibility threshold of three
     percent of total wire rod imports in the imminent future,
     and that they will remain at approximately 2.6 percent of
     total imports in the imminent future.


Id. at 32.

                                   (2)

             The Commission finds that aggregate imports from Egypt,

South Africa, and Venezuela comprised 6.1 percent of subject

imports during the applicable negligibility period, “well below the

statutory [7 percent] threshold.”          Id.    In reaching this con-

clusion, it confirms its earlier findings of the share of total

imports for Egypt and Venezuela individually, which were 1.4

percent and 2.1 percent, respectively.       By adding these figures to

its previously-determined 2.6 percent for South Africa, the ITC

concludes that “subject imports from Egypt, South Africa and

Venezuela    would,   in   aggregate,   account   for   approximately   6.1

percent of total imports in the immediate future.”          Id. at 35.
Court No. 01-00955                                                   Page 10


          The Commission identifies a trend in support of this

conclusion, citing declining aggregate imports from those three

countries that totaled 7.5 percent in 1999, 6.4 percent in 2000,

5.6 percent in interim 2000, and 5.1 percent in interim 2001.              See

id. at 32-33.       The determination regarding aggregate imminent non-

negligibility       is   further   based   upon   those   same   factors   it

considered     in    its   assessment      of   individual   South   African

negligibility, namely, its conclusion that the U.S. market has

become more competitive, that other foreign producers have a

“variety of incentives to increase their presence in the U.S.

market”, and that, should total imports of wire rod increase, “it

is much more likely for that increase to come from countries other

than Egypt, South Africa and Venezuela”.           Id. at 35-36.

                                      II

             The plaintiffs contend that the defendant has erred in

concluding that there is no potential that the ratio of South

African wire-rod exports to the U.S. would imminently exceed the

three-percent negligibility threshold:


          The Commission’s remand determination . . . repeats
     the same errors made in its original decision . . . [and]
     relies on the same, faulty reasoning cited in its prior
     decision to support its conclusion that imports from
     South Africa will not imminently exceed the three percent
     negligibility threshold.
Court No. 01-00955                                                 Page 11


Plaintiffs’ Comments [hereinafter “Brief”], p. 2.       They add that

     [a]dditional information cited by the Commission in its
     remand determination . . . as reported by the major
     importer of product from South Africa . . . demonstrates
     that imports from South Africa not only will exceed the
     three percent threshold, but will do so in just one month
     beyond the period the Commission examined. . . . [That
     entity’s] affirmative statement that it will import over
     17,000 tons of wire rod in the month of August 2001 alone
     is directly inconsistent with the Commission’s conclusion
     that “the largest responding importer” did not give “any
     indication that they were intending to increase[] their
     imports . . . to the U.S. in the imminent future.”


Id. at 3-4 (emphasis in original; confidential bracketing omitted),
quoting Views of the Commission, p. 28.       The plaintiffs postulate

that, given that shipment, South African subject imports would

exceed three percent during the period of September 2000 through

August 2001.      See id. at 3-6.


            Focusing on that shipment, the plaintiffs posit that “the

Commission’s . . . definition of ‘imminent[]’ . . . is irrelevant”.

Id. at 6.    They claim that

     [d]efinitive evidence [of] . . . substantial volume of
     imports from South Africa in the very next month beyond
     that for which data were collected that would cause
     imports from South Africa to surpass the three percent
     threshold is “imminent” under any definition of that
     term.

Id. at 6-7 (emphasis in original; confidential bracketing omitted).


            The    plaintiffs   also   find   fault   with   the    ITC’s

interpretation of record evidence.      They contend that its
Court No. 01-00955                                                 Page 12


      theories as to why there would be no increase in future
      imports from South Africa are . . . without support . . .
      [and its] theories as to how imports from South Africa
      would likely react to specific market conditions fly
      directly in the face of record evidence to the contrary.


Id. at 7.   Specifically, they point to an increase in South African

subject imports between interim 2000 and 2001, during which period

such imports increased 31.5 percent despite an overall 16.6 percent

drop in apparent U.S. consumption of wire rod.         See id. at 8.   They

maintain that

      there is no support for the Commission’s conclusion that
      a decline in demand would cause future imports from South
      Africa to decline.

Id.

