                           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
