Usinor, Beautor, Haironville v. U.S.

• Decision Date: 09 June 2004
• Docket Number: Court No. 01-00010.,SLIP OP. 04-65.
• Citation: 342 F.Supp.2d 1267
• Parties: USINOR, BEAUTOR, HAIRONVILLE, SOLLAC ATLANTIQUE, SOLLAC LORRAINE, and Usinor Steel Corp., Plaintiffs, v. UNITED STATES, Defendant, and Bethlehem Steel Corp., Ispat Inland, Inc., LTV Steel Co., National Steel Corp., and U.S. Steel Group, a unit of USX Corp., Defendant-Intervenors.
• Court: U.S. Court of International Trade

342 F.Supp.2d 1267

USINOR, BEAUTOR, HAIRONVILLE, SOLLAC ATLANTIQUE, SOLLAC LORRAINE, and Usinor Steel Corp., Plaintiffs, v. UNITED STATES, Defendant, and Bethlehem Steel Corp., Ispat Inland, Inc., LTV Steel Co., National Steel Corp., and U.S. Steel Group, a unit of USX Corp., Defendant-Intervenors.

SLIP OP. 04-65.

Court No. 01-00010.

United States Court of International Trade.

June 9, 2004.

Shearman & Sterling, Washington, DC (Thomas Bernard Wilner, Chris Ryan), for Plaintiffs Usinor, Beautor, Haironville, Sollac, Atlantique, Sollac Lorraine, and Usinor Steel Corp.

Sharretts, Paley, Carter & Blauvelt, P.C., (Gail T. Cumins), for Plaintiffs Thyssen Krupp Stahl AG, Stahlwerke, Bremen GmbH, EKO Stahl GmbH, and Salzgitter AG.

Charles Alfred St. Charles, Mary Jane Alves, Gracemary R. Roth-Roffy, Office of the General Counsel, U.S. International Trade Commission, Washington, D.C., for Defendant.

Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC (Stephen P. Vaughn), for Defendant-Intervenors.

OPINION

WALLACH, Judge.

I INTRODUCTION

Plaintiffs Usinor, Beautor, Haironville, Sollac Atlantique, Sollac Lorraine, and U.S. importer Usinor Steel Corporation (collectively "French Producers");¹ Plaintiffs Thyssen Krupp Stahl AG, EKO Stahl GmbH, Stahwerke Bremen GmbH, and Salzgitter (collectively "German Producers"); Defendant-Intervenors² Bethlehem Steel Corp., Ispat Inland, Inc., LTV Steel Company, Inc., National Steel Corporation, and U.S. Steel Group, filed comments on the United States International Trade Commission's (hereafter "Commission" or "ITC") Remand Determination of September 17, 2002 ("Remand Determination"), on the final determination in the five-year administrative review ("Sunset Review") of antidumping and countervailing duty orders on corrosion resistant steel products ("CRCS") from France and Germany. The Remand Determination was completed under this court's ruling in Usinor v. United States, Slip Op.2002-70, 2002 WL 1998315, 2002 Ct. Int'l Trade LEXIS 98 (July 19, 2002) ("Usinor I"). Plaintiffs contest the Commission's determination that revocation of the countervailing duty orders and antidumping duty orders on certain carbon steel products from specified countries, including corrosion-resistant carbon steel from France and Germany, would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. See Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom, 65 Fed.Reg. 75,301 (Dec. 1, 2000). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000). The court finds the Commission's findings to be supported by substantial evidence and in accordance with the law.

II BACKGROUND

In August 1993, the Commission found material injury or threat of material injury to U.S. domestic industry because of less than fair value ("LTFV") and subsidized imports of CRCS from, among other countries, France and Germany. See Certain Flat-Rolled Carbon Steel Products from Argentina, Australia, Austria, Belgium, Brazil, Canada, Finland, France, Germany, Italy, Japan, Korea, Mexico, the Netherlands, New Zealand, Poland, Romania, Spain, Sweden, and the United Kingdom, USITC Pub. 2664 (Aug.1993) ("Original Determination"). The Department of Commerce thus published antidumping and countervailing duty orders covering the subject merchandise from these countries. See Countervailing Duty Order and Amendment to Final Affirmative Countervailing Duty Determination: Certain Steel Products From France, 58 Fed.Reg. 43,759 (Aug. 17, 1993); Countervailing Duty Orders and Amendment to Final Affirmative Countervailing Duty Determinations: Certain Steel Products From Germany, 58 Fed.Reg. 43,756 (Aug. 17, 1993); Antidumping Duty Order and Amendments to Final Determinations of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from France, 58 Fed.Reg. 44,169 (Aug. 19, 1993); Antidumping Duty Orders and Amendments to Final Determinations of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Germany, 58 Fed.Reg. 44,170 (Aug. 19, 1993).