            The   plaintiffs   similarly   challenge    the   Commission’s

conclusion that increased market competitiveness would make it

unlikely that South Africa would increase its share of subject

imports by asserting that it

      was one of the countries increasing its imports steadily
      and consistently during [the investigative period of 1998
      through interim 2001], even as imports from other
      countries increased. . . . Contrary to the Commission’s
      theory, despite the increased competition from other
      imports that occurred over this period, the volume of
      imports from South Africa did not diminish but continued
      to increase in every year from prior levels.


Id. at 8-9 (citations omitted).     Whereupon the plaintiffs conclude

that the
Court No. 01-00955                                           Page 13


      constant increases in imports from South Africa in this
      highly-competitive market environment indicate that,
      irrespective of the competition from other imports,
      imports from South Africa will increase in volume as
      well. . . . [T]he increased competition and sales of
      imports from other subject countries were not coming at
      the expense of imports from South Africa but at the
      expense of the domestic industry, whose sales and market
      share fell rapidly while the market share of imports from
      South Africa and other subject countries increased.


Id. at 9, citing Carbon and Certain Alloy Steel Wire Rod From
Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South

Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela, USITC

Pub. 3456, p. IV-11, Table IV-5 (Oct. 2001).


           Additionally, the plaintiffs argue that the contested

determination is flawed due to the Commission’s

      complete failure to acknowledge or address the refusal of
      the major exporter of wire rod from South Africa, Iscor,
      to provide any response to its questionnaire[] and its
      reliance instead on the largely irrelevant response of a
      company that has never exported wire rod to the United
      States.


Id.   Because that company, Scaw Metals, which was the only South

African wire-rod producer that responded to the ITC’s questionnaires,

      never exported wire rod to the United States . . . the
      fact that it did not plan to increase exports to the
      United States is not surprising or even relevant to the
      Commission’s analysis. . . . The petition that was filed
      in this case by the domestic industry identified Iscor as
      the major exporter of wire rod and alleged dumping by
      Iscor, not Scaw Metals. . . . That Scaw Metals . . . had
      no plans to export to the U.S. in the future provides no
      evidence, one way or the other, for concluding whether
Court No. 01-00955                                                 Page 14


     Iscor would increase exports of wire rod from South
     Africa in the future.


Id. at 10-11 (citations omitted; emphasis in original).          To remedy

this perceived defect, the plaintiffs suggest that the Commission

     should have either made adverse inferences against Iscor
     for non-compliance, as contemplated by 19 U.S.C. §
     1677e(b), or postponed until the final proceeding a
     decision on South Africa so that it could further attempt
     to obtain a response from Iscor at that time, consistent
     with the standard in American Lamb[.]

Id. (citation omitted).      They speculate that,

     [i]f Iscor had responded, it might have reported that
     increased exports to the United States were planned for
     the imminent future[,] . . . that it was expanding
     capacity or had excess capacity that would lead to
     increased exports, or that it planned to divert exports
     from its home or third country markets to the United
     States. . . . Instead, this void in the record inured to
     Iscor’s benefit . . . [and] has rewarded Iscor’s
     recalcitrance by prematurely terminating the case against
     imports from South Africa[.]

Id. at 12-14 (footnote omitted).


          The   plaintiffs    lastly   take   exception   to    the    ITC’s

determination that the aggregate Egyptian, South African, and

Venezuelan subject-import ratio would not imminently exceed seven

percent, and they continue to object to the ITC’s determination

that subject Venezuelan imports will not significantly increase in

the imminent future.      They claim that data provided by producer

Sidor   indicate   that   Venezuelan    subject   imports      would    have
Court No. 01-00955                                         Page 15


imminently increased during the second half of 20014, thus pushing

aggregate imports over the negligibility threshold.


                                A

          In considering “imminent”, the defendant has identified

several factors that distinguish wire-rod production from that of

salmon, namely, the steel industry’s ability to increase capacity

within a short period of time, its ability to quickly produce and

deliver product to the U.S. market, and its ability to shift the

use of production equipment from other steel products to wire rod.

See Views of the Commission, pp. 16-18.      The ITC noted that,

because wire-rod sales are

     made generally either on the spot market or through
     short-term three month contracts . . . [, t]he wire rod
     industry is thus far less constrained than the salmon
     industry in its ability to increase production and
     shipments quickly.

Id. at 17 (footnote omitted).




