391 F.Supp.2d 1353 (CIT. 2005), 01-00692, Siderca S.A.I.C. v. United States

Docket Nº:Court No. 01-00692.
Citation:391 F.Supp.2d 1353
Party Name:SIDERCA S.A.I.C., et al., Plaintiffs, v. UNITED STATES, Defendant, and Newport Steel Corporation; Maverick Tube Corporation; Lone Star Steel Company, Incorporated; Koppel Steel Corporation; Ipsco Tubulars, Incorporated; Grant Prideco, Inc.; United States Steel Corporation, Defendant-Intervenors. Slip Op. 05-108.
Case Date:August 26, 2005
Court:Court of International Trade
 
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Page 1353

391 F.Supp.2d 1353 (CIT. 2005)

SIDERCA S.A.I.C., et al., Plaintiffs,

v.

UNITED STATES, Defendant,

and

Newport Steel Corporation; Maverick Tube Corporation; Lone Star Steel Company, Incorporated; Koppel Steel Corporation; Ipsco Tubulars, Incorporated; Grant Prideco, Inc.; United States Steel Corporation, Defendant-Intervenors.

Slip Op. 05-108.

Court No. 01-00692.

United States Court of International Trade.

Aug. 26, 2005

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White & Case, LLP, Washington, DC (David P. Houlihan, Gregory J. Spak, Richard J. Burke, Lyle B. Vander Schaaf, and Joanna M. Ritcey-Donohue) for the plaintiff.

James M. Lyons, Acting General Counsel, Andrea C. Casson, Acting Assistant General Counsel for Litigation, U.S. International Trade Commission, (Peter L. Sultan) for the defendant.

Schagrin Associates, Washington, DC (Roger B. Schagrin) for defendant-intervenors Newport Steel Corporation, Maverick Tube Corporation, Lone Star Steel Company, Koppel Steel Corporation, IPSCO Tubulars, Incorporated, and Grant-Prideco, Incorporated.

Skadden, Arps, Slate, Meagher & Flom LLP (Robert E. Lighthizer, John J. Mangan, James C. Hecht, and Stephen P. Vaughn) for defendant-intervenor United States Steel Corporation.

Page 1358

OPINION

POGUE, Judge.

Plaintiffs, Siderca S.A.I.C. ("Siderca"), Dalmine S.p.A. ("Dalmine"), and NKK Tubes challenge the remand determination of Defendant, the U.S. International Trade Commission ("the ITC"), in the sunset review of antidumping orders on oil country tubular goods ("OCTG") from Argentina, Italy, Japan, Korea, and Mexico. Plaintiffs allege that aspects of the ITC's determination are not in accordance with law and unsupported by substantial record evidence.

BACKGROUND

In August of 1995, following the ITC's finding that U.S. producers of OCTG were being materially injured by competition from dumped imports, see Oil Country Tubular Goods from Argentina, Austria, Italy, Japan, Korea, Mexico, and Spain, USITC Pub. 2911, Inv. Nos. 701-TA-363 and 364 (Final) and 731-TA-711-717 (Final), P.R. List 1, Doc. No. 116 at I-3 (Aug.1995) ( "Original Determ." ), the United States Department of Commerce imposed antidumping orders on OCTG from Argentina, Italy, Japan, Korea, and Mexico. See Oil Country Tubular Goods from Argentina, 60 Fed.Reg. 41,055 (Dep't Commerce Aug. 11, 1995) (antidumping duty order); Oil Country Tubular Goods from Italy, 60 Fed.Reg. 41,057 (Dep't Commerce Aug. 11, 1995) (antidumping duty order); Oil Country Tubular Goods from Japan, 60 Fed.Reg. 41,058 (Dep't Commerce Aug. 11, 1995) (antidumping duty order); Oil Country Tubular Goods from Korea, 60 Fed.Reg. 41,057 (Dep't Commerce Aug. 11, 1995) (antidumping duty order); Oil Country Tubular Goods from Mexico, 60 Fed.Reg. 41,056 (Dep't Commerce Aug. 11, 1995) (antidumping duty order). Five years later, pursuant to 19 U.S.C.§ 1675(c) (2000), the ITC instituted a sunset review to determine whether revocation of the antidumping orders would likely lead to the recurrence of material injury to U.S. OCTG producers within a reasonably foreseeable period of time. See 19 U.S.C. § 1675a(a)(1); 1 Seamless Pipe from Argentina, Brazil, Germany, and Italy and Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, 65 Fed.Reg. 63,889 (ITC Oct. 25, 2000) (notice of Commission determinations to conduct full five-year reviews concerning the countervailing duty order and antidumping duty orders on seamless pipe from Argentina, Brazil, Germany, and Italy and the countervailing duty order and antidumping duty orders on oil country tubular goods from Argentina, Italy, Japan, Korea, and Mexico) ( "Review Notice" ). The ITC cumulated the volume and effect of imported OCTG from the five reviewed countries; the ITC then found that, in the event of revocation of the antidumping order, these cumulated imports would likely cause recurrence of material injury to U.S. OCTG producers within a reasonably foreseeable time. See Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, Inv. No. 701-TA-364 (Review) and 731-TA-711 and 713-716 (Review), C.R. List 2, Doc. No. 91 at 1, 24 (June 29, 2001) ( "Commission's Views" ).

