569 F.Supp.2d 1328 (CIT 2008), 07-00070, Nucor Corp. v. United States
|Docket Nº:||Court No. 07-00070.|
|Citation:||569 F.Supp.2d 1328|
|Party Name:||NUCOR CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and Corus Group PLC, AG Der Dillinger: H|
|Case Date:||July 09, 2008|
|Court:||Court of International Trade|
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Wiley Rein LLP, (Alan H. Price; Timothy C. Brightbill) for Plaintiff, Nucor Corporation.
James M. Lyons, General Counsel; Neal J. Reynolds, Assistant General Counsel, Office of the General Counsel, United States International Trade Commission (Mary J. Alves; David B. Fishberg), for Defendant, United States.
Steptoe & Johnson LLP, (Gregory S. McCue; Richard O. Cunningham; Michael A. Pass) for Defendant-Intervenor, Corus Group PLC.
DeKieffer & Horgan, (Marc E. Montalbine; J. Kevin Horgan; Merritt R. Blakeslee) for Defendant-Intervenors, AG der Dillinger Hüttenwerke, Salzgitter AG
Stahl und Technologie and ThyssenKrupp Steel AG.
Vinson & Elkins LLP, (Christopher A. Dunn; Valerie S. Ellis) for Defendant-Intervenors, Companhia Siderúrgica Paulista (“COSIPA" ) and Usinas Siderúrgicas De MinasGerais SA (“USIMINAS" ).
NICHOLAS TSOUCALAS, Senior Judge.
This matter is before the Court on motion for judgment upon the agency record brought by plaintiff Nucor Corporation (“Nucor" or “Plaintiff" ) pursuant to USCIT Rule 56.2. Plaintiff challenges aspects of the negative final determination by the United States International Trade Commission (“Commission" or “ITC" ) in the five-year sunset reviews pursuant to 19 U.S.C. § 1675(c)(1) 1 concerning cut-to-length (“CTL" ) steel plate products from Belgium, Brazil, Finland, Germany, Mexico, Poland, Romania, Spain, Sweden, Taiwan and the United Kingdom.
Plaintiff Nucor challenges the Commission's negative final determination in the five-year “sunset" reviews concerning CTL steel plate products from Belgium, Brazil, Finland, Germany, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom.
On November 1, 2005, the Commission instituted five-year sunset reviews of the countervailing duty order and antidumping duty orders on certain carbon steel flat products from eleven subject countries. See Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, 70 Fed.Reg. 62,324 (Oct. 31, 2005). Effective February 6, 2006, the Commission determined to conduct full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930, 19 U.S.C. § 1675(c)(5). See Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, 71 Fed.Reg. 8,874 (Feb. 21, 2006).
The final determination was issued by the Commission on January 25, 2007 and was published in the Federal Register on January 31, 2007. See Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, 72 Fed.Reg. 4,529 (Jan. 31, 2007). The determinations and views of the Commission are contained in Certain Carbon Steel Products From Australia, Belgium, Brazil, Canada, Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, Confidential Views of the Commission (“Views" ), Invs. Nos. AA 1921-197 (Second Review); 701-TA-319, 320, 325-327, 348 and 350
(Second Review); and 731-TA-573, 574, 576, 578, 582-587, 612, and 614-618 (Second Review), USITC Pub. No. 3899 (Jan.2007).
In the final determination, the Commission determined that revocation of the antidumping duty and countervailing duty orders on subject countries would not be likely to lead to continuation or recurrence of material injury to the domestic CTL plate industry. The Commission also determined to decumulate subject imports from Romania upon finding that such subject imports would likely compete in the U.S. market under different conditions of competition from other subject imports. See Views at 4. In addition, the Commission determined that the volume of cumulated subject imports from the remaining nine subject countries (“cumulated subject countries" ) would not be significant should the orders be revoked, and that revocation of the orders would not result in any significant price effects and would not likely have a significant impact on the domestic industry within the reasonably foreseeable future. See id.
Plaintiff challenges each of these determinations arguing that they are unsupported by substantial evidence and otherwise contrary to law.2 See R. 56.2 Mot. And Supporting Br. Of Nucor Corp. (“Pl.'s Br." ) at 4. The Commission responds that its negative sunset determinations are supported by substantial evidence and otherwise in accordance with law and requests that the Court affirm them. See Mem. Of Def