     4
       The court declines reconsideration of the issue of imminent
Venezuelan non-negligibility, which was decided by slip opinion 05-
63. The ITC’s confirmation on remand of its earlier Venezuelan
import ratio determination, and its subsequent reliance thereon in
factoring its forecast of aggregate imports, does not open the door
to reargument as to whether Venezuelan imports are likely to
increase significantly in the imminent future. Rather, the issue
of whether the aggregate import ratio will imminently pass the
seven-percent threshold remains at issue only to the extent that
the Commission’s non-negligibility remand determination regarding
South Africa might affect collective imminent non-negligibility.
Court No. 01-00955                                                   Page 16


              Given its consideration of the facts and circumstances of

production of wire rod, the nature of the industry, and the market

therefor, the Commission’s conclusion that “imminent” in the case

at bar “encompasses a shorter time frame” than the one-to-two-year

period   in     Asociacion   de   Prod.   de   Salmon   y   Trucha   is   not

unreasonable, arbitrary and capricious, or an abuse of discretion.


              The plaintiffs contend, however, that the South African

import ratio would exceed three percent even within such shorter

period, viz. by the end of September 2001.         Relying on information

contained in the ITC’s remand papers, plaintiffs’ approach would

shift the 12-month period contemplated by 19 U.S.C. §1677(24)(A)(i)

one month ahead during which a significant shipment of South

African wire-rod was predicted.       Plaintiffs’ arithmetic would then

divide the expected higher South African import volume by that of

total U.S. wire-rod imports tallied during the statutory period,

which would equal some 3.1 percent of total U.S. imports.                 See
Plaintiffs’ Brief, p. 5.


              While admitting, as they must, that their denominator is

a “proxy” due to the lack of a “precise[] . . . amount [of] total

import tonnage . . . for the September 2000 through August 2001

period”,5 the plaintiffs posit that their approach




     5
         Plaintiffs’ Brief, p. 5.
Court No. 01-00955                                                       Page 17

     [a]t the very least . . . provides a strong indication of
     a likely imminent increase in imports from South Africa
     to beyond negligible levels, if not definitive proof of
     this fact.


Id. (confidential bracketing omitted).


           The    court    concurs    that   the    impending   August     2001

importation of South African wire-rod necessarily falls within the

shorter   “imminent”      period    that   the   ITC   sees   fit   to    apply

preliminarily.     Its remand papers, however, fail to consider what

impact that shipment would have upon the exceeding-three-percent

dispositive      issue.     In     fact,   rather   than   considering      the

prospective quantitative impact thereof, the Commission compared it

with historic company imports of South African product in 2000 and

2001, which is hardly the proper focus when attempting to gauge the

imminent future import ratios contemplated by the statute.                  See
Views of the Commission, p. 26.


           The ITC’s reliance on that comparative data, along with

its statement that the “modest” August 2001 reported shipment did

not reflect an “intent on the part of [that importer] to material-

ly increase its subject imports”, falls short on another level, to

wit, its failure to account for the fact that that importer would

only “have known of any additional deliveries in the remainder of

2001 when it submitted its questionnaire response in mid-September
Court No. 01-00955                                            Page 18


2001”6, i.e., the last few months of 2001.   That failure leaves open

the potential of shipments that would fall within the Commission’s
                          7
amorphous imminence period , thus rendering the company-specific
analysis and conclusions derived therefrom inherently tenuous.


            A similar gap exists in the evidence on the agency record

concerning South African wire-rod production and export potential due

to Iscor’s failure to respond to the ITC questionnaire.        In the

absence of data from Iscor, which plaintiffs’ petition “identified . .

. as the major exporter of [South African] wire rod and alleged

dumping”8, the Commission considered data supplied by Scaw Metals,

which accounted for [] percent of South African wire-rod production

yet reported no exports to the United States during the period under

investigation and projected none in the future.


            Despite the absence of a response by South Africa’s

largest wire-rod producer, plaintiffs’ contention that the ITC




     6
       Views of the Commission, pp. 26-27 (confidential bracketing
omitted).
     7
       Although the ITC observed that the company’s limited ability
to predict future shipments of South African wire “comports with
[its] conclusions regarding the appropriate ‘immiment’ period for
this case”, ibid. n. 102, the observation does nothing to its
chosen imminence period in the matter at bar, that is, less time
than the one-to-two-year period considered imminent in Asociacion
de Prod. de Salmon y Trucha.
     8
         Plaintiffs’ Brief, p. 10.
Court No. 01-00955                                                   Page 19


should       have   drawn   adverse   inferences   against   Iscor   is   not

persuasive in light of 19 U.S.C. §1677e(b), which provides:

       Adverse inferences. If the . . . Commission . . . finds
       that an interested party has failed to cooperate by not
       acting to the best of its ability to comply with a re-
       quest for information . . ., the . . . Commission . . .,
       in reaching the applicable determination under this
       title, may use an inference that is adverse to the
       interests of that party in selecting from among the facts
       otherwise available. . . .

