Mittal Steel Roman v. United States , 32 Ct. Int'l Trade 42 ( 2008 )

Slip Op. 08 - 3
UNITED STATES COURT OF INTERNATIONAL TRADE
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MITTAL STEEL ROMAN and SC SILCOTUB :
S.A.,
:
Plaintiffs,
:
v.
:
THE UNITED STATES OF AMERICA,
: Consolidated
Defendant, Court No. 06-00173
:
-and-
:
UNITED STATES STEEL CORPORATION,
:
Intervenor-Defendant.
:
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Memorandum & Order
[Final sunset-review determination of U.S. Interna-
tional Trade Commission affirmed; action dismissed.]
Decided: January 11, 2008
Arent Fox LLP (John M. Gurley, Nancy A. Noonan and Diana
Dimitriuk-Quaia) for the plaintiffs.
James M. Lyons, General Counsel, Andrea C. Casson,
Assistant General Counsel for Litigation, and Rhonda M. Hughes,
U.S. International Trade Commission, for the defendant.
Skadden, Arps, Slate, Meagher & Flom LLP (Robert E.
Lighthizer, John J. Mangan, James C. Hecht and Stephen P.
Vaughn) for the intervenor-defendant.
AQUILINO, Senior Judge: This action consolidates com-
plaints filed on behalf of the above-encaptioned plaintiff
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Romanian enterprises. Each contests the final determination of
a five-year review conducted by the U.S. International Trade
Commission (“ITC”) pursuant to 19 U.S.C. §1675(c) that
revocation of the antidumping-duty order on small diameter
carbon and alloy seamless standard, line, and pressure pipe
(“CASSLP”) from their country of origin would be likely to lead
to continuation or recurrence of material injury to an industry
in the United States within a reasonably foreseeable time. See
USITC Pub. 3850, p. 1 (April 2006)1.
I
This determination was by operation of the law when
three commissioners were counted in its favor and an equal
number in the negative. See 19 U.S.C. §1677(11). Of the six
commissioners, four exercised their discretion not to cumulate
imports from Romania with imports from the Czech Republic,
Japan, and South Africa, the other countries under review. Of
those four, only one made an affirmative determination as to
Romania. The other two in favor were by commissioners who
1
Referred to hereinafter as ITC record document (“R.Doc”)
231.
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cumulated imports from Romania with all of the other countries
subject to the review, including the Czech Republic and South
Africa.
The plaintiffs contend that those two commissioners
erred as a matter of law when they based their
decision to maintain the order on Romania (and all of
the subject countries) using cumulated data . . ..
The Commission determined not to cumulate imports from
Romania with any other subject country, as reflected
by the decision of four of the Commissioners.
Accordingly, [those two commissioners] should have
made their injury determination on the same, un-
cumulated basis.
Plaintiffs’ Memorandum, p. 5. Additionally, they claim that
Commissioner Aranoff’s determination that revocation of the
antidumping-duty order on CASSLP from Romania would be likely to
lead to continuation or recurrence of material injury to the
domestic industry is not supported by substantial evidence on
the record. See id. at 6. This contention relies upon the
three commissioners counted in the negative, as well as upon
perceived internal inconsistencies in the Aranoff determination
itself.2
2
Given the quality of plaintiffs’ written submissions, as
well as those in opposition, plaintiffs’ motion for oral
argument can be, and it hereby is, denied.
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A
The ITC is required to make a final determination of
whether a domestic industry is materially injured, or is
threatened with material injury, by reason of imports, or sales
(or likelihood of sales) for importation. 19 U.S.C.