On September 1, 1999, the Commission concurrently instituted sunset reviews concerning the countervailing duty and antidumping orders on certain carbon steel products from France and Germany with sunset reviews regarding CRCS from Australia, Canada, Japan, and Korea.³ See Carbon Steel Products from Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom, 64 Fed.Reg. 47,862 (Sept. 1, 1999). On December 3, 1999, the Commission decided to conduct full reviews. See Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom, 64 Fed.Reg. 71,494 (Dec. 21, 1999).

Under to 19 U.S.C. § 1675a(a)(7) (2002), the Commission "cumulated" likely volume and price effects from all the countries under review. Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom, 65 Fed.Reg. 75,301 (Dec. 1, 2000). The Commission also found that revoking the subject orders would severely impact the domestic CRCS industry. The Commission stressed that the domestic industry faced significant volume and price declines for its product given the determination that importing nations had high levels of excess capacity coupled with cost margins that necessitate maximum employment of capacity.

On November 2, 2000, the Commission determined that revoking the antidumping and countervailing duty orders on CRCS from Australia, Canada, France, Germany, Japan, and Korea would cause the continuation or recurrence of material injury to U.S. domestic industry within a reasonably foreseeable time. See Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom, 65 Fed.Reg. 75,301 (Dec. 1, 2000) ("Notice of Commission's Determination"); Certain Carbon Steel Products From Australia, Belgium Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, The Netherlands, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, USITC Pub. No. 3364. (Nov. 27, 2000) ("Review Determination"). The French and German producers and exporters of the subject merchandise appealed the Commission's Review Determination to this Court. The court in Usinor I remanded and required the Commission to reexamine its "no discernible adverse impact" findings with respect to French and German imports and to reevaluate its cumulation, likely volume, likely price, and likely impact findings. Familiarity with the decision in Usinor I is presumed.

Presently before the court is the ITC's Remand Determination in which the Commission affirmed its views and determined that the revocation of the antidumping and countervailing duty orders on corrosion-resistant steel from France and Germany would be likely to lead to the continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.

The court finds that the ITC has made its Remand Determination in accordance with law.

III THE COURT'S INSTRUCTIONS AND PARTIES' ARGUMENTS

The court instructed the ITC to address the French and German producers' evidence "regarding capacity utilization and the impact of the EU"; "discuss the key issues in its determination"; and "discuss its obligations under the Antidumping Agreement vis-à-vis 19 U.S.C. § 1675a(a)(7) and must fully explain whether its position can be reconciled with, or unavoidably contradicts, the Antidumping Agreement." Usinor I, 2002 WL 1998315, *23.

The Plaintiff German Producers argue that the ITC's Remand Determination fails to address adequately the court's concerns as to deficiencies in the ITC's Original Determination; improperly ignores evidence supporting the German Producers' position; and does not direct the court's attention to sufficient evidence to support a conclusion that revocation of the antidumping orders on corrosion resistant carbon steel flat products from Germany is likely to have a discernible adverse impact on the domestic industry.

The Plaintiff French Producers argue that the ITC's determination that the French Producers have the ability to increase exports to the United States is not supported by substantial evidence; the ITC again failed to show that there is a "likelihood" to increase exports to the United States; and the Commission did not follow the court's instructions with regards to the proper treatment of U.S. international obligations.

The Defendant-Intervenors argue that the ITC correctly executed the cumulation analysis of French and German imports in accordance with U.S. statute and U.S. international obligations; the Commission's findings concerning no discernible adverse impact as well as EU integration are supported by substantial evidence and are in accordance with the law.

IV STANDARD OF REVIEW

In reviewing final determinations in antidumping duty investigations, the court will hold unlawful those agency determinations that are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(I) (2000). Substantial evidence is "such relevant evidence as a reasonable...