SLIP OP. 03-56

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD K. EATON, JUDGE

__________________________________________

:

COMMITTEE FOR FAIR COKE TRADE AND UNITED :

STEELWORKERS OF AMERICA, AFL-CIO/CLC, :

:

PLAINTIFFS, :

:

V. : COURT NO. 01-00826

:

UNITED STATES OF AMERICA AND THE UNITED :

STATES INTERNATIONAL TRADE COMMISSION, :

:

DEFENDANTS, :

:

AND :

:

CITIC TRADING COMPANY, LTD., MINMETALS :

TOWNLORD TECHNOLOGY, LTD., DUFERCO, SA, :

MITSUBISHI CHEMICAL CORPORATION, AND :

MITSUI MINING COMPANY, LTD., :

:

DEFENDANT-INTERVENORS. :

__________________________________________:

[United States International Trade Commission’s negative preliminary injury determination

remanded for further proceedings in conformity with this opinion.]

Dated: May 20, 2003

Gardner, Carton & Douglas, LLC (W.N. Harrell Smith, IV; Wallace C. Solberg; Peter C.

Koch), for Plaintiffs Committee for Fair Coke Trade and United Steelworkers of America, AFLCIO/CLC.

Lyn M. Schlitt, General Counsel, United States International Trade Commission; James

M. Lyons, Deputy General Counsel, United States International Trade Commission (Karen

Veninga Driscoll), for Defendant.
COURT NO. 01-00826 PAGE 2

1 The Committee for Fair Coke Trade is a trade association whose members are

producers of blast furnace coke in the United States. Compl. ¶ 3. Members of the Committee for

Fair Coke Trade are: Acme Steel Co.; DTE Energy Services, Inc.; Koppers Industries, Inc.; and

Shenango, Inc. Id.

2 Citations are to the public versions of the Preliminary Determination, the

accompanying staff report, see Staff Report, Blast Furnace Coke From China and Japan, Inv.

Nos. 731-TA-951–952 (Prelim.), USITC Pub. 3444 (Aug. 2001), Pub. R. List 1, Doc. 59 (“Staff

Report”), and briefs submitted by Plaintiffs, see Pls.’ Mem. Supp. Mot. J. Agency R. (“Pls.’

Mem.”), and the ITC, see Def.’s Mem. Opp’n Pls.’ Mot. J. Agency R. (“Def.’s Resp.”). Where

the court discusses the postconference briefs submitted to the ITC on behalf of Duferco, SA, see

Duferco, SA’s Postconference Br., Pub. R. List 1, Doc. 35 (“Duferco Brief”), and on behalf of

Mitsubishi Chemical Corporation and Mitsui Mining Company, Ltd., see Mitsubishi Chem.

Corp.’s and Mitsui Mining Co., Ltd.’s Postconference Br., Pub. R. List 1, Doc. 38 (“Joint

Japanese Brief”), the court limits its discussion to the nonconfidential portions of those briefs.

Manatt, Phelps & Phillips, LLP (Jeffrey S. Neeley), for Defendant-Intervenors CITIC

Trading Company, Ltd. and Minmetals Townlord Technology, Ltd.

White & Case, LLP (Walter J. Spak; Adams C. Lee; Frank H. Morgan), for DefendantIntervenor Duferco, SA.

Cleary, Gottlieb, Steen & Hamilton (Donald L. Morgan), for Defendant-Intervenor

Mitsubishi Chemical Corporation.

Bingham McCutchen, LLP (Roger L. Selfe), for Defendant-Intervenor Mitsui Mining

Company, Ltd.

OPINION AND ORDER

EATON, Judge: This matter is before the court on the motion for judgment upon the agency

record, pursuant to USCIT R. 56.2, of the Committee for Fair Coke Trade1 and United

Steelworkers of America, AFL-CIO/CLC (“Plaintiffs”) contesting the negative preliminary injury

determination of the United States International Trade Commission (“ITC” or “Commission”)

contained in Blast Furnace Coke From China and Japan, Inv. Nos. 731-TA-951–952 (Prelim.),

USITC Pub. 3444 (Aug. 2001), Pub. R. List 1, Doc. 59 (“Preliminary Determination”).2 The ITC
COURT NO. 01-00826 PAGE 3

3 The scope of the ITC investigations covered “[b]last furnace coke made from coal

or mostly coal and other carbon materials, with a majority of individual pieces less than 100 MM

(4 inches) of a kind capable of being used in blast furnace operations, whether or not mixed with

coke breeze.” Certain Blast Furnace Coke Prods. From the P.R.C. and Japan, 66 Fed. Reg.

39,009 (Dep’t Commerce July 26, 2001) (notice of initiation of antidumping investigations). 

“[C]oke breeze is the fine screenings from crushed coke used predominantly as a fuel source in

the process of agglomerating iron.” Staff Report at I-5 n.10.

opposes this motion and urges the court to sustain its Preliminary Determination. The court has

jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(1)(C). For the

reasons set forth below, the court remands this matter to the ITC for further proceedings in

accordance with this opinion. 

BACKGROUND

On June 29, 2001, Plaintiffs filed a petition alleging that an industry in the United States

was materially injured or threatened with material injury by reason of less than fair value imports

of blast furnace coke from the People’s Republic of China and Japan (“Subject Imports”).3 See

Certain Blast Furnace Coke Prods. From the P.R.C. and Japan, 66 Fed. Reg. at 39,009; Blast

Furnace Coke From China and Japan, 66 Fed. Reg. 35,669 (ITC July 6, 2001) (institution of

antidumping investigations). The ITC conducted preliminary antidumping duty investigations

and issued the Preliminary Determination, finding that there was no reasonable indication that an

industry in the United States was materially injured or threatened with material injury within the

meaning of 19 U.S.C. § 1673b(a) by reason of the Subject Imports. See Blast Furnace Coke

From China and Japan, 66 Fed. Reg. 45,692 (ITC Aug. 29, 2001) (prelim. determination). This

negative preliminary determination terminated the investigations. See 19 U.S.C. § 1673b(a)(1)

(“If the Commission finds that imports of the subject merchandise are negligible or otherwise
COURT NO. 01-00826 PAGE 4

makes a negative determination under this paragraph, the investigation shall be terminated.”).

