182 F.Supp.2d 1330 (CIT. 2001), 00-09-00479, Nippon Steel Corp. v. United States

Docket Nº:Court No. 00-09-00479.
Citation:182 F.Supp.2d 1330
Party Name:NIPPON STEEL CORPORATION, NKK Corporation, Kawasaki Steel Corporation and Toyo Kohan Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, Weirton Steel Corporation, Defendant-Intervenor. Slip Op. 01-154.
Case Date:December 31, 2001
Court:Court of International Trade

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182 F.Supp.2d 1330 (CIT. 2001)

NIPPON STEEL CORPORATION, NKK Corporation, Kawasaki Steel Corporation


Toyo Kohan Co., Ltd., Plaintiffs,



Weirton Steel Corporation, Defendant-Intervenor.

Slip Op. 01-154.

Court No. 00-09-00479.

United States Court of International Trade.

Dec. 31, 2001

Page 1331

Willkie Farr & Gallagher (William H. Barringer; James P. Durling; Daniel L. Porter; Sean M. Thornton; Karl von Shriltz, Washington, DC) for plaintiffs.

Lyn M. Schlitt, Office of General Counsel, James M. Lyons, Deputy General Counsel, U.S. International Trade Commission (Laurent deWinter, Washington, DC), for defendant.

Schagrin Associates (Roger B. Schagrin, Washington, DC), for defendant-intervenor.



[ITC injury determination remanded.]

Nippon Steel Corporation, NKK Corporation, Kawasaki Steel Corporation, and Toyo Kohan Co., Ltd., (collectively "Nippon" or "Plaintiffs"), respondents in the underlying investigation, move for judgment upon the agency record pursuant to USCIT Rule 56.2. At issue is the final determination of the International Trade Commission (the "Commission") in Tin and Chromium-Coated Steel Sheet From Japan, 65 Fed.Reg. 50005, USITC Pub. 3300, Inv. No. 731-TA-860 (final determ.) (Aug.2000) (hereinafter "Final Determination"). Nippon first contests the Commission's final affirmative material injury determination in the Tin and Chromium-Coated Steel Sheet (TCCSS) investigation on the grounds that political interference with the Commission's deliberations violated Plaintiff's right to procedural due process. Second, Nippon challenges the Commission's use of aggregated data in making its injury determination, and contends that its findings with respect to the effects of subject import volume and prices are not supported by substantial evidence. Third, Nippon argues that the Commission did not adequately assess alternative causes of material injury.


The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994). The court will uphold the Commission's determination in antidumping investigations unless it is "unsupported by substantial evidence in the administrative record or is otherwise not in accordance with law." 19 U.S.C. § 1516(a)(2)(B)(i).


The Commission initiated an antidumping investigation of TCCSS imports 1 pursuant

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to a petition filed in November 1999 by Weirton Steel Corporation ("Weirton") and two labor unions. None of the other six U.S. producers of TCCSS joined the petition, but all participated in the investigation. 2 See Final Staff Report at III-1, C.R. Doc. 145, App. Tab 1. The Commission held a hearing on November 18, 1999, at which it heard testimony from the parties and industry representatives. Prelim. Hr'g Tr. at 72-83, 87-98, P.R. Doc. 18, App. Tab 3.

In December 1999, the Commission issued an affirmative preliminary determination of material injury. See Tin and Chromium-Coated Steel Sheet From Japan, 64 Fed.Reg. 71497, USITC Pub. 3264, Inv. No. 731-TA-860 (Dec.1999) at 13-14 (Preliminary Determination). On June 29, 2000, the Commission held a public hearing at which four of the largest TCCSS purchasers in the U.S. market testified, as did seven Members of Congress, including U.S. Senator John D. Rockefeller IV. Tin and Chromium-Coated Steel Sheet from Japan: Hearings before the United States International Trade Commission 44-54 (June 29, 2000) (hereinafter "Hr'g Tr."). In June 2000, the Department of Commerce issued final antidumping duty margins as follows: 95.29 percent for Kawasaki, 95.29 percent for Nippon, 95.29 percent for Toyo Kohan and 32.52 percent for all others. See 65 Fed.Reg. 39,364 (Dep't Comm. June 26, 2000).

