477 F.Supp.2d 1313 (CIT. 2007), 06-00125, Committee for Fair Beam Imports v. United States

Docket Nº:06-00125.
Citation:477 F.Supp.2d 1313
Party Name:COMMITTEE FOR FAIR BEAM IMPORTS, Plaintiff, v. UNITED STATES, Defendant, and Hyundai Steel Company, Defendant-Intervenor. No. 07-33.
Case Date:March 08, 2007
Court:Court of International Trade
 
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Page 1313

477 F.Supp.2d 1313 (CIT. 2007)

COMMITTEE FOR FAIR BEAM IMPORTS, Plaintiff,

v.

UNITED STATES, Defendant,

and

Hyundai Steel Company, Defendant-Intervenor.

No. 07-33.

No. 06-00125.

United States Court of International Trade.

March 8, 2007

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Wiley Rein & Fielding, LLP, (Alan H. Price; John R. Shane; Michael William Schisa; Christopher B. Weld) for Plaintiff, Committee for Fair Beam Imports.

Marc A. Bernstein, Office of the General Counsel, James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of the General Counsel, U.S. International Trade Commission for Defendant, United States.

Kaye Scholer, LLP, Washington, DC (Donald B. Cameron; Julie C. Mendoza; Brady W. Mills; Jahna M. Hartwig) for Defendant-Intervenor, Hyundai Steel Company.

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BEFORE: Senior Judge NICHOLAS TSOUCALAS.

OPINION

TSOUCALAS, Senior Judge.

This matter is before the Court on motion for judgment upon the agency record brought by the Committee for Fair Beam Imports and its individual members Chaparral Steel Company, Nucor Corporation, Nucor-Yamato Steel Company and Steel Dynamics, Inc. (collectively "CFBI" or "Plaintiff") pursuant to USCIT Rule 56.2. Plaintiff challenges aspects of the United States International Trade Commission's ("ITC" or "Commission") negative final determination in the five-year sunset reviews concerning structural steel beams from Japan and Korea. The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a (a)(2)(A)(i)(I) and (B)(iii) (2000). For the reasons set forth below, the Court affirms the ITC's determination and dismisses this action.

BACKGROUND

On May 2, 2005, the ITC instituted five-year sunset reviews 1 of the countervailing duty order on structural steel beams from Korea and the antidumping duty orders on structural steel beams from Japan and Korea (collectively, "the orders"). See Structural Steel Beams From Japan and Korea, 70 Fed.Reg. 22,696 (ITC May 2, 2005) (Notice of Institution). On August 5, 2005 the ITC determined to conduct full reviews of each order. 2 See Structural Steel Beams From Japan and Korea, 70 Fed.Reg. 48,440 (ITC Aug. 17, 2005) (Notice of Commission determination to conduct full five-year reviews). It consequently issued questionnaires, permitted interested parties to submit evidence and file briefs, and conducted a hearing, during which all persons who requested the opportunity, were permitted to appear. See id.; Structural Steel Beams From Japan and Korea, 71 Fed.Reg. 13,431 (ITC Mar. 15, 2006) (Notice). CFBI submitted data compiled by a commercial service monitoring markets in steel products ("service data"). 3 See Pl.'s Br. at 15. See generally Pet' s Prehearing Br., C.R. Doc. 116; Pet.'s Posthearing Br.,

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C.R. Doc. 125. 4 The parties to the investigation concurred that this data was probative of conditions of competition. 5 See Def.'s Resp. Pl.'s Mot. J. Agency Rec. at 4 ("Def.'s Resp.").

The ITC's final determination was issued on March 9, 2006 and published on March 15, 2006. See Structural Steel Beams from Japan and Korea, Inv. Nos. 701-TA-401, 731-TA-853-854 (Review) USITC Pub. No. 3840 (March 2006) ("Final Determination") (C.R.Doc.159); 71 Fed.Reg. at 13,431. The ITC determined that "revocation of the antidumping duty orders on structural steel beams from Japan and Korea and revocation of the countervailing duty order on structural steel beams from Korea would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time." Final Determination, C.R. Doc. 159 at 1.