§1673d(b)(1). Generally, five years after the date of
publication of an affirmative determination and subsequent
imposition of an antidumping-duty order, the Commission conducts
a review to determine whether revocation of such order would be
likely to lead to continuation or recurrence of dumping and
material injury. See 19 U.S.C. §1675(c)(1). In conducting such
a review, the ITC is required to take into account:
(A) its prior injury determinations, including
the volume, price effect, and impact of imports of the
subject merchandise on the industry before the order
was issued . . .,
(B) whether any improvement in the state of the
industry is related to the order . . .,
(C) whether the industry is vulnerable to
material injury if the order is revoked . . ., and
(D) in an antidumping proceeding under section
1675(c) . . ., the findings of the administering
authority regarding duty absorption under section
1675(a)(4) . . ..
19 U.S.C. §1675a(a)(1). Additionally,
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the Commission may cumulatively assess the volume and
effect of imports of the subject merchandise from all
countries with respect to which . . . [5-year reviews]
were initiated on the same day, if such imports would
be likely to compete with each other and with domestic
like products in the United States market.
19 U.S.C. §1675a(a)(7).
This court has exclusive jurisdiction over an action
commenced to contest a resulting “sunset review” determination.
28 U.S.C. §1581(c). And it shall hold unlawful any
determination, finding, or conclusion unsupported by substantial
evidence on the record, or otherwise not in accordance with law.
19 U.S.C. §1516a(b)(1)(B)(i). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Nippon Steel Corp. v. United States,
337 F.3d 1373, 1379 (Fed.Cir. 2003), quoting Consol. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938). In addition, the underlying
determination must show that the agency has “examine[d] the
relevant data and articulate[d] a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(internal
quotation marks deleted).
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Even if the court could draw “two inconsistent
conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). That is,
determinations can be affirmed so long as they are reasonable
and supported by the record as a whole, even if there is some
evidence that detracts from the agency’s conclusions. E.g.,
Olympia Indus., Inc. v. United States, 22 CIT 387, 389, 7
F.Supp.2d 997, 1000 (1998), citing Atlantic Sugar, Ltd. v.
United States, 744 F.2d 1556, 1563 (Fed.Cir. 1984).
B
The plaintiffs contend that “the Commission’s
affirmative decision as to Romania was an error as a matter of
law because it did not reflect the actual decision of the
Commission”, and, additionally, it is “unsupported by
substantial evidence on the record because it was based in part
on cumulated data, which included data from countries for which
the Commission made negative determinations.” Plaintiffs’
Memorandum, pp. 10-11. This position derives from plaintiffs’
reading of 19 U.S.C. §1675a(a)(7), supra, that the “decision on
cumulation is the decision of the ‘Commission’”. Id. at 12.
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They argue that, because a majority of the commissioners, and
thus the ITC as a whole, made a negative determination as to the
Czech Republic and South Africa, and the determination of
Commissioners Koplan and Lane with regard to Romania included
cumulated data from those other two countries,
the Commission failed to act in accordance with law
when it robotically tallied the votes and made an
affirmative determination as to Romania without
reviewing the contradictions between the individual
Commissioner’s decisions.
Id. at 16.
C
In accordance with 19 U.S.C. §1675a(a)(7), supra, the
record reflects findings that all reviews were initiated on May
2, 20053 and
that the subject imports of small diameter CASSLP . . .
from the Czech Republic, Japan, Romania, and South
Africa are fungible with each other and with the
domestic like product, that there will likely be a
reasonable overlap of geographic markets and channels
of distribution if the orders are revoked, and that
the subject imports would be simultaneously present.
R.Doc 231 at 14. Also, considering each group of subject
imports, there was no finding that those imports from the Czech
3
See R.Doc 231 at 9.
