475 F.Supp.2d 1370 (CIT. 2006), 05-00488, Allegheny Ludlum Corp. v. United States

Docket Nº:05-00488.
Citation:475 F.Supp.2d 1370
Party Name:ALLEGHENY LUDLUM CORP. and AK Steel Corp., Plaintiffs, v. UNITED STATES, Defendant, and Outokumpu Stainless, Ltd., et al., Defendant-Intervenors. No. 06-188.
Case Date:December 22, 2006
Court:Court of International Trade
 
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Page 1370

475 F.Supp.2d 1370 (CIT. 2006)

ALLEGHENY LUDLUM CORP. and AK Steel Corp., Plaintiffs,

v.

UNITED STATES, Defendant,

and

Outokumpu Stainless, Ltd., et al., Defendant-Intervenors.

No. 06-188.

No. 05-00488.

United States Court of International Trade.

Dec. 22, 2006

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[Copyrighted Material Omitted]

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Kelley Drye Collier Shannon, Washington, DC (David A. Hartquist, Kathleen W. Cannon, and R. Alan Luberda) for Plaintiffs Allegheny Ludlum Corp. and AK Steel Corp.

David A.J. Goldfine and Michael K. Haldenstein, Attorney-Advisors, James M. Lyons, General Counsel, Andrea C. Casson, Assistant General Counsel for Litigation, Office of the General Counsel, U.S. International Trade Commission, for Defendant.

Shearman & Sterling, LLP, Washington, DC (Ryan A.T. Trapani, Robert S. LaRussa and Stephen J. Marzen) for Defendant-Intervenors Arcelor Stainless Steel USA, LLC and U & A France.

Steptoe & Johnson, LLP, Washington, DC (Gregory S. McCue, Richard O. Cunningham and Susan Rebecca Gihring) for Defendant-Intervenors Outokumpu Stainless, Ltd. and Outokumpu Stainless Coil, Inc.

OPINION

WALLACH, Judge.

I

INTRODUCTION

Plaintiffs, Allegheny Ludlum Corporation and AK Steel Corporation (collectively

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"Allegheny" or "Plaintiffs") challenge aspects of the United States International Trade Commission's ("ITC" or "the Commission") final determination in its five-year review of outstanding orders against stainless steel sheet and strip ("SSSS") as published in Stainless Steel Sheet and Strip from France, Germany, Italy, Japan, Korea, Mexico, Taiwan, and the United Kingdom, Inv. Nos. 701-TA-381-382 and 731-TA-797-804 (Review), USITC Pub. 3788 (July 2005) (" Final Determination (Pub.) "), Confidential Views of the Commission, Plaintiffs' App. 1., Confidential Admin. Rec. No. 299 (July 2005) (" Views "); see also Certain Stainless Steel Sheet and Strip From France, Germany, Italy, Japan, Korea, Mexico, Taiwan and the United Kingdom, 70 Fed.Reg. 41,236 (July 18, 2005) (" Notice of Final Results "). Plaintiffs, Allegheny, who are domestic producers, contest the ITC's decision not to cumulate subject imports from France and the United Kingdom on the basis of different conditions of competition and the Commission's finding that subject imports from France and the United Kingdom would not likely lead to continuation or recurrence of material injury to a United States industry within a foreseeable time. Plaintiffs' Memorandum of Law in Support of Motion for Judgment on the Agency Record ("Plaintiffs' Motion") at 1-2. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(B)(iii). The court finds that the Commission's findings are supported by substantial evidence and are in accordance with law.

II

BACKGROUND

On July 19, 1999, the Commission issued a determination that the United States SSSS industry was materially injured by subject imports from France, Germany, Italy, Japan, Korea, Mexico, Taiwan, and the United Kingdom. Certain Stainless Steel Sheet and Strip from France, Germany, Italy, Japan, Korea, Mexico, Taiwan and the United Kingdom, Inv. Nos. 701-TA-380-82, 731-TA-797-804, USITC Pub. 3208 (July 1999) (" Original Determination"); Certain Stainless Steel Sheet and Strip From France, Germany, Italy, Japan, The Republic of Korea, Mexico, Taiwan, and The United Kingdom, 64 Fed.Reg. 40,896 (July 28, 1999). Subsequent to the ITC's finding, the United States Department of Commerce ("Commerce" or "the Department") imposed antidumping orders on imports from France, Germany, Italy, Japan, Korea, Mexico, Taiwan and the United Kingdom and countervailing duty orders on imports from France, Italy, and Korea. 1 Notice of Antidumping Duty Order; Stainless Steel Sheet and Strip in Coils From United Kingdom, Taiwan and South Korea, 64 Fed.Reg. 40,555 (July 27, 1999); Amended Final Determination: Stainless Steel Sheet and Strip in Coils From the Republic of Korea; and Notice of Countervailing Duty Orders: Stainless Steel Sheet and Strip in Coils From France, Italy, and the Republic of Korea, 64 Fed.Reg. 42,923 (August 6, 1999).