STANDARD OF REVIEW

When considering an ITC preliminary determination in the context of an antidumping

review, “[t]he court shall hold unlawful any determination, finding, or conclusion found . . . to be

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 19

U.S.C. § 1516a(b)(1)(A). The court, in reviewing the ITC’s decision, must “ascertain whether

there was a rational basis for the determination.” Ranchers-Cattlemen Action Legal Found. v.

United States, 23 CIT 861, 878, 74 F. Supp. 2d 1353, 1369 (1999) (citing Torrington Co. v.

United States, 16 CIT 220, 223, 790 F. Supp. 1161, 1167 (1992)); see also id. (quoting Conn.

Steel Corp. v. United States, 18 CIT 313, 315, 852 F. Supp. 1061, 1064 (1994)) (“The Court may

only reverse the ITC’s determination if there is a ‘clear error’ of judgment and where there is ‘no

rational nexus between the facts found and the choices made.’”). Nonetheless, the ITC’s

conclusions must be based on evidence, not conjecture, and in no event may the court “supply a

reasoned basis for the agency’s action that the agency itself has not given . . . .” Bowman

Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974) (citing SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947)); see also Altx, Inc. v. United States, 26 CIT __, __, Slip Op. 02-

154 at 4 (Dec. 31, 2002) (“The court can only review the reasoning that the Commission

expresses.”). 

In the course of its review, the court must examine “whether the [ITC] has articulated the

requisite rational connection between the facts found and the choice[s] made” in light of the
COURT NO. 01-00826 PAGE 5

4 Pursuant to subsection 1673b(a), the ITC shall make a preliminary determination

based on 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— 

(continued...)

reasonable indication standard set forth in 19 U.S.C. § 1673b(a). See Calabrian Corp. v. USITC,

16 CIT 342, 344–45, 794 F. Supp. 377, 381 (1992) (applying 19 U.S.C. § 1673b(a) (1988)). In

making its preliminary determination, “[t]he ITC . . . must decide whether there is a reasonable

indication for finding ‘(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.’” Ranchers-Cattlemen, 23 CIT at 877, 74 F. Supp. 2d at 1368

(quoting Am. Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed. Cir. 1986)); Am. Lamb, 785

F.2d at 1001 (“[The] ITC has consistently viewed the statutory ‘reasonable indication’ standard

as one requiring that it issue a negative determination . . . 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.”). 

DISCUSSION

I. The ITC’s Findings

In an antidumping duty investigation, the ITC must preliminarily determine, based on the

information available to it at the time, whether there is a reasonable indication that an industry in

the United States is materially injured or threatened with material injury by reason of imports of

the subject merchandise. 19 U.S.C. § 1673b(a)(1)(A)(i)–(ii).4 In determining whether there is a
COURT NO. 01-00826 PAGE 6

4

(...continued)

(i) is materially injured, or

(ii) is threatened with material injury . . .

by reason of imports of the subject merchandise and that imports of

the subject merchandise are not negligible. 

19 U.S.C. § 1673b(a)(1)(A)(i)–(ii). 

5 By statute the ITC considers the following factors, “among other relevant

economic factors”:

 

(I) [factor pertaining to countervailable subsidies],

(II) any existing unused production capacity or imminent,

substantial increase in production capacity in the exporting country

indicating the likelihood of substantially increased imports of the

subject merchandise into the United States, taking into account the

availability of other export markets to absorb any additional

exports, 

(III) a significant rate of increase of the volume or market

penetration of imports of the subject merchandise indicating the

likelihood of substantially increased imports, 

(IV) whether imports of the subject merchandise are entering at

prices that are likely to have a significant depressing or suppressing

effect on domestic prices, and are likely to increase demand for

further imports,

(continued...)

reasonable indication of material injury, the ITC shall consider the imports’: (1) volume, (2)

effect on prices for the domestic like product, and (3) impact on the domestic industry. 19

U.S.C. § 1677(7)(B)(i)(I)–(III). Further, the ITC “may consider such other economic factors as

are relevant” to its material injury determination. 19 U.S.C. § 1677(7)(B)(ii). In addition, the

ITC shall examine whether there is a reasonable indication of threat of material injury, taking

into consideration the relevant factors set forth in 19 U.S.C. § 1677(7)(F)(i).5 The presence or
COURT NO. 01-00826 PAGE 7

5

(...continued)

(V) inventories of the subject merchandise, 

(VI) the potential for product-shifting if production facilities in the

foreign country, which can be used to produce the subject

merchandise, are currently being used to produce other products, 

(VII) [factor pertaining to agricultural products],

(VIII) the actual and potential negative effects on the existing

development and production efforts of the domestic industry,

including efforts to develop a derivative or more advanced version

of the domestic like product, and 

(IX) any other demonstrable adverse trends that indicate the

probability that there is likely to be material injury by reason of

imports (or sale for importation) of the subject merchandise

(whether or not it is actually being imported at the time).

19 U.S.C. § 1677(7)(F)(i)(I)–(IX). In the Preliminary Determination, the ITC considered factors

I and VII inapplicable to this antidumping investigation. Prelim. Determination at 22 n.156.

absence of any statutory factor “shall not necessarily give decisive guidance with respect to the

determination”; however, the ITC’s threat determination “may not be made on the basis of mere

conjecture or supposition.” 19 U.S.C. § 1677(7)(F)(ii).

By its Preliminary Determination the ITC concluded that there was no reasonable

indication of material injury to the domestic blast furnace coke industry by reason of the

importation of blast furnace coke. See Prelim. Determination at 3. In reaching this

determination, the ITC found that competition between the Subject Imports and the domestic like

product was “attenuated,” and thus insufficient to serve as a basis for finding material injury. Id.

at 9 (finding that “there [was] a reasonable overlap of competition sufficient for cumulation,

while at the same time recognizing the attenuated competition between subject imports and
COURT NO. 01-00826 PAGE 8

domestically produced blast furnace coke.”). In light of that finding, and other findings

concerning conditions of competition, the ITC further concluded that the volume, effect on

domestic prices, and impact of the Subject Imports were not significant. Id. at 18–19, 21. In

addition, the ITC determined that there was no reasonable indication that the domestic coke

industry was threatened with material injury due to the importation of blast furnace coke. Id. at

26.

