U.S. Steel Corp. v. U.S.
| Citation | 350 F.Supp.2d 1276 |
| Decision Date | 18 November 2004 |
| Docket Number | SLIP OP. 04-147.,Court No. 00-00151. |
| Parties | UNITED STATES STEEL CORPORATION and Ispat Inland Inc., Plaintiffs, v. UNITED STATES, Defendant, and Usinas Siderurgicas de Minas Gerais S/A, Companhia Siderurgica Paulista, Companhia Siderurgica Nacional, Thai Cold Rolled Steel Sheet Public Company Limited, Iscor, Ltd., Nippon Steel Corporation, JFE Steel Corporation, Sumitomo Metal Industries, Ltd., Kobe Steel, Ltd., Nisshin Steel Company, Ltd., Eregli Demir ve Celik Fab. T.A.S., and Shanghai Baosteel Group Corporation, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Willkie Farr & Gallagher LLP (William H. Barringer, James P. Durling, Kenneth J. Pierce, Matthew R. Nicely, Christopher A. Dunn, and Robert E. DeFrancesco) for defendant-intervenors Usinas Siderurgicas de Minas Gerais S/A, Companhia Siderurgica Paulista, Companhia Siderurgica Nacional, Thai Cold Rolled Steel Sheet Public Company Limited, Nippon Steel Corporation, JFE Steel Corporation, Sumitomo Metal Industries, Ltd., Kobe Steel, Ltd., and Nisshin Steel Company, Ltd.
Wilmer Cutler Pickering LLP (Kristin H. Mowry) for defendant-intervenor Iscor, Ltd.
Law Offices of David L. Simon (David L. Simon) for defendant-intervenor Eregli Demir ve Celik Fab. T.A.S.
Greenberg Traurig, LLP (Philippe M. Bruno) for defendant-intervenor Shanghai Baosteel Group Corporation.
This case is before the Court following remand to the United States International Trade Commission ("ITC"). In Bethlehem Steel Corp. v. United States, 27 CIT ___, 294 F.Supp.2d 1359 (2003) ("Bethlehem I"), familiarity with which is presumed, the Court remanded the ITC's determinations with respect to plaintiffs Bethlehem Steel Corporation, Ispat Inland Inc., LTV Steel Company, Inc., United States Steel Corporation, and National Steel Corporation1 in Certain Cold-Rolled Steel Products From Argentina, Brazil, Japan, Russia, South Africa, and Thailand, 65 Fed.Reg. 15008 (Mar. 20, 2000), Certain Cold-Rolled Steel Products From Turkey and Venezuela, 65 Fed.Reg. 31348 (May 17, 2000), and Certain Cold-Rolled Steel Products From China, Indonesia, Slovakia, and Taiwan, 65 Fed.Reg. 44076 (July 17, 2000) (collectively "Final Determinations").
In Bethlehem I, the Court found that the ITC's interpretation of the captive production provision, see 19 U.S.C. § 1677(7)(C)(iv), was not in accordance with law. Specifically, the Court determined that the ITC's definition of "internal transfers" was unreasonable. Accordingly, the Court remanded the Final Determinations to the ITC to define "internal transfers" consistent with the will of Congress. The Court also instructed the ITC that, if it found the captive production provision to be applicable on remand, it would be required to consider primarily the merchant market in its "material injury" analysis under 19 U.S.C. §§ 1677d(b) and 1673d(b).2
The ITC duly complied with the Court's order. After allowing the domestic producers and purchasers to provide additional data relating to the captive production provision, the ITC issued the Views of the Commission on Remand (Apr. 30, 2004) ("Remand Results"). In the Remand Results, the ITC determined that the captive production provision was applicable, but further found that the domestic industry was not materially injured, or threatened with material injury, by reason of imports of certain cold-rolled steel products that the United States Department of Commerce found to be subsidized and/or sold at less than fair value in the United States.