On June 1, 2004, the Commission commenced a five-year review pursuant to 19 U.S.C. § 1675(c) in which it made a determination as to whether revocation of the countervailing and antidumping duty orders issued would be "likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury." 19 U.S.C. § 1675(c). The ITC's final determination was affirmative with regard to cumulated imports from Germany, Italy, Japan, Korea,

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Mexico and Taiwan. See Notice of Final Results, 70 Fed.Reg. at 41,236; Views at 1. With respect to France and the United Kingdom, the Commission determined that revocation of antidumping duty orders on SSSS would not likely lead to continuation or recurrence of material injury to an industry in the U.S. within a reasonably foreseeable time. Id. The Commission based its negative injury determination primarily on a finding that French imports underwent a significant decline during the original investigation and continued to account for less than 1% of the U.S. market during the review period. Id. at 38-39. The Commission also exercised its discretion not to cumulate subject imports from France and the United Kingdom pursuant to 19 U.S.C. § 1675a(a)(7) based on a finding that different conditions of competition exist in France and the United Kingdom as compared with other subject countries. Id. at 19-21.

The parties to this action besides Plaintiff and Defendant are Defendant-Intervenors U & A France and Arcelor Stainless USA, LLC and Outokumpu Stainless, Ltd. and Outokumpu Stainless Coil, Inc. (collectively "Outokumpu"). U & A France is the only producer of SSSS in France and the sole French exporter of SSSS to the United States. Id. at 9. Outokumpu is the sole UK exporter of SSSS to the United States and the principal producer of SSSS in the UK. Id. at 16. Both parties oppose Plaintiffs' Motion for Judgment Upon the Agency Record. Defendant-Intervenors' arguments are not addressed separately because they parallel those of Defendant, the United States. See Memorandum of Defendant-Intervenors U & A France and Arcelor Stainless USA, LLC in Opposition to Plaintiffs' Motion for Judgment on the Agency Record ("U & A France's Motion"); Response of Defendant-Intervenors, Outokumpu Stainless, Ltd. and Outokumpu Stainless Coil, Inc. in Opposition to Plaintiffs' Motion for Judgment on the Agency Record ("Outokumpu's Motion").

III

STANDARD OF REVIEW

In reviewing an ITC determination in a five-year review, the court will affirm the agency's determination 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 is more than a mere scintilla. It means 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). Significantly, "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. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). The court will therefore affirm the agency's determination if it is reasonable and supported by the record. Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984); see also U.S. Steel Group v. United States, 96 F.3d 1352, 1357 (Fed.Cir.1996) ("[T]he question ... is not whether [the court agrees] with the Commission's decision ... [but] only to review those decisions for reasonableness."). Moreover, the court's function is not to "reweigh the evidence or substitute its own judgment for that of the agency," Usinor v. United States, 342 F.Supp.2d 1267, 1272 (CIT 2004), nor must the court "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. NRLB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

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The court must consider the whole record and "take into account whatever in the record fairly detracts from its weight." Id.

In reviewing any agency's construction of a statute the court applies the Chevron two-prong analysis, which first looks at whether Congress has spoken directly to the issue and second, where Congressional intent is unclear, "the court does not simply impose its own construction on the statute ... [r]ather ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. Nat. Res. Def. Council Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The agency's construction need not be the only reasonable interpretation or even the most reasonable interpretation. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978).

IV

ANALYSIS

As a result of the ITC's five-year review of outstanding antidumping and countervailing duty orders on SSSS from France, Germany, Italy, Japan, Korea, Mexico, Taiwan, and the United Kingdom, the Commission issued a final decision determining that revocation of antidumping duty orders on SSSS from France and the United Kingdom would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a foreseeable time. See, e.g., Notice of Final Results, 70 Fed.Reg. 41,236. The part of the...

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