On its face, this standard is permissive.          Cf. URAA-SAA, pp. 869,

870.       And the defendant did not err in declining to rely on adverse

inferences with regard to Iscor.

               Plaintiffs’ position concerning the reasonableness of the

ITC’s reliance on Scaw Metals data, however, is on firmer ground.

See Plaintiffs’ Brief, p. 11.         Although, when making a preliminary

determination, the Commission is to use “the information available

to it at the time of the determination”, 19 U.S.C. §1673b(a)(1),

consideration must also be given to whether questionnaire data are

“sufficiently complete to provide an accurate characterization of

the condition” of an industry and whether “there [is] no likeli-

hood that additional evidence obtained in a final investigation
                                                                     9
would produce a materially different view of the industry”.               The




       9
       Torrington Co. v. United States, 16 CIT 220, 222, 790
F.Supp. 1161, 1166 (1992) (holding that ITC did not abuse its
discretion during preliminary review wherein it relied on
questionnaire data provided by 25 producers representing a
substantial quantum of production).
Court No. 01-00955                                                   Page 20


court concurs that the ITC’s reliance upon questionnaire data

submitted by Scaw Metals, a producer which apparently had not

exported wire rod to the U.S. market and accounts for only []

percent of South African production, amounted to an abuse of

discretion.     Defendant’s remand papers do not articulate why those

data are sufficient to properly describe the condition of the

South African industry, and this court, on the record presented,

cannot do so itself.

          Scaw Metals’ questionnaire data bear little connection to

the Commission’s paramount concern, namely, the potential, vel

non, that rising South African exports would cause that country’s

U.S.   import    ratio    to   imminently   exceed    the     three-percent

negligibility threshold.       Scaw Metals product did not contribute

to any data indicative of either historic or future South African

export growth, and its numbers are not probative of the capacity,

costs, inventories, or marketing strategies of the industry that

produces the unaccounted-for majority of South African product.


          The     ITC’s   alternative   reliance     on     data   from   the

affiliated    reporting    importer,    which   it   found     historically

accounted for nearly all of the reported imports from South Africa,

does not remedy this defect.       In addition to its above-mentioned

temporal infirmities, that importer data does not identify the

potential of South African industry to increase its U.S.-bound
Court No. 01-00955                                               Page 21


exports and are no substitute for producer data when considering

potential South African export growth and its concomitant impact

upon the import ratio, which is the statutory focal point of the

Commission’s negligibility-exception inquiry.


          The paucity of producer data hardly supports a conclusion

that the South African wire-rod industry has no potential to

imminently increase its U.S.-bound exports and constrains the

court to conclude that the ITC’s view is essentially surmise and

conjecture,   to   wit,   that   the   actual   production,   capacity10,

inventory, and marketing strategy of South Africa’s largest wire-

rod exporter would reveal no potential that its U.S. exports would

or could significantly increase within the imminent future.11         It

simply cannot be said that the record on remand shows that “there

[is] no likelihood that additional evidence obtained in a final



     10
       In fact, the Commission Staff Report estimated South African
wire rod production capacity to be [] percent during 2000, which
was “essentially unchanged in interim 2001.” Staff Report to the
Commission on Investigations Nos. 701-TA-417-421 and 731-TA-953-963
(Preliminary) (Oct. 9, 2001), p. II-6.
     11
        As the plaintiffs correctly point out, the Commission’s
reliance upon speculation rather than record evidence “inured to
Iscor’s benefit.” Plaintiffs’ Brief, p. 13. Additional policy
concerns are implicated thereby, in that the speculation would
permit the major exporter of South African subject imports named by
plaintiffs in their petition to
     avoid answer of a questionnaire . . . [and] benefit from
     a record (without such response) that might be more
     favorable . . . lead[ing] to [a] premature termination of
     an investigation.

Slip Op. 05-63, p. 14 n. 8.
Court No. 01-00955                                           Page 22


investigation would produce a materially different view of the

industry”12, absent relevant evidence indicative of future imminent

export potential of the South African industry.