United States Steel Corporation ("U.S.Steel") submitted Comments on the U.S. International Trade Commission's Redetermination Pursuant to Court Remand ("Pl.'s Comments"), and the ITC submitted Reply Comments in Defense of its Remand Determination ("ITC's Reply"). Defendant-Intervenors also submitted a Response to Plaintiffs' Comments ( ).3
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c). After due consideration of the parties' submissions, the administrative record, and all other papers had herein, and for the reasons that follow, the Court sustains the Remand Results.
The Court must sustain the Remand Results unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (citation omitted). Moreover, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Matsushita Elec. Indus. Co. Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (citation omitted).
The reviewing court may not, "even as to matters not requiring expertise ... displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In this regard, "the court may not reweigh the evidence or substitute its judgment for that of the ITC." Dastech Int'l, Inc. v. USITC, 21 CIT 469, 470, 963 F.Supp. 1220, 1222 (1997).
A. The ITC Reasonably Concluded that the Subsidized and/or LTFV Imports Did Not Affect Domestic Prices.
All parties agree that "[t]he central issue in these investigations is the role, if any, of subject imports in the price declines in the domestic market." Remand Results at 17; Pl.'s Comments at 4; Def.-Intvrs.' Response at 2. In evaluating the price effects of the subject imports, the ITC examines whether:
(I) there has been significant price underselling by the imported merchandise as compared with the price of domestic like products of the United States, and
(II) the effect of imports of such merchandise otherwise depresses prices to a significant degree or prevents price increases, which otherwise would have occurred, to a significant degree.
19 U.S.C. § 1677(7)(C)(ii).
U.S. Steel points to the pricing data for three specific items collected by the ITC, which "leaves no doubt that subject imports almost always undersold the domestic like product[.]" Pl.'s Comments at 4-5. From 1996 to 1997, the ITC made 268 comparisons and found 211 instances of underselling. Id. at 5. Similarly, from 1998 to the third quarter of 1999, the ITC made 319 comparisons and found 287 instances of underselling. Id. According to U.S. Steel, "[t]hese data — which must be considered by law — compel the conclusion that subject imports had a significant depressing effect on domestic prices." Id. (emphasis added).
To the extent U.S. Steel contends that evidence of underselling is a per se indication of injury, its argument fails. Coalition for the Pres. of Am. Brake Drum & Rotor Aftermarket Manufacturers v. United States, 22 CIT 520, 526, 15 F.Supp.2d 918, 924 (1998). "Evidence of underselling alone is legally insufficient to support an affirmative injury determination." BIC Corp. v. United States, 21 CIT 448, 458, 964 F.Supp. 391, 401 (1997), aff'd, App. No. 97-1443 (Fed.Cir.1998). "Rather, the [ITC] has a statutory mandate to consider not only whether the subject imports have significantly undersold the domestic like product, but also how the subject imports effect [sic] the prices of the domestic like product." Id.
The ITC has considerable discretion in interpreting the evidence and determining the overall significance of any particular factor in its analysis. Coalition, 22 CIT at 527, 15 F.Supp.2d at 925. S.Rep. No. 249 at 88 (1979), reprinted in 12979 U.S.C.C.A.N. 381, 474.
Here, the ITC did not neglect the evidence of underselling, but found that competition between subject imports and the domestic like product was "attenuated by differences between the two in various non-price factors [.]" Remand Results at 16-17 ().
First, the ITC found that "[a]ccording to purchasers, quality, availability, and delivery are the most important non-price factors when choosing a supplier...." Remand Results at 17-18. U.S. Steel argues that the ITC never found a significant difference in quality between the domestic product and the subject imports. Pl.'s Comments at 6. This argument is irrelevant, as the ITC explicitly noted that "purchasers overwhelmingly listed quality as the most important factor in purchasing decisions." Remand Results at 18 n. 72. Moreover, price was listed as the most important factor by only three of the thirty purchasers. Id.
Second, the ITC found that "when purchasers find a reliable supplier, they rarely change." Id. at 18. On...
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