Nippon Steel Corp. v. U.S.
| Decision Date | 15 June 2005 |
| Docket Number | Court No. 01-00103.,Slip Op. 05-72. |
| Citation | 391 F.Supp.2d 1258 |
| Parties | NIPPON STEEL CORP., Kawasaki Steel Corp., ThyssenKrupp Acciai Speciali Terni S.p.A. and Acciai Speciali Terni (USA), Inc., Plaintiffs, v. UNITED STATES, Defendant, and Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, Zanesville Armco Independent Union, and United Steelworkers of America, AFL-CIO/CLC, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Gibson, Dunn & Crutcher, LLP (Joseph H. Price), for plaintiffs Nippon Steel Corporation.
Arent Fox Kintner Plotkin & Kahn, PLLC (Robert H. Huey), for plaintiff Kawasaki Steel Corporation.
Hogan & Hartson L.L.P. (Lewis Liebowitz), for ThyssenKrupp Acciai Speciali Terni S.p.A. and Acciai Speciali Terni (USA), Inc.
James M. Lyons, Acting General Counsel, United States International Trade Commission; Marc A. Bernstein, Acting Assistant General Counsel, United States International Trade Commission (Gracemary R. Roth-Roffy), for defendant United States International Trade Commission.
Collier Shannon Scott, PLLC (Kathleen W. Cannon, Michael J. Coursey, Eric R. McClafferty, John M. Herrmann, Grace W. Kim, and David A. Hartquist), for defendant-intervenors Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, Zanesville Armco Independent Union, and the United Steelworkers of America, AFL-CIO/CLC.
[United States International Trade Commission's remand determination of a sunset review of countervailing and antidumping duty orders on grain-oriented silicon electrical steel affirmed in part, remanded in part]
This matter is before the court following remand to the United States International Trade Commission ("ITC" or "Commission"). In Nippon Steel Corp. v. United States, 301 F.Supp.2d 1355 (2003) ("Nippon IV"), the court remanded, for a second time, the ITC's sunset review1 determination that material injury to an industry in the United States would be likely to continue or recur by reason of dumped and subsidized imports of grain-oriented silicon electrical steel2 from Italy and Japan ("GOES" or "Subject Imports"). See Final Determination Invs. Nos. 701-TA-355 and 731-TA-659-660 (Review) (Feb.2001) ("Sunset Review").3 Pursuant to court remand, the ITC issued a second remand determination on March 16, 2004. See Second Remand Determination, Invs. Nos. 701-TA-355 and 731-TA-659-660 (Review) (Mar. 16, 2004) ("Second Remand Determination"). For the reasons stated below, the court affirms portions of the Second Remand Determination and remands the remainder for further action in conformity with this opinion.
The background of this case has been fully rehearsed in Nippon IV, in which the court reviewed the ITC's first remand determination and found certain conclusions to be unsupported by substantial evidence.4 See Grain-Oriented Silicon Electrical Steel From Italy and Japan, USITC Pub. 3585, Invs. Nos. 701-TA-355 and 731-TA-659-660 (Mar.2003) (Review) (Remand) ("First Remand Determination").5 There, the court instructed the ITC to revisit the evidence cited for its findings with respect to cumulation and likelihood of continuation or recurrence of material injury and satisfy its obligations with specific reference to the evidence it claims supports its conclusions and adequate explanations of its findings based on this evidence. The ITC shall also address the record evidence which "fairly detracts" from the weight of the evidence supporting the ITC's determinations.
Nippon IV, 301 F.Supp.2d at 1385. The ITC responded to this instruction in the Second Remand Determination, which restated its original conclusions. See Second Remand Determination at 1.6
Plaintiffs Nippon Steel Corp. ("Nippon"), JFE Steel Corp.,7 ThyssenKrupp Acciai Speciali Terni S.p.A. ("AST" or the "Italian producer") and Acciai Speciali Terni (USA), Inc.8 (collectively, the "Plaintiffs") again challenge, as unsupported by substantial evidence, several of the ITC's determinations, including those relating to cumulation, likely volume, and likelihood of recurrence of material injury.9 Defendant-Intervenors Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, Zanesville Armco Independent Union, and United Steelworkers of America, AFL-CIO/CLC (collectively "Defendant-Intervenors") maintain that the Commission's Second Remand Determination is supported by substantial evidence and should therefore be sustained. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I).
The court will hold unlawful "any determination, finding, or conclusion found ... to be 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." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (citations omitted). It "requires `more than a mere scintilla,' but is satisfied by `something less than the weight of the evidence.'" Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed.Cir.2004) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). The existence of substantial evidence is determined "by considering the record as a whole, including evidence that ... `fairly detracts from the substantiality of the evidence.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003) (citing Atl. Sugar, 744 F.2d at 1562). In conducting its review, the court's function is not to reweigh the evidence but rather to ascertain "whether there was evidence which could reasonably lead to the Commission's conclusion...." Matsushita, 750 F.2d at 933. The possibility of drawing two inconsistent conclusions from the record evidence does not, in itself, prevent the ITC's determinations from being supported by substantial evidence. Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted); Altx, 370 F.3d at 1116.
On remand, the primary issue that the ITC was instructed to reexamine related to whether substantial evidence supported its likely volume findings as they affected cumulation and material injury. Thus, the court will first discuss evidence of future volume of subject imports should the antidumping and countervailing duty orders be revoked.
In both its cumulation determination and its injury determination, the ITC is required to examine the evidence of likely future volume of subject imports should the countervailing duty and antidumping duty orders be revoked.10 Although the
standards for cumulation and injury are different, the two determinations share the evidence necessary to reach a conclusion.
While not specifically instructed to do so, the Commission, on remand, expresses its views as to how increased worldwide demand for GOES, including U.S. demand, would impact GOES sales to the United States. The Commission's purpose in doing so is to answer the argument that rising worldwide demand for GOES will cause the Japanese and Italian producers to export their product to countries other than the United States. The ITC argues that, despite the prospect of increasing worldwide demand for GOES, because the United States market commands high prices for the product, foreign subject producers will have an incentive to export to this country. See Second Remand Determination at 46. The claim that "GOES commands a higher price in the U.S. market than in other markets" has been examined by this court and found to be justified.11 According to the ITC, these higher prices will inevitably attract foreign imports. See Second Remand Determination at 46-47. With this finding in mind, the court turns to the Commission's country-specific arguments.
On remand, the ITC was instructed to examine evidence relating to the Japanese producers with respect to (a) interim 2000 capacity utilization data, (b) [[ ]] that would direct Japanese GOES away from the U.S. market, and (c) the inability of Japanese producers to increase production capacity. See Nippon IV, 305 F.Supp.2d at 1366.
In its remand results, the ITC makes no claim that Japanese interim 2000 capacity utilization data demonstrates a great deal of existing unused production capacity, or indeed that there exists a likely prospect that the Japanese producers will expand production capacity.12 Rather, the ITC relies on its finding that domestic economic conditions in Japan, and increased production in China and India, will free up Japanese capacity for export to the United States. See Second Remand Determination at 43; see also id. at 20 ().
First, the ITC argues that Japanese domestic consumption will likely fluctuate as it has in the past, i.e., Id. at 43. According to the ITC, these fluctuations will have the effect of making subject merchandise that otherwise would be absorbed domestically available for export. In support of its conclusion that domestic consumption will likely fluctuate as it has in the past, the ITC presents the following evidence: ...
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