Plaintiffs challenge the ITC’s attenuated competition finding and the ITC’s negative

determinations with respect to volume, price effect, impact, and threat. Plaintiffs claim that “the

majority’s attenuated competition conclusion has no rational basis in fact,” in particular taking

issue with the ITC’s findings concerning mode of transportation and product quality. Pls.’ Mem.

at 25. Plaintiffs further contend that the allegedly erroneous attenuated competition finding is

central to the ITC’s determinations with respect to material injury and threat, and that “[w]hen it

fails, little is left of the rest of the Majority Opinion.” Id. at 26. The ITC responds that its

attenuated competition finding, “which it relied upon both in its material injury and threat of

material injury determinations, is supported by clear and convincing evidence.” Def.’s Resp. at

16.

A. Attenuated Competition

In the Preliminary Determination the ITC found that competition between the Subject

Imports and the domestic like product was “attenuated” for two reasons. First, “a significant
COURT NO. 01-00826 PAGE 9

6 By “over water” the ITC appears to mean by oceangoing vessel and possibly by

“Panamax” vessel. “‘Panamax’ refers to the maximum dimensions allowable to permit the

vessel to go through the Panama Canal . . . .” 2 Thomas J. Schoenbaum, Admiralty & Maritime

Law § 10–4, at 29 n.4 (3d ed. 2001).

amount of subject imports [was] transported over water6 and sold directly to steel makers at steel

plants with port facilities,” and, thus, the Subject Imports were restricted to delivery at limited

locations and were more economical for the purchaser to receive; and second, “blast furnace coke

transported over water result[ed] in less product deterioration than blast furnace coke transported

over land.” Prelim. Determination at 9–10. As a result, the ITC concluded that, for the most

part, the Subject Imports did not compete directly with domestically produced blast furnace coke.

 This finding of attenuated competition was an important factor in the ITC’s

determinations with respect to the Subject Imports’ effect on domestic prices and threat of

material injury. In support of its position with respect to price effect, the ITC stated that the

“nature of the conditions of competition for this industry” confirmed “[t]he lack of significant

adverse price effects by the subject imports . . . .” Prelim. Determination at 19. Further, the ITC

concluded that “[t]here is no evidence on this record that the prices of these imports, that to a

great extent do not compete with domestically produced blast furnace coke, and which constitute

the overwhelming percent of the subject imports, have had a significant effect on domestic

prices.” Id. (emphasis added). In support of its position with respect to threat of material injury,

the ITC stated that 

the vast majority of subject imports during the period of

investigation were destined for [certain domestic steel producers]. 

As stated earlier, these . . . steel producers do not generally

purchase domestically produced blast furnace coke for use at their
COURT NO. 01-00826 PAGE 10

7 The court notes that it is applying a different standard of review in the present

case from that in Steel Wire Rope. In Steel Wire Rope, the court reviewed the ITC’s final

determination to ascertain whether it was “unsupported by substantial evidence on the record, or

otherwise not in accordance with law . . . .” 19 U.S.C. § 1516a(b)(1)(B) (1994); see Steel Wire

Rope, 26 CIT at __, 201 F. Supp. 2d at 1291 (citing 19 U.S.C. § 1516a(b)(1)(B) (1994)). Here,

the court applies the arbitrary and capricious standard, which requires that “the agency . . .

examine the relevant data and articulate a satisfactory explanation for its action including a

‘rational connection between the facts found and the choice made.’” Mot. Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v.

United States, 371 U.S. 156, 168 (1962)) (emphasis added); Candle Corp. of Am. v. USITC, 27

CIT __, Slip Op. 03-40 at 12–13 (Apr. 8, 2003) (quoting Mot. Vehicle Mfrs. Ass’n, 463 U.S. at

43); but see Fujian Mach. & Equip. Imp. & Exp. Corp. v. United States, 25 CIT __, __, 178 F.

Supp. 2d 1305, 1314 (2001) (quoting Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 n.3

(D.C. Cir. 1996) (bracketing in original)) (“[S]ubstantial evidence and arbitrary and capricious

‘connote[] the same substantive standard of review’” in their application to factual issues).

steel production facilities with port facilities, reportedly due to the

economic advantages of water transport which reduces

degradation . . . . 

Id. at 23. 

Case law provides some guidance as to how this court should view the ITC’s attenuated

competition methodology. In Committee of Domestic Steel Wire Rope & Specialty Cable

Manufacturers v. United States, 26 CIT __, 201 F. Supp. 2d 1287 (2002), the court reviewed the

ITC’s final determination that an industry in the United States was neither materially injured nor

threatened with material injury by reason of imports of steel wire rope.7 The ITC had found that

although a reasonable overlap of competition existed for purposes of cumulation, competition

was nevertheless “attenuated” for purposes of injury “due to quality and product mix issues.” 

Steel Wire Rope From China and India, Inv. Nos. 731-TA-868–869 (Final), USITC Pub. 3406
COURT NO. 01-00826 PAGE 11

8 The court in Steel Wire Rope recognized that the ITC may find a reasonable

overlap of competition for cumulation while also finding attenuated competition between the

imports and the domestic like product for its injury analysis, as these two inquiries serve different

purposes. See Steel Wire Rope, 26 CIT at __, 201 F. Supp. 2d at 1297 (citing BIC Corp. v.

United States, 21 CIT 448, 964 F. Supp. 391 (1997)) (“[T]wo distinct ‘competition’ findings are

logical and legally permissible.”); see also BIC, 21 CIT at 455, 964 F. Supp. at 399 (“[L]ike

product, cumulation, and causation are functionally different inquiries because they serve

different statutory purposes.” (citation omitted)). Generally, for purposes of cumulation the ITC

considers four factors in assessing whether the imports compete with each other and with the

domestic like product: “(1) the degree of fungibility between products; (2) the presence of sales

or offers to sell in the same geographic; (3) the existence of common or similar channels of

distribution; and (4) the simultaneous presence of imports in the market.” Wieland Werke, AG v.

United States, 13 CIT 561, 563, 718 F. Supp. 50, 52 (1989); see also Steel Wire Rope, 26 CIT at

__, 201 F. Supp. 2d at 1292 n.4. Here, as in Steel Wire Rope, the ITC found a reasonable overlap

of competition sufficient for cumulation while recognizing that competition was attenuated for

purposes of causation. Prelim. Determination at 9. No party disputes the ITC’s decision to

cumulate the Subject Imports.