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Republic, Japan, Romania, and South Africa would likely have no
discernible adverse impact on the domestic industry if the
antidumping-duty order were revoked. See id. at 10-13. Hence,
there was discretion to exercise the authority to cumulate the
subject imports during the instant review.4
Ugine-Savoie Imphy v. United States, 26 CIT 851, 248
F.Supp.2d 1208 (2002), dealt with facts similar to those
presented here. In that matter, five commissioners found that
they had discretion to cumulate. However, as in the action at
bar, a majority declined to cumulate imports from France, the
imports at issue in that action, with imports from Brazil and
India. Commissioner Bragg, on the other hand, did cumulate
Brazilian, French, and Indian imports for purposes of the review
and became one of the three tie votes not to revoke the
antidumping-duty order. The plaintiffs in Ugine argued that the
commissioner abused her discretion because, by cumulating,
France was unfairly penalized for the failure of Brazil and
India to participate in the sunset review.
4
See R.Doc 231 at pages 15 through 18 for discussion of
other considerations that led four of the commissioners to
decline to exercise their discretion to cumulate subject imports
from Romania with the Czech Republic, Japan, and South Africa.
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The plaintiffs at bar attempt to distinguish Ugine,
contending that in that action,
since the determination by Commissioners Miller and
Hillman[] was that revocation of the orders from
France, individually, and India/Brazil, cumulated,
would cause a continuation or recurrence of material
injury to the domestic industry, Commissioner Bragg’s
decision that those countries’ imports would,
cumulatively, also cause a continuation or recurrence
of material injury to the domestic industry, was
consistent.
Plaintiffs’ Memorandum, p. 14. While this point is well-taken,
the court’s opinion in Ugine is clear and not so limiting as to
be inapplicable in the facts presented herein, to wit:
. . . Commissioner Bragg did not abuse her discretion
by cumulating imports . . . because the requirements
of § 1675a(a)(7) were met. There is no exception for
cumulation in the statute based on non-participation
in the sunset reviews. There is an express exception
to cumulation under the adverse impact provision, and
the Court declines to create an implied exception for
non-participation when Congress clearly delineated the
exceptions it intended under the Statute.
26 CIT at 866-67, 248 F.Supp.2d at 1223.
The Court of Appeals for the Federal Circuit (“CAFC”)
addressed similar circumstances in Corus Group PLC v. Int’l
Trade Comm’n, 352 F.3d 1351 (2003). In that case, the domestic
industries in the underlying agency determination were defined
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by four of the six commissioners as tin-mill products and,
separately, certain carbon flat-rolled steel. Three of them
made a negative injury determination with regard to the tin-
mill-product imports, while the fourth reached the opposite
result. The remaining two commissioners defined the domestic
industry as one industry, encompassing both tin-mill products
and flat-rolled steel, and both made affirmative injury
determinations. Thus, the “Commission reported that it was
evenly divided as to whether increased importation of tin mill
products caused serious injury.” 352 F.3d at 1355. The
appellants contended before the CAFC that the votes of those
commissioners who did not analyze tin-mill products as a
separate category could not be counted in the affirmative and
that the Commission’s vote should properly have been reported as
a 3-1 determination of no serious injury. See id. at 1360.
The CAFC found “no merit to this argument.” Id. It
noted that those two commissioners “specifically voted
affirmatively with regard to tin mill products[, and that] . . .
neither commissioner objected when the Commission tallied their
votes as affirmative”. Id. at 1360-61. Additionally, the CAFC
went on to state that, having
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reached this conclusion, we are not “compelled . . .
to probe the mental processes” of the commissioners
any further to determine whether their votes were
properly counted as affirmative despite those
commissioners’ different underlying reasoning. Voss
[Int’l Corp. v. United States, 67 CCPA 96, 102], 628
F.2d [1328,] 1332 [(1980)] (holding that the
Commission properly recorded a non-voting
commissioner’s vote as an abstention rather than as a
dissent); cf. Pub. Serv. Comm’n v. Fed. Power Comm’n,
543 F.2d 757, 777 (D.C.Cir.1974)(holding that “in each
instance, what counted in the definition of agency
action was the vote rather than the individual view”
of each member of the Federal Power Commission).
Accordingly, the Commission did not err in counting
the votes as to tin mill products as a 3-3 tie.