Plaintiff disagrees, and argues that the final determination is unsupported by substantial evidence and otherwise contrary to law. See Pl.'s Mem. Supp. R. 56.2 Mot. J. Ag. Rec. at 4 ("Pl.'s Mem."). Specifically, Plaintiff contests the ITC's finding with respect to volume. It insists that the "determination that revocation of the orders would not result in a significant volume of subject imports is unsupported by substantial evidence and otherwise contrary to law" because it was based on what Plaintiff considers to be "erroneous findings." 6 Id. (listing ITC findings including, inter alia, that price disparities do not provide incentive to increase exports to the United States; projections regarding supply and demand in Asia.). Although Plaintiff also contests the determinations regarding likely price effects and impact, it does so only because it contends that, "these determinations were based in large part on the [ITC's] erroneous findings regarding the likely volume of subject imports." Id. at 4-5. As such, CFBI's argument focuses, primarily, on the ITC's findings on the likely volume of subject imports. See generally id. at 11-32.

STANDARD OF REVIEW

When reviewing ITC determinations in sunset reviews "[t]he court shall hold unlawful any determination, finding, or conclusion ... found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law % & (4)27" 19 U.S.C. § 1516a(b)(1)(B)(i). "Substantial evidence is more than a mere scintilla." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003)

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(quoting Consol. Edison Co., 305 U.S. at 229, 59 S.Ct. 206). In determining the existence of substantial evidence, a reviewing court must consider "the record as a whole, including evidence that supports as well as evidence that 'fairly detracts from the substantiality of the evidence.' " Huaiyin, 322 F.3d at 1374 (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984)).

DISCUSSION

I. Statutory Framework

The ITC is instructed by statute to evaluate "the likely volume, price effect, and impact of imports of the subject merchandise on the industry if the order is revoked...." 19 U.S.C. § 1675a(a)(1). Although the ITC must consider each of these factors, the Court limits its discussion of price effect and impact because, in the instant matter, Plaintiff primarily contests the ITC's finding with respect to volume. Title 19 U.S.C. § 1675a(a)(2) governs this finding, and provides:

In evaluating the likely volume of imports of the subject merchandise if the order is revoked ... the Commission shall consider whether the likely volume of imports of the subject merchandise would be significant if the order is revoked ... either in absolute terms or relative to production or consumption in the United States. In so doing, the Commission shall consider all relevant economic factors, including ("economic factors")--

(A) any likely increase in production capacity or existing unused production capacity in the exporting country,

(B) existing inventories of the subject merchandise, or likely increases in inventories,

(C) the existence of barriers to the importation of such merchandise into countries other than the United States, and

(D) the potential for product-shifting if production facilities in the foreign country, which can be used to produce the subject merchandise, are currently being used to produce other products.

§ 1675a (a)(2).

Put simply, the ITC must determine whether, considering the four economic factors set forth in subsections (A) through (D), it is "likely" that the volume of imports will be "significant" if the unfair trade orders are revoked. 7 Id. "Thus, in accordance with the statute, in order to find sufficient volume for there to be injury, the ITC must identify substantial evidence from the record demonstrating that, should the orders be revoked, it is likely that the volume of the subject imports entering the U.S. market will be significant. 8" Nippon Steel Corp. v. United States, 29 CIT ----, ----, 391 F.Supp.2d 1258, 1275 (2005) (citing 19 U.S.C. § 1675a (a)(2)).

Lastly, 19 U.S.C. § 1677(7)(C) provides further guidance in evaluating volume during

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a sunset review. 9 It instructs that in evaluating the significance of the volume, the ITC must do so in either absolute terms, or relative to production or consumption in the United States. See § 1677(7)(C)(i).

II. The ITC's Finding With Respect to Volume Is Supported By Substantial Evidence and Otherwise In Accordance With Law.

Plaintiff's contest to the ITC's finding is reviewed under the substantial evidence standard. The Court will uphold a determination by the ITC only if it is supported by substantial evidence and otherwise in accordance with law. See Nippon, 391 F.Supp.2d at 1275. The ITC's determination, however, is "presumed to be correct," and the burden of demonstrating otherwise rests upon the party challenging the determination. 28 U.S.C. § 2639(a)(1). As such, the party challenging the ITC's determination under the substantial evidence standard "has chosen a course with a high barrier to reversal." Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed.Cir.2001). Indeed, the United States Court of Appeals for the Federal Circuit ("CAFC") has indicated that "in the hierarchy of the four most common standards of review, substantial evidence is the second most deferential, and can be translated roughly to mean[:] is [the determination] unreasonable?" See Nippon Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed.Cir.2006) (internal citation and quotations omitted) (alteration in original).

In the instant matter, Plaintiff challenges the sufficiency of the ITC's determination on volume by contesting the ITC's subsidiary findings. Specifically, CFBI insists that the ITC made the following "erroneous...

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