9

In the Steel Wire Rope Final Determination the ITC cited differences in product

quality and product mix which led to the conclusion that substitutability between imports of steel

wire rope and the domestic like product was limited. See Steel Wire Rope Final Determination

at 10–12. In reaching its decision, the ITC found that one of the reasons the products were not in

direct competition was that they could not be used for the same purposes. The ITC stated:

Many purchasers and distributors state that only domestic product

is used for so-called “critical” applications: those in which failure

of the rope could result in damage, injury, or death. Similarly,

various steel wire rope distributors expressed concern over liability

arising out of any failure by imported steel wire rope they might

sell, particularly imports from China.

Id. at 13–14. 

(Mar. 2001) (“Steel Wire Rope Final Determination”) at 10.8 The court upheld this

determination, noting that the ITC had “detailed the reasons why the competition between the

subject imports and the domestic like product was ‘attenuated,’” i.e., that differences in quality

and product mix limited substitutability.9 Steel Wire Rope, 26 CIT at __, 201 F. Supp. 2d at

1299. In other words, the court found that although an examination of the four cumulation
COURT NO. 01-00826 PAGE 12

10 In the Preliminary Determination, the ITC combined its mode of transportation

and product quality findings, often in the same sentence. For example, in full, this sentence

states: “According to one of the Chinese respondents, it is far more economical for purchasers to

receive blast furnace coke by vessel than by rail or truck because receiving the coke by water

reduces the amount of handling of the coke, which in turn, reduces degradation.” Prelim.

Determination at 14. For purposes of clarity, the court will analyze these two factors separately. 

11 On July 20, 2001, the ITC held a public conference and heard testimony from Mr.

Malashevich, an economist appearing for the Japanese respondents, among others. See Blast

Furnace Coke From China and Japan, 66 Fed. Reg. at 35,669.

factors supported a cumulation finding, i.e., a reasonable overlap of competition, other factors

justified a finding of attenuated competition. See Steel Wire Rope, 26 CIT at __, 201 F. Supp. 2d

at 1292–93; see also id. at 1292 n.4 (quoting Steel Wire Rope Final Determination at 15).

1. Mode of Transportation

The ITC found that, during the period of investigation, most sales of the Subject Imports

were to U.S. steel producers with blast furnace facilities equipped to receive the imports by

water. Prelim. Determination at 11, 12. In light of this finding, the ITC observed: “[I]t is far

more economical for purchasers to receive blast furnace coke by vessel than by rail or truck . . . .” 

Id. at 14 & nn.95–96 (citing Duferco Br. at 6–7, 18–19; Duferco Br., Ex. 3, Palmer Aff. (“Palmer

Affidavit”) at 1–2).10 The ITC also stated that “imported coke was a viable option only to U.S.

customers with ready access to port facilities due to the significance of freight costs. . . . [M]ost

U.S. merchant producers of coke were located inland, and so were limited to sales to nearby steel

mills.” Id. & n.97 (citing Conference Transcript, Pub. R. List 1, Doc. 26 (“Tr.”) at 85 (Test. of

Mr. Bruce Malashevich)11). Thus, the ITC found that due to the greater cost of land transport

used by the domestic producers and the scarcity of plants with adequate port facilities
COURT NO. 01-00826 PAGE 13

12 In the Preliminary Determination and in Defendant’s Response, the ITC cited, as

evidence, certain page ranges in the Duferco Brief and the Joint Japanese Brief without

identifying the specific passages that it found persuasive. Thus, as the exact language on which

the ITC relied is unspecified, where the court quotes these Briefs, it focuses on the language

(continued...)

competition between the foreign and domestic products was limited.

Plaintiffs argue that the attenuated competition finding based on mode of transportation is

“factually incorrect.” Pls.’ Mem. at 5. Plaintiffs maintain that “the preponderance of coke is

delivered in modes of transportation identical to those used [to ship] U.S.-produced coke . . . .” 

Id. According to Plaintiffs, “[o]nly one blast furnace . . . receives subject imports by ocean

going vessel on the coast,” and certain foreign producers’ shipments of the Subject Imports

involve transporting such imports by land as well as by water. Id. at 11. Plaintiffs argue that the

percentage of Subject Imports delivered solely by waterborne vessel declined during the period

of investigation and that this “necessarily indicates that subject imports delivered not by

Panamax vessel, but by comparable modes of transport (barge/rail or both) to that used by the

domestic industry sharply increased during the [period of investigation].” Id. Thus, Plaintiffs

urge the court to find that the ITC’s attenuated competition finding based on mode of

transportation “has no rational basis in fact . . . .” Id. at 25.

In support of its findings with respect to mode of transportation the ITC claimed three

sources: (1) the testimony of Mr. Bruce Malashevich; (2) the Duferco Brief; and (3) the Palmer

Affidavit. Prelim. Determination at 14 nn.95–97; see also id. at 12 n.74 (citing Joint Japanese

Br. at 33 n.23).12 Mr. Malashevich stated, in relevant part: 
COURT NO. 01-00826 PAGE 14

12(...continued)

which seems to support the ITC’s position. Furthermore, the ITC cited the confidential version

of the Joint Japanese Brief as support for the proposition that waterborne transportation resulted

in lower costs than land transportation. See Prelim. Determination at 12 & n.74; see also Joint

Japanese Br., Confidential R. List 2, Doc. 13 at 33 n.23. The court has examined the specific

footnote in the Brief and finds that the confidential sources cited therein make substantially the

same point as is made in publicly available sources elsewhere. 

13 While the statements might appear to support the ITC’s conclusions with respect

to waterborne transport, they are so lacking in specificity as to any comparison of freight costs

among the various modes of transportation that they fail to provide a “rational nexus between the

facts found and the choices made.” See Ranchers-Cattlemen, 23 CIT at 878, 74 F. Supp. 2d at

1369 (internal quotation omitted). 

[A]nother condition of competition very pertinent is that furnace

coke has a low ratio of value to weight. Differences in freight

costs thus weigh heavily in sourcing decisions.13 As a practical

matter, imported coke is a viable option only to U.S. customers

with ready access to port facilities. Most U.S. merchant producers

of coke, however, are located inland and so are limited to sales for

consumption by nearby steel mills.