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Plaintiffs, subject producers of OCTG, 2 challenged the ITC's determinations before the Court, arguing that the ITC's interpretation of the word "likely" in its governing statute was not in accordance with law, and that there was not substantial evidence to support many of ITC's substantive findings.

The court remanded the ITC's determination so that the agency could explain how it understood and applied the statutory term "likely" in making its determination. The ITC affirmed on remand its finding that recurrence of material injury to the domestic industry would be likely in the event of revocation of the antidumping order. After remand, plaintiffs again challenge the agency's interpretation of the word "likely", as well as the quantum of evidence supporting the agency's substantive findings.

STANDARD OF REVIEW

The Court reviews the ITC's determinations in sunset reviews to ascertain whether they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i); see also 19 U.S.C. § 1516a(a)(2)(B)(iii).

DISCUSSION

The court first evaluates the challenge to the ITC's interpretation of the word "likely"; it then goes on to discuss whether substantial evidence supports the agency's substantive findings.

1. The "Likely" Standard

The word "likely" has a place of high importance in the statute governing sunset reviews. See 19 U.S.C. § 1675a. Indeed, that term is the fulcrum upon which most of the decisions that the agency is required to make in a sunset review turn. For example, the ITC must determine whether material injury is "likely" to continue or recur. See 19 U.S.C. § 1675a(a)(1).

Various opinions of the Court have held that the term "likely" should be interpreted to mean "probable," or, put another way, "more likely than not." See, e.g., AG der Dillinger Hüttenwerke v. United States, 193 F.Supp.2d 1339, 26 CIT 1091, 1100-1101, 1101 n. 14 (2002) (explaining that in a countervailing duty sunset review, to satisfy a "likely" standard, a thing must be shown to be "probable," or "more likely than not"); Usinor Industeel, S.A. v. United States, 26 CIT 467, 474-75, 2002 WL 818240 (2002) ( "Usinor I" ), Usinor Industeel, S.A. v. United States, 26 CIT 1402, 1403-04, 2003 WL 22080731 (2002), affirmed at 112 Fed.Appx. 59 (Fed.Cir.2004) (rejecting argument that "likely" means something between "possible" and "probable"). In light of previous cases dealing with contemporaneous reviews finding that the ITC may have employed the wrong standard, contemporaneous statements by the ITC arguing for or advancing a "possible," rather than a "probable" standard, and the lack of discussion of the issue in the determination itself, the court directed the agency on remand to indicate what standard it had actually used, and if the standard used was incorrect, to revisit its determinations accordingly. See Order Remanding Court No. 01-692 to the ITC (April 5, 2005).

In its remand determination, the ITC states "[i]n our original views in these reviews we applied a 'likely' standard that is consistent with how the Court has defined that term in Siderca, S.A.I.C. v. United States, 28 CIT ----, 350 F.Supp.2d 1223, 1243 (2004) as well as in prior opinions addressing this issue." Response of the Commission to Remand Order at 2, Attach. to Letter from Peter L. Sultan, Counsel for Defendant, to the Hon. Donald C. Pogue, Re: Siderca, S.A.I.C., et. al. v. United States, Consol. Ct. No. 01-692 (June 6, 2005). The court will accept this statement as an assertion that the evidence amassed and cited by the agency is such as to meet or surpass the burden under the "probable" standard. Therefore, at this juncture, the only way in which the agency's statement can be measured is by the sum of record evidence that supports the agency's determinations here. See Siderca, S.A.I.C. v. United States, 29 CIT ----, 374 F.Supp.2d 1285, 1288-89 (2005).

2. Substantial evidence

Plaintiffs challenge whether the evidence compiled by the ITC is sufficient to support its conclusions on a number of issues. First, plaintiffs challenge the ITC's determination to cumulate imports from Argentina, Italy, Japan, Korea, and Mexico. Second, plaintiffs challenge the evidence supporting the agency's determination that, taken together, (1) the likely volume of subject imports, (2) the likely price effects of subject imports, and (3) the likely impact of subject imports, are such as to lead to a recurrence of material injury to domestic manufacturers of OCTG within a reasonably foreseeable time. The court addresses the two issues in turn.

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A. Cumulation

In a sunset review proceeding, the ITC may cumulate subject imports from all countries with respect to which [sunset reviews] were initiated on the same day, if certain other elements are satisfied. See 19 U.S.C. § 1675a(a)(7). First, the ITC must determine whether the imports from each country would be likely to have no discernible impact on the U.S. market. See id. Second, the ITC must find that the imports it seeks to cumulate would likely compete with each other and with the domestic product. See id. Here, there is no question that sunset reviews for OCTG from Argentina, Italy, Japan, Korea, and Mexico were initiated on the same day. See Review Notice, 65 Fed.Reg. at 63,889. However, plaintiffs challenge whether certain of these countries' imports would have a discernible adverse impact...

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