            The ITC’s consideration of overall wire-rod import trends

does not fill this void.    While the results on remand may identify

reasons why producers in Brazil, Canada, Mexico, or Trinidad and

Tobago might increase U.S.-bound wire-rod exports should domestic

demand rise within the imminent future, the Commission does not

point to any evidence concerning South African export incentives

for comparison.    In fact, in adopting this approach, the ITC relied

on record evidence concerning those third countries’ “ability and

incentive to significantly increase their exports to the United

States”,13 the same kind of evidence that the record lacks for South

Africa.    That other countries might increase their exports to the

United States in the imminent future does not necessarily preclude

South Africa from doing the same thing.


            Similarly, lower U.S. demand leading to a diminished rate

of increase in South African subject imports bears no rational

connection to imminent potential South African import-ratio growth

in the absence of a clear and convincing prospective trend of




     12
       Torrington Co. v United States, 16 CIT at 221, 790 F.Supp.
at 1166.
     13
          Views of the Commission, p. 28.
Court No. 01-00955                                                       Page 23


imminently declining U.S. demand, which the Commission does not

forecast.    Cf. Views of the Commission, p. 31.             Additionally, the

causal link connecting declining South African import-ratio growth

to   declining   U.S.   demand   for    wire   rod    is    challenged   by   the

plaintiffs, who cite interim 2001 data which are not accounted for

in the ITC results and suggest that the South African industry has

the potential to increase wire-rod exports even during periods of

declining U.S. consumption.

            Viewed   as   a    whole,    there       is    not   a   sustainable

relationship between the facts that the ITC finds on remand and the

result that it reaches.       The court is thus constrained to conclude

that the Commission’s termination of investigation of subject

imports from South Africa is not in accordance with the law set

forth above that “weight[s] the scales in favor of affirmative and

against negative determinations.”          American Lamb Co. v. United

States, 785 F.2d at 1001. On remand, the defendant does not satisfy

the difficult standard of clear and convincing evidence of no

potential that imports from South Africa will imminently account

for more than three percent of all subject merchandise imported

into the United States.


            Defendant’s remand analysis fails to meet the American
Lamb standard in a second respect.             The Views of the Commission

indicate that, in reaching them, the ITC erroneously “considered
Court No. 01-00955                                                    Page 24


the evidence for an indication of the affirmative, rather than of

the negative.”     Yuasa-General Battery Corp. v. United States, 12

CIT 624, 626, 688 F.Supp. 1551, 1554 (1988).                   That is, the

Commission on remand has examined the record for an absence of

positive evidence showing that South African subject imports would

imminently rise, instead of clear and convincing evidence of the

opposite, as contemplated by the law, supra, governing this case.

See, e.g., Views of the Commission, pp. 2-3 (“we find no evidence
on the record that subject imports from South Africa . . . will

imminently exceed the applicable negligibility thresholds”); p. 23

(noting that the plaintiffs did not specifically argue that South

African imports were targeting the United States); id. n. 88

(stating that the plaintiffs “never argued that ‘market sources’

anticipated increased subject imports from South Africa”); p. 31 n.

119 (“Plaintiffs did not argue that subject imports specifically

from   South    Africa   would   imminently   exceed     the   negligibility

threshold”).


           The plaintiffs, on the other hand, have demonstrated

that, based on the record such as it still is, a likelihood exists

that contrary evidence would arise were a full investigation of

South African wire-rod exports to the United States undertaken.             In

concurring, the court does not weigh the evidence on the record.

Rather,   per   American   Lamb,   that   task   again    is   that   of   the

defendant.
Court No. 01-00955                                                   Page 25


                                     III

            Reaching this necessary conclusion, however, further

exacerbates    the   “timewarp”14   of   this   case,   its   “extraordinary

procedural posture”.       Slip Op. 05-63, p. 2.         Cf. Views of the

Commission, part II (Procedural History).          Since, under the Trade

Agreements Act of 1979, as amended, there remain two levels of

judicial review of ITC determinations, and the CAFC in this case

and others15 adheres to the remedy of remand to the Commission,
which approach is not necessarily efficacious, defendant’s counsel

are hereby directed to attempt to settle and submit on or before

January 31, 2007 a proposed order of disposition of the remainder

of this case in this Court of International Trade that is not

inconsistent with the foregoing opinion.

            So ordered.
Decided:    New York, New York
            January 17, 2007


                                    /s/ Thomas J. Aquilino, Jr.
                                             Senior Judge




     14
           Slip Op. 05-63, p. 4.
     15
        See, e.g., Nippon Steel Corp. v. United States, 458 F.3d
1345 (Fed.Cir. 2006), and cases cited therein.