Trade sources tell me that for the last ten years one of the largest

purchasers of subject imports . . . also has been the largest seller of

U.S. produced coke on the merchant market. Differences in freight

costs presumably lie behind this pattern. 

Tr. at 85:14–25 to 86:1. The reasons for relying so heavily on this testimony are unclear. While

tending to support the conclusion that waterborne coke can be landed only at particular sites, Mr.

Malashevich’s testimony does not provide any detail with respect to the claimed differences in

freight costs for the transportation of domestic coke in comparison with imported coke. Thus,

this testimony fails to provide a basis for the ITC’s conclusion that the differences in such costs

were “significant.” Moreover, Mr. Malashevich offered testimony based on what “[t]rade

sources [told] [him]” and concluded that “presumably” freight costs were the reason that a

certain domestic steel producer decided to purchase Subject Imports rather than rely on other
COURT NO. 01-00826 PAGE 15

domestic sources of blast furnace coke. Given the importance placed on the “significance of

freight costs” in the ITC’s finding of attenuated competition, this testimony simply provides

insufficient support for this conclusion. 

Next, the ITC cited the Duferco Brief for the proposition that it is “far more economical”

to receive imports by water than by land. Prelim. Determination at 14 n.95. Indeed, the ITC

seemingly borrowed the “far more economical” language, which appears in the Preliminary

Determination, from the Duferco Brief:

Imported Chinese or Japanese furnace coke [is] imported almost

exclusively to U.S. integrateds that are located at sites that [are]

accessible to waterway transport. For example, [one steel

producer’s] plant . . . is located on the water and is set up to receive

materials by vessel [which] is far more economical than to receive

materials by truck or rail. . . . Any site that cannot be easily

accessed by waterway becomes economically prohibited for

imports because of the additional overland transportation costs by

truck or rail that are usually more expensive than waterway freight

costs . . . .

Duferco Br. at 6 (emphasis added). An examination of the sources cited in the Duferco Brief for

these statements, however, reveals that they fail to substantiate the conclusions reached in the

Brief. For instance, Mr. Andrew Aloe’s testimony, cited in the Duferco Brief as the basis for the

proposition that “[t]he ability to receive materials by water is superior [to] overland transport,”

see id., does not, in fact, indicate any economic benefits accruing to purchasers of the Subject

Imports resulting from waterborne transport, but rather addresses the degradation that results

from handling blast furnace coke:

[T]raditionally what happens is that when we produce our coke it

goes directly from a screening station into a rail car directly to the
COURT NO. 01-00826 PAGE 16

14 The Duferco Brief also cites certain statements made by Mr. Palmer in his

Affidavit and during his testimony at the public conference, which are similar in substance. The

court addresses such statements below.

customer; [there is a] minimum amount of breakage because . . .

when . . . blast furnace coke and foundry coke [are] transported

[they] will break. Every time you move it, every time it drops from

one belt to another belt, there’s going to be breakage.

 

We don’t want to move [the coke] at all, so when we have to put it

on the ground and inventory it we normally would put it into a

truck. There’s one drop. Then the truck takes it out to where

you’re going to inventory it. He drops it again on the ground, and

then because you have a pile of coke . . . you use up a vast amount

of area if you just start laying coke down one truck at a time, so

you need a high lift operator who then is going to jam his

shovel . . . into that pile and start building it up . . . . 

Every time he does that he’s running over it. He’s putting that

heavy piece of equipment into it and you’re breaking it up, or

you’re putting it into a conveyor that then takes it up to a varying

height and it drops, and then again, it’s breaking. Just putting it

down you have breakage.

Tr. at 74:1–23.14 No other source cited in the Duferco Brief can be said to demonstrate that it is

“far more economical” to receive coke by waterborne transport than by other means. Thus,

because the evidence cited in the Brief does not address any cost advantages resulting from

waterborne transport, the ITC’s reliance on the Duferco Brief for its conclusions with respect to

these matters is not justified. 

Finally, the ITC cited the Palmer Affidavit as confirmation of its finding that freight costs

played a major role in the U.S. steel producers’ preference for the Subject Imports. This

Affidavit states:

Several key factors are considered by [the domestic steel
COURT NO. 01-00826 PAGE 17

producers] in selecting [their] outside suppliers of blast furnace

coke. I believe that these factors are still considered by integrateds

and serve to limit the volume of Chinese imports. 

First, transportation costs. [Some steel companies] considered the

transportation costs for delivering furnace coke from the supplier

of their furnaces. [One company’s blast furnace steel facility] is

located on the water . . . and thus has a bias towards global

sourcing. [This facility] is configured to receive large quantities of

raw materials more economically by water than by rail or truck.

Waterway transport from [another] cokemaking facility to [a

waterside facility] is not feasible because of the distance and

complicated logistics required. 

The same logistics concerns also limit the locations to which

imports can be delivered. Ocean vessels usually transport coke in

40,000–50,000 metric ton increments, whereas lake vessels can

hold only 18,000 metric tons. It is my understanding that . . . 

[confidential information omitted].

Palmer Aff. at 1–2. As with Mr. Malashevich’s testimony, the Palmer Affidavit contains

qualifying language such as “I believe” and “It is my understanding” when discussing the

motivation for the domestic steel producers to choose a source for blast furnace coke from

outside of the United States. See id. While the Palmer Affidavit does suggest that delivery of

coke at one specific steel facility could be achieved “more economically by water,” this statement

cannot support the general conclusion that waterborne transport is “far more economical” than

delivery by land. The clear purpose and import of the Palmer Affidavit, and for that matter, Mr.

Malashevich’s testimony, is that foreign shipments can be off-loaded at limited sites. Their

statements, however, do not demonstrate that the domestic producers’ means of delivery are

somehow limited, nor are they authoritative with respect to cost. No meaningful comparison

between the freight costs associated with domestic deliveries and foreign deliveries is provided

by the Palmer Affidavit. Thus, taken as a whole, the sources cited by the ITC as support for its
COURT NO. 01-00826 PAGE 18

15 Moreover, the ITC found the following with respect to product quality:

Blast furnace coke crumbles whenever it is being transported or

handled, creating particles of coke called coke breeze. Operators

do not want this breeze in their furnaces because it can plug up the

blast furnaces. A higher percentage of breeze in a shipment,

caused, for example, by the coke being on the ground, can result in

a decreased price for the shipment, either because the purchaser

discounts the shipment or because the breeze is screened out. 