Id. at 1361. Again, although the specific facts differ herein,
Corus Group cannot be discounted.
In U.S. Steel Group v. United States, 96 F.3d 1352,
1359-62 (Fed.Cir. 1996), domestic steel producers challenged the
ITC’s negative injury determinations. In that case, two
commissioners engaged in one-step analysis, others took a two-
step approach, and one commissioner did not specify his type of
analysis. The domestic producers contended that “there should
be a single methodology, applicable to each of the
commissioners, for determining whether a domestic industry is
injured”. 96 F.3d at 1361. The CAFC opined, however, that the
“statute on its face compels no such uniform methodology” and
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went on to make clear that the
invitation to employ such diversity in methodologies
is inherent in the statutes themselves, given the
variety of the considerations to be undertaken and the
lack of any Congressionally mandated procedure or
methodology for assessment of the statutory tests.
This court has no independent authority to tell
the Commission how to do its job. We can only direct
the Commission to follow the dictates of its statutory
mandate. So long as the Commission’s analysis does
not violate any statute and is not otherwise arbitrary
and capricious, the Commission may perform its duties
in the way it believes most suitable.
Id. at 1362. In the light of this reasoning, this court cannot
and therefore does not conclude that the exercise of discretion
to cumulate per 19 U.S.C. §1675a(a)(7) by Commissioners Koplan
and Lane was not in accordance with law, and therefore the
findings based on the cumulated data are not unsupported by
substantial evidence on the record.
D
The plaintiffs contend that Commissioner Aranoff’s
decision on the
volume, price effects, and impact of imports from
Romania on the domestic industry is not supported by
substantial evidence on the record, particularly in
view of the lack of vulnerability of the domestic
industry.
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Plaintiffs’ Memorandum, p. 2. They offer two arguments to
support their position: first, the commissioner’s findings are
contradicted by those of Commissioners Okun, Hillman and
Pearson. Secondly, they contend that her findings contain
internal inconsistencies that render her volume, price-effect,
and likely-impact determinations unsupported by substantial
evidence on the record.5
(1)
The plaintiffs state that Commissioner Aranoff
found that the likely volume of imports of pipe from
Romania would be significant if the order was revoked.
. . . The dissenting views of Commissioners Okun,
Hillman, and Pearson explicitly lay out the
substantial evidence on the record that discredits
[this] conclusion.
Id. at 20 (citations omitted); that she
found that “the subject imports from Romania . . .
would be likely to have significant depressing or
suppressing effects on the prices of the domestic like
product in the reasonably foreseeable future if the
5
See Plaintiffs’ Memorandum, pp. 20-28. Additionally, the
plaintiffs request that, “[i]n the event of a remand . . . the
Court should also instruct the Commission to reconsider this
decision based on the entry of Romania into the European Union”.
Id. at 18. But this request is not of consequence given the
discussion hereinafter.
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antidumping order were revoked.” . . . [Yet a]s
explained by Commissioners Okun, Hillman, and Pearson,
in these reviews, subject imports from Romania
undersold domestic product in every available
price comparison. Notwithstanding the consistent
underselling by subject imports from Romania,
U.S. prices have increased over the period of
review. . . . Nor has the underselling by subject
imports from Romania had any price suppressing
effect.
Id. at 24 (citation omitted); and that Commissioner Aranoff’s
decision that revocation of the antidumping duty order
on small diameter CASSLP . . . from Romania would
negatively impact the domestic industry was
unsupported by substantial evidence on the record,
particularly in view of the lack of vulnerability of
the domestic industry. . . . [Whereas] Commissioners
Okun, Hillman, and Pearson [] explained:
In line with our findings regarding the likely
volume and price effects of subject imports from
Romania, we find that subject imports would not
be likely to have a significant adverse impact on
the domestic industry’s output, sales, market
share, profits, or return on investment, if the
order were revoked. As demand is projected to
remain strong, the small volume of subject
imports that would be likely upon revocation
would not be likely to have a significant adverse
impact on the domestic industry.