In August 2000, the Commission, in a 4-2 vote, determined that Japanese imports of TCCSS were being sold at less than fair value ("LTFV") and, as a result, were both materially injuring and threatening further material injury to an industry in the United States. See Final Determination at 1. In evaluating the relevant factors, the Commission first concluded that Japanese import prices "depressed and suppressed domestic [producers'] prices to a significant degree." Id. at 27. This conclusion rested principally on several factual findings regarding, inter alia, (1) the existence of "underselling" by Japanese suppliers; (2) the industry practice of establishing prices via negotiations for annual requirements contracts; (3) the relative importance of non-price factors; and (4) allegations of lost sales and lost revenue because of subject imports. Second, the Commission concluded that the volume of subject imports grew rapidly over the period of investigations. Id. at 12. Finally, the Commission concluded that the domestic industry's financial performance was poor throughout the period of investigation, with the worst results coinciding with the largest increase in imports during the first three quarters of 1999. Id. at 25.

Nippon appeals the Commission's final determination of material injury, claiming that Senator Rockefeller's testimony appeared to and did impermissibly influence the Commission's final determination. Nippon also contests the Commission's findings with respect to volume, price effects, and overall causation of injury.


I. Congressional Interference

During the final phase of the investigation, Senator Rockefeller testified before

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the ITC Commissioners at a public hearing on June 29, 2000. After expressing his view on the state of the domestic industry, Senator Rockefeller related his perceptions regarding the legislative intent behind the addition of the requirement that the Commission analyze "conditions of competition" under 19 U.S.C. § 1677(7)(C). Senator Rockefeller stated:

From what I understand, what is occurring here at the Commission is that lawyers and economists representing foreign competition or U.S. buyers, who can't argue about the numbers that your staff has gathered, are spending their time before the Commission arguing about conditions of competition and taking the focus away from the statute, which is called the law insofar as I'm aware. I find this deeply disturbing, and I hope, perhaps vainly, that the Commission will seriously reconsider the matter. There should be no need for Congressional action.

Hr'g Tr. at 50-51, P.R. Doc. 74, App. Tab 4. Nippon claims that Senator Rockefeller's reference to "Congressional action" constituted an impermissible "threat" to reduce Congressional appropriations to a subdivision of the ITC. Nippon argues that its due process rights were violated because this alleged threat not only had the fatal appearance of partiality but also actually interfered with the ITC's decision-making process. 3

Antidumping proceedings are not adjudicatory but investigatory. 4 See NEC Corp. v. United States, 978 F.Supp. 314, 21 CIT 933, 948-49 (1997) (citing H.R.Rep. No. 96-317, at 77 (1979); S.Rep. No. 96-249, at 100 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 486, and Budd Co. v. United States, 1 CIT 67, 72, 507 F.Supp. 997, 1001 (1980)), aff'd, 151 F.3d 1361 (1998). The test for improper interference in an administrative proceeding that is neither judicial nor quasi-judicial is "whether the Congressional action actually affected the decision." Peter Kiewit Sons' Co. v. U.S. Army Corps. of Engineers, 714 F.2d 163, 169 (D.C.Cir.1983)

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(citing D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1246-47 (D.C.Cir.1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972)). Thus, Nippon's assertion that Senator Rockefeller's statement gives the "appearance of impropriety" misstates the applicable standard.

Even if a more stringent standard applies, Nippon's claim fails. First, there is no prohibition against Members of Congress testifying at public hearings before the Commission. 5 Second, the Senator's statement that "there should be no need for Congressional action" does not appear to be a "threat" to reduce appropriations to the Commission or any subdivision thereof. Senator Rockefeller is not on the appropriations committee and there is no evidence that he was behind the proposal to reduce appropriations for the Office of Economics at the International Trade Commission. Indeed, the context of Senator Rockefeller's comment strongly suggests that he was indicating his view that it should be unnecessary for Congress to have to revise the statute. His testimony centers on his perception that the Commission was misinterpreting the purpose of the statutory requirement that the Commission evaluate "conditions of competition." 6 Irrespective of whether Senator Rockefeller's interpretation of the statutory mandate to analyze "conditions of competition" is accurate, the Commission is presumed to apply the law properly. NEC Corp. v. U.S., 151 F.3d 1361, at 1372(Fed.Cir. 1998) (quoting Parsons v. United States, 229 Ct.Cl. 335, 670 F.2d 164, 166 (1982)) ("It is well established that there is a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations, and the burden is on the Plaintiff to prove otherwise."). Third, there is nothing in the record to support a finding that Senator Rockefeller's testimony affected the Commission's decision-making at all. The Commission's determination is considered and replete with citation to and analysis of the factual findings in the Staff Report. Accordingly, Nippon fails to establish that Senator Rockefeller's testimony improperly affected the Commission's decision, or that it gives an appearance of partiality by the Commission.

II. Material Injury

To determine whether the...

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