Therefore, blast furnace coke producers seek to minimize

crumbling or degradation of the blast furnace coke prior to use, by

minimizing handling, moving or transporting the coke.

 Prelim. Determination at 14 & nn.90–93 (citing Tr. at 46–47; 74–75; 48–49; 51–52, 76); see

also Def.’s Resp. at 12 (citing Tr. at 75 (Test. of Mr. Richard Boltuck)) (“Coke breaks very easily

if it is not handled properly . . . .”); Pls.’ Mem. at 4 (“[H]andling, and not mode of transportation,

causes degradation.”). 

conclusion that it is “far more economical” to receive waterborne Subject Imports than to receive

domestic coke by land transport do not rise to the level of “clear and convincing” evidence

required by case law. See Ranchers-Cattlemen, 23 CIT at 877, 74 F. Supp. 2d at 1368 (quoting

Am. Lamb, 785 F.2d at 1001) (“The ITC . . . must decide whether there is a reasonable indication

for finding ‘(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.’”).

2. Product Quality 

In the Preliminary Determination, the ITC found that the Subject Imports, which were

transported and delivered by water to U.S. steel producers’ port facilities, deteriorated less in

transit than domestic blast furnace coke.15 Prelim. Determination at 9–10. The ITC noted that

“purchasing the subject imports through a port facility results in lower degradation of the blast
COURT NO. 01-00826 PAGE 19

furnace coke” and that higher product quality is maintained “[by transporting the Subject

Imports] over water rather than over land.” Id. at 12 & n.74 (citing Duferco Br. at 6–7; Joint

Japanese Br. at 33 n.23) (emphasis added); see also Def.’s Resp. at 12 (“[T]he record reflects

[that] market participants consider water transport easier on blast furnace coke.”). The ITC

further observed that “receiving the coke by water reduces the amount of handling of the coke,

which in turn, reduces degradation.” Prelim. Determination at 14 & nn.95–96 (citing Duferco

Br. at 6–7, 18–19; Palmer Aff. at 1–2). With these findings as its predicate, the ITC determined

that the Subject Imports did not directly compete with the domestic like product on the basis of

quality. See generally id. at 9–10.

Plaintiffs contend that the record fails to support the ITC’s finding that the Subject

Imports are less physically degraded when transported and delivered by water. First, Plaintiffs

argue that “there is no evidence of record of greater or lesser degradation within transit by mode

(Panamax vessel, barge, rail).” Pls.’ Mem. at 12. Rather, Plaintiffs claim that frequency of

handling is the determinative factor in coke degradation. Plaintiffs cite an exhibit attached to the

Joint Japanese Brief, which purports to compare the price for coke that has been handled several

times with a hypothetically constructed price of coke that has never been handled. See Joint

Japanese Br. at 19a, Ex. 11A (“Japanese Exhibit”). Plaintiffs argue that the Japanese Exhibit “is

based on the (correct) premise that it is valid to show the effect of handling on product

degradation, but that mode of transport does not determine the degree of degradation.” Pls.’

Mem. at 13. Second, with respect to the impact of degradation on the price of blast furnace coke,

Plaintiffs claim that “product difference[s] can account for price differences of up to but not more
COURT NO. 01-00826 PAGE 20

16 Mr. Bachman testified:

I think first and foremost it must be recognized that coke consumed

in this country is fungible or considered the same, whether it’s

domestically produced or imported. These cokes can be blended or

used alternatively . . . and once the coke is qualified at a user’s

facility these materials are considered interchangeable.

Any differences between coke sources can [be] and are adjusted at

the user levels through operational mechanisms that vary from user

to user, whether they’re outlined in specific contracts or not. 

Pricing adjustments can also be used. In our experience, these

adjustments are minor, I would say in the range of three, four, five

dollars a ton, and are therefore not sufficient to impact the

widespread price differential between domestic and imported

cokes.

Tr. at 27:23–25 to 28:1–11. 

than $3 to $5 per metric ton.” Id. at 13 (discussing testimony of Mr. Drew Bachman).16 Finally,

Plaintiffs argue the evidence shows that, in any event, “[p]roduct degradation is only one element

of product quality” and that other factors, such as “chemistry, ash content, and physical

condition,” also determine product quality. Id. (citing Staff Report at II-4 to -8); id. at 25. 

Therefore, Plaintiffs contend that an opportunity should be provided for the distribution of

[p]urchaser questionnaires requesting purchaser specifications blast

furnace operational requirements and coke quality tolerances,

would permit a judgment on the degree to which product quality

differentiates product usability, geographic coverage, and may or

may not mitigate price underselling and to what degree . . . .

Id. at 25. Thus, it is Plaintiffs’ contention that a likelihood exists that contrary evidence would

arise in a final investigation. Id. at 7.

The ITC counters that “there is record evidence that water transport is easier on blast
COURT NO. 01-00826 PAGE 21

17 Indeed, the Preliminary Determination itself states “blast furnace coke producers

seek to minimize crumbling or degradation of the blast furnace coke prior to use, by minimizing

handling, moving or transporting the coke.” Prelim. Determination at 14 (emphasis added). 

This general statement would seem to apply equally to domestically produced coke and the

Subject Imports.

furnace coke than overland transportation.” Def.’s Resp. at 10. With respect to the effect of

degradation on the price of a shipment, the ITC argues that “a high percentage of breeze in a coke

shipment can result in a discounted price.” Id. at 14. In addition, the ITC argues that the

Japanese Exhibit does not support Plaintiffs’ claim because it “uses the number of times blast

furnace coke is handled as a measure of degradation, but never states that all modes of

transporting coke cause equivalent levels of degradation.” Id. at 12. Thus, it is the ITC’s

contention that “clear and convincing evidence” supports its attenuated competition finding with

respect to product quality. Id. at 15–16. 