Id. at 26-27.
Even accepting these assertions does not necessarily
govern consideration of whether another commissioner’s
determination is unsupported by substantial evidence on the
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record. In U.S. Steel Group v. United States, for example, the
CAFC confirmed the
indisputable proposition that each commissioner is
free to attach different weight to factual information
bearing on, and determinate of, the many statutory
tests; and that commissioners may ultimately reach
different factual conclusions on the same record.
96 F.3d at 1362. And in Metallverken Nederland B.V. v. United
States, 13 CIT 1013, 728 F.Supp. 730 (1989), where the court was
urged to “negate a commissioner’s determination based upon the
findings of the dissenting commissioners,” it responded that
Congress’ expectation that commissioners would file
concurring and dissenting opinions stating their
findings of fact and conclusions of law “would be
pointless if the existence of differing views
precluded courts from sustaining Commission
determinations.”
13 CIT at 1017, 728 F.Supp. at 734, quoting Citrosuco Paulista,
S.A. v. United States, 12 CIT 1196, 1210-11, 704 F.Supp. 1075,
1089 (1988). See also Matsushita Elec. Indus. Co. v. United
States, 750 F.2d 927, 936 (Fed.Cir. 1984)(evidence of record
which detracts from evidence supporting ITC’s decision is
neither surprising nor persuasive).
Given the agency record at bar, in the light of the
foregoing caselaw, this court cannot set aside Commissioner
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Aranoff’s determination merely because other commissioners
developed different views thereof.
(2)
In a five-year review, the ITC must determine whether
revocation of an antidumping-duty order “would be likely to lead
to continuation or recurrence of material injury within a
reasonably foreseeable time.” 19 U.S.C. §1675a(a)(1). Under
this standard, the agency
must decide the likely impact in the reasonably
foreseeable future of an important change in the
status quo -- the revocation or termination of a
proceeding and the elimination of its restraining
effects on volumes and prices of imports.
Uruguay Round Agreements Act Statement of Administrative Action,
H.R. Rep. No. 103-316, vol. 1, p. 884. Commissioner Aranoff
considered the likely volume, price effect, and impact of
imports of the subject merchandise on the industry if the orders
were revoked or the suspended investigation terminated and
determined that,
based on evidence on the record, [] producers in
Romania will ship significant volumes of small
diameter CASSLLP . . . into the U.S. market if the
antidumping duty order is revoked. Accordingly, . . .
the likely volume of imports of small diameter CASSLP
. . . from Romania into the United States would be
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significant in the reasonably foreseeable future if
the antidumping duty order were revoked.
R.Doc 231 at 66; and, with regard to price effect, that, as the
likely volume will be significant in that reasonably foreseeable
future, the
subject imports from Romania would be likely to have
significant depressing or suppressing effects on the
prices of the domestic like product in the reasonably
foreseeable future if the antidumping duty order were
revoked.
Id. at 68; and, with regard to the likely impact of those
imports, that,
although demand is projected to remain strong, the
likely substantial volume and price effects of the
subject imports from Romania would be sufficient to
have a significant negative impact on the production,
shipments, sales, market share, employment, and
revenues of the domestic industry, despite its lack of
vulnerability. This reduction in the industry’s
production, shipments, sales, market share, and
revenues would adversely affect the industry’s
profitability and ability to raise capital and
maintain necessary capital investments.
Id. at 69.
The plaintiffs are of the view that “portions of the
Commissioner’s determination are unsupported by substantial
evidence on the record.” Plaintiffs’ Memorandum, p. 20. They
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claim it contains “flaws” and accordingly pray that the court
remand
with instructions to provide specific cites to record
evidence regarding Commissioner Aranoff’s findings on
likely volume, price effect, and impact on the
domestic industry in the event that the subject order
is revoked, and if that is not possible, to enter a
negative determination for Romania[.]