In the Preliminary Determination the ITC cited the following evidence to support its

findings with respect to product quality: (1) the Duferco Brief; (2) the Palmer Affidavit; and (3)

the Joint Japanese Brief. First, in the Duferco Brief, counsel asserted: “The ability to receive

materials by water is superior than [sic] overland transport because it reduces the amount of

handling of the furnace coke, which in turn, reduces the amount of degradation that results from

each handling. . . . [O]verland transportation . . . require[s] more handling and result[s] in greater

degradation.” Duferco Br. at 6 & nn.9–10 (citing Tr. at 74; Tr. at 104) (emphasis added). It is

worth noting that this statement supports Plaintiffs’ position that handling, not mode of

transportation, is the significant factor in coke degradation.17 Further, the evidence cited in the

Duferco Brief, e.g., the testimony of Mr. Aloe, also deals with the deteriorating effects of
COURT NO. 01-00826 PAGE 22

repeated handling on blast furnace coke and tends to undermine the ITC’s finding that

transporting blast furnace coke by water results in less degradation and less coke breeze than

transporting it by land. Mr. Aloe’s testimony indicates that in the moving, lifting, loading, and

unloading of blast furnace coke breakage occurs, and that more, not less, breakage would result

from oceangoing transport or delivery: 

[I]t’s not an easy thing to offload those [oceangoing] vessels. 

It goes into a barge, and then that barge is taken up to some dock. 

It’s taken off the dock, and then it’s moved from that dock either

by truck or rail . . . to the ultimate consumer. You’d think with all

that moving around that [the respondents would] have a substantial

disadvantage in the marketplace because their ultimate product that

they’re delivering is broken up.

Tr. 80:18–25 to 81:1. In fact, this evidence does not discuss the effect of waterborne transport on

the Subject Imports, only delivery. The Duferco Brief also cites the testimony of Mr. Palmer

given separate from his affidavit. This testimony merely supports the proposition that it is

difficult to transport imports inland, and that “[t]he need for accessible location precludes any

significant volume of imports from being delivered to any land-locked locations.” Tr. at

104:11–13. Again, the effect of waterborne transport on the quality of the Subject Imports is not

mentioned. As the ITC itself concedes that “[c]oke breaks very easily if it is not handled

properly,” Def.’s Resp. at 12, it is difficult to see how Mr. Palmer’s testimony provides much

support for the proposition that the Subject Imports are of a higher quality than domestic coke

based on mode of transportation. Thus, this evidence does not support the ITC’s finding.

Second, although it addresses the question of product quality, the court does not find that
COURT NO. 01-00826 PAGE 23

the Palmer Affidavit serves as adequate evidentiary support with respect to the ITC’s product

quality finding. Mr. Palmer stated that “[o]cean and river transport is more advantageous than

overland transport because it requires less handling, which causes degradation of the coke.” 

Palmer Aff. at 2. Mr. Palmer further stated:

To deliver coke to [a domestic steel producer’s blast furnace steel

facility] by water, the coke can be transported directly from the

ocean vessel and placed at the stockyard located right before the

blast furnace. In contrast, to deliver coke to [that facility] by land,

the coke is handled many more times and suffers a much higher

degradation rate. It is my understanding that . . . [confidential

information omitted].

Id. The utility of the Palmer Affidavit, however, is limited because: (1) there is no indication that

his views are based on firsthand knowledge; (2) the statements that the ITC found convincing

with respect to the reasons certain purchasers chose imported coke contain the qualifying

language “It is my understanding”; and (3) his statements tend equally to support Plaintiffs’

position that it is the frequency with which coke is handled, not necessarily mode of

transportation, that leads to product degradation. 

Finally, contrary to the argument made by the ITC in its Response, the evidence cited in

the Joint Japanese Brief does not tend to prove the assertion that water transport is “gentler” on

blast furnace coke than land transport. See Def.’s Resp. at 11. The Brief cites the testimony of

Mr. Ryu Hasegawa who stated that Mitsui and Mitsubishi have “specialized equipment to load

blast furnace coke onto Panamax vessels with minimal breakage.” Tr. at 99:14–15. However,

Mr. Hasegawa’s testimony deals with loading, not transport or delivery. Moreover, neither the

Brief nor the evidence cited in the Brief makes any meaningful comparison between domestic
COURT NO. 01-00826 PAGE 24

18 There is record evidence that price is an important, though not necessarily

determinative, consideration: 

Price is an important factor in the sale of blast furnace coke,

however other factors such as quality, availability, and reliability of

supply are significant factors in purchase decisions. Suppliers

generally compete on price only if their product has been tested

and deemed as consumable by the end user.

Staff Report at II-4. 

and foreign methods of loading blast furnace coke “gently.”

Notably absent from the record is any real evidence that directly supports the ITC’s

finding that the Subject Imports are superior in quality to the domestic like product. On the

contrary, there is at least some evidence provided in the Staff Report that the domestic like

product is superior in quality to the Subject Imports. According to the Staff Report:

U.S. producers and importers were asked if there are any

differences other than price between U.S.-produced blast furnace

coke and blast furnace coke produced in China and Japan that are

significant factors in their sales of blast furnace coke. According

to U.S. producers, the domestic blast furnace coke is superior to

imported blast furnace coke in terms of quality, but when foreign

prices are far below domestic prices, blast furnace operators are

reportedly willing to sacrifice some quality for the cheaper imports. 

Responding importers stated that domestic and imported coke

characteristics are different; however the integrated steel makers

reportedly need to import blast furnace coke because their demand

for blast furnace coke has consistently been much greater than the

available domestic supply.

Staff Report at II-4. Also, with respect to substitutability, the Staff Report indicates that “[t]he

degree of substitution between U.S.-produced and imported blast furnace coke depends upon

such factors as relative price, quality, and availability.”18 Id. Taking these factors into
COURT NO. 01-00826 PAGE 25

19 In its analysis of the fungibility of domestic and imported blast furnace coke, the

ITC found “a sufficient level of physical interchangeability between domestically produced and

imported blast furnace coke from China and Japan” for purposes of cumulation. Prelim.