Id. at 29.
(a)
The plaintiffs posit “internal inconsistencies” that
render the commissioner’s volume determination unsupported by
substantial evidence on the record. Id. at 21. Specifically,
they question her consideration of historical data and her
finding with regard to the duration of higher prices in western
Europe and Japan. They argue that the focus on such data
ignores her prior acknowledgement that Silcotub was
only purchased by the Tenaris Group in 2004, and the
testimony of Silcotub’s representatives that
Silcotub’s production is being refocused toward
higher-value-added non-subject merchandise, as well as
making significant marketing changes.
Id. But 19 U.S.C. §1675a(a)(1)(A) calls for commissioners to
take into account the “impact of imports of the subject
merchandise on the industry before the order was issued”, and
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the plaintiffs acknowledge that there are no historical data yet
for that company’s purported new production and marketing
strategy.
Ergo, Commissioner Aranoff’s consideration of such
data, while acknowledging Silcotub’s announced strategic change,
was part of her statutory mandate.
The plaintiffs take issue with the commissioner’s
conclusion that higher prices for CASSLP in western Europe and
Japan will not provide an incentive for Romanian producers to
continue to serve those markets rather than the United States
and also with her discussion of other evidence on the record.
See id. at 22. But she concluded that there was “no evidence to
suggest European or Asian prices are likely to stay above U.S.
prices for the reasonably foreseeable future”, R.Doc 231 at 65,
which appears to be reasonable, considering that prices for
subject pipe had only “recently been higher in western Europe
and parts of Asia,” and “the price differences between U.S. and
western European markets narrowed . . . during 2005.” Id. Cf.
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 211 (1997) (if
the determination is reasonable and supported by substantial
evidence on the record, summary judgment is appropriate
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regardless of whether the evidence is in conflict); Metallverken
Nederland B.V. v. United States, 13 CIT at 1017, 728 F.Supp. at
734 (1989).
(b)
The plaintiffs contest Commissioner Aranoff’s view
that
the subject imports from Romania would be likely to
have significant depressing or suppressing effects on
the prices of the domestic like product in the
reasonably foreseeable future if the antidumping duty
order were revoked[,]
R.Doc 231 at 68, claiming it is unsupported by substantial
evidence on the record. Plaintiffs’ Memorandum, p. 24. They
purport to view the evidence on the record as showing that U.S.
prices increased during the period of review, even with the
underselling of the Romanian imports at issue, and claim this
circumstance should negate the commissioner’s finding.
Although finding that “Romanian imports, which have
been underselling domestic merchandise during the period of
review, are not currently having price depressing or suppressing
effects”, the commissioner also noted that
improvements in the condition of the U.S. industry are
to be expected following the imposition of an
antidumping order, . . . [which] can be evidence of
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the effectiveness of the discipline imposed by an
order. Notwithstanding the discipline imposed by the
order . . ., those imports continued to undersell the
U.S. product by significant margins.[] There is no
evidence to suggest that such underselling would not
continue in the event of revocation of the antidumping
duty order.
R.Doc 231 at 67 (footnote omitted). Hence, she concludes that
the subject imports are likely to have such an effect if the
antidumping-duty order were revoked, given “these likely volumes
and likely levels of underselling”. Id.On its face, this is clear reasoning by the
commissioner, based upon substantial evidence, with regard to
the price effects of subject Romanian imports if the
antidumping-duty order were to be revoked. Cf. Acciai Speciali
Terni, S.P.A. v. United States, 19 CIT 1051, 1061
(1995)(“Pricing changes may be delayed or may occur in part due
to other factors”).
(c)
The plaintiffs assert that Commissioner Aranoff’s view
that revocation of the antidumping-duty order on CASSLP from
Romania would negatively impact the domestic industry is
unsupported by substantial evidence on the record in light of
her finding that “the domestic industry is not currently
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vulnerable to injury by reason of increased subject imports.”