Determination at 10. This court has held that fungibility plays an important role in the ITC’s

causation analysis. BIC, 21 CIT at 456, 964 F. Supp. at 400 (citing Gen. Mot. Corp. v. USITC,

17 CIT 697, 711–12, 827 F. Supp. 774, 787–88 (1993)) (“[T]he more fungible two products are

the more likely underselling by one will affect the price of the other.”). While the factors which

the ITC considered in deciding whether to cumulate the Subject Imports, i.e., fungibility,

geographic overlap, simultaneous presence in the market, and channels of distribution, are not

determinative of the attenuated competition finding, here they would appear to be relevant. 

consideration, the Staff Report concluded that “there is a high degree of substitution between

domestic and imported blast furnace coke.” Id.; cf. Steel Wire Rope, 26 CIT at __, 201 F. Supp.

2d at 1300 (“The Commission’s ‘attenuated’ competition finding was critical to the material

injury determination because the difference in product quality and mix, coupled with the low

substitutability of the subject imports with the domestic like product showed that the domestic

industry was not injured by the subject imports.” (emphasis added)). In addition, as noted by the

dissenting Commissioners, and as evidence on the record suggests, it would appear that the

interchangeability between the Subject Imports and the domestic like product is a critical factor

in the material injury and threat evaluations.19 See Dissenting Views of Commissioners Bragg

and Miller, Prelim. Determination at 27 n.1 (“Given that the record indicates that subject imports

and the domestic like product are interchangeable and recognizing an important issue raised

regarding the nature of competition between subject imports and the domestic like product, i.e.,

whether transportation costs limit U.S. merchant producers’ sales to nearby purchasers, we

believe that negative determinations at this preliminary stage would be premature. The record

does not, at this time, present information sufficient to support dispositive distinctions regarding

the industry’s performance, as reflected in the lack of purchaser input regarding the nature of
COURT NO. 01-00826 PAGE 26

competition between the domestic product and imported product, particularly in the sizable

merchant segment.”). 

Although the scope of judicial review of an ITC preliminary injury determination is a

narrow one, the ITC must nonetheless explain the reasons behind its determination. See Bowman

Transp., 419 U.S. at 285–86; Mot. Vehicle Mfrs. Ass’n, 463 U.S. at 43 (“[T]he agency must

examine the relevant data and articulate a satisfactory explanation for its action . . . .”). Here,

unlike in Steel Wire Rope, the ITC has not “detailed the reasons why the competition between the

subject imports and the domestic like product was ‘attenuated.’” Steel Wire Rope, 26 CIT at __,

201 F. Supp. 2d at 1299. Moreover, contrary to the ITC’s claim, the “clear and convincing”

standard, which the ITC has long applied as the measure of evidence required before it may issue

a negative determination, see Am. Lamb, 785 F.2d at 1001, is not met based on the evidence cited

in the Preliminary Determination. Thus, the ITC has failed to demonstrate that there is a

reasonable indication that the record on the whole contains “clear and convincing evidence that

there is no material injury or threat of such injury” to the domestic blast furnace coke industry,

and that “no likelihood exists that contrary evidence will arise in a final investigation.” See id. 

Where an agency has not articulated a rational connection between the facts found and the

choices made, remand is appropriate. See Burlington Truck Lines, 371 U.S. at 168; Altx, Inc. v.

United States, 25 CIT __, __, 167 F. Supp. 2d 1353, 1367–68 (2001) (quoting Bando Chem.

Indus., Ltd. v. United States, 16 CIT 133, 136, 787 F. Supp. 224, 227 (1992)). The ITC has not

adequately articulated its reasons for finding that competition between the Subject Imports and
COURT NO. 01-00826 PAGE 27

the domestic like product is attenuated—indeed, it is not clear from the Preliminary

Determination at what point competition becomes “attenuated”—nor does the evidence cited by

the ITC, with respect to its mode of transportation and delivery and product quality findings,

demonstrate that, in fact, direct competition does not exist. See Bowman Transp., 419 U.S. at

285–86 (court may not “supply a reasoned basis for the agency’s action that the agency itself has

not given.”); Altx, 26 CIT at __, Slip Op. 02-154 at 4 (“The court can only review the reasoning

that the Commission expresses.”). Thus, as there is no “rational connection between the facts

found and the choice[s] made,” the court must remand this matter to the ITC so that it may

explain this finding. Burlington Truck Lines, 371 U.S. at 168. 

Accordingly, on remand the ITC shall revisit its Preliminary Determination, and, should it

conclude that a negative determination continues to be warranted, revisit its conclusions with

respect to its attenuated competition finding and: (1) explain the methodology and standards

employed in reaching the conclusion that “to a great extent [Subject Imports] do not compete

with domestically produced blast furnace coke,” Prelim. Determination at 19; (2) state with

specificity the factors underlying its finding of attenuated competition; (3) state whether U.S.

purchasers of Subject Imports comprise a separate market and cite the record evidence to support

such conclusion, if any; (4) state with specificity any record evidence demonstrating that lower

costs resulting from waterborne transport of the Subject Imports created a separate market for the

Subject Imports; (5) state with specificity any record evidence demonstrating that it is “far more

economical” for Subject Imports to be delivered by waterborne transport when compared with

modes of transportation available to the domestic like product; (6) quantify the cost differences
COURT NO. 01-00826 PAGE 28

resulting from waterborne transport and delivery of the Subject Imports when compared with the

cost of transport of the domestic like product; (7) state the percentage of Subject Imports

unloaded directly from Panamax vessels and other oceangoing ships directly for use in the United

States; (8) state with specificity any record evidence demonstrating that the superior quality

resulting from waterborne transport or delivery of the Subject Imports created a separate market

for the Subject Imports; (9) examine the significance of the manner and frequency of handling of

the Subject Imports in its product quality analysis; (10) state with specificity any record evidence

demonstrating that the Subject Imports are superior in quality to the domestic like product and

specify in what way the Subject Imports are superior; (11) state with specificity any record

evidence demonstrating a preference on behalf of U.S. blast furnace coke consumers for the

Subject Imports based on product quality; and (12) state with specificity any record evidence that

the Subject Imports and the domestic like product are not fungible.

CONCLUSION

For the reasons set forth above, the court remands this matter to the ITC for further

proceedings in accordance with this opinion. Such remand results are due within ninety days of

the date of this opinion, comments are due thirty days thereafter, and replies to such comments

eleven days from their filing.

______________________________

 Richard K. Eaton

Dated: May 20, 2003

New York, New York