This is based in particular upon consideration that
the industry did not experience any financial losses
during the period of review. Rather, the domestic
industry was profitable in every year of the period of
review and profits increased to very high levels.
Plaintiffs’ Memorandum, p. 26, quoting R.Doc 231 at 26 and
referring to the separate views of Commissioner Aranoff, id. at
68 (“I join the Views of the Commission regarding the discussion
of the domestic industry’s lack of vulnerability”).
But Commissioner Aranoff cites the following evidence
on the record in support of her ultimate determination that the
revocation of the antidumping-duty order would negatively impact
the domestic industry, to wit:
[D]omestic producers’ . . . capacity significantly
increased over the period of review.[] Production fol-
lowed the same trend.[] However, capacity utilization
decreased over the period, albeit only slightly.[]
U.S. shipments increased over the period of
review[] and inventories declined.[] Net sales in-
creased over the period.[] U.S. producers’ market
share decreased from 2000 to 2004,[] as nonsubject
imports gained market share.[] However, domestic pro-
ducers’ market share increased during the interim 2005
period, as compared with the interim 2004 period.[]
The number of production and related workers fell
over the period,[] as did their hours worked.[]
However, wages paid increased,[] as did productivity.[]
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Both capital expenditures[] and research and
development expenses declined.[]
I concluded above that revocation of the
antidumping duty order with respect to Romania likely
would lead to significant volumes of subject imports
that would undersell the domestic like product and
significantly depress or suppress U.S. prices. In
addition, although demand is projected to remain
strong, the likely substantial volume and price
effects of the subject imports from Romania would be
sufficient to have a significant negative impact on
the production, shipments, sales, market share,
employment, and revenues of the domestic industry,
despite its lack of vulnerability. This reduction in
the industry’s production, shipments, sales, market
share, and revenues would adversely affect the
industry’s profitability and ability to raise capital
and maintain necessary capital investments.6
R.Doc 231 at 68-69 (footnotes to supporting evidence on the
record omitted).
6
Plaintiffs’ memorandum, pages 27-28, criticizes the final
two sentences of this quotation as “conclusory . . . statements
[that] do not meet the Court’s substantial evidence standard
because they do not constitute cites to substantial evidence on
the record.” They refer to Nippon Steel Corp. v. United States,
29 CIT ___, 391 F.Supp.2d 1258 (2005)(“Nippon V”), wherein the
court reviewed a second remand determination in which, according
to the plaintiffs, the ITC made “similar conclusory statements”.
In Nippon V, the court found a lack of “substantial evidence to
support [the Commission’s] conclusion” and remanded the matter
yet again. However, Nippon Steel Corp. v. United States, 494
F.3d 1371, 1381 (Fed.Cir. 2007), a reversal of that opinion, has
since issued, holding that the CIT “erred in concluding that the
Commission’s decision in the Second Remand Determination was not
supported by substantial evidence”.
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Judicial review of a matter like this has led to
recognition that there is
no inconsistency between the requirement that the
factors indicating present injury be considered when
examining threat and Congress’ statement that the
absence of any indicia of present injury should not be
considered conclusive that threat of injury does not
exist.
E.g., Rhone Poulenc, S.A. v. United States, 8 CIT 47, 52, 592
F.Supp. 1318, 1323-24 (1984). Therefore, the commissioner’s
acceptance that the domestic U.S. industry is not currently
vulnerable does not, in itself, mandate reconsideration. A
reviewing court must still find that the administrative record
possesses substantial evidence in support of a point of view
arguably inconsistent with this factor. The court finds that to
be this case specifically at bar.
II
In view of the foregoing, plaintiffs’ motion for
judgment on the agency record must be denied and this action
dismissed.
Decided: New York, New York
January 11, 2008
/s/ Thomas J. Aquilino, Jr.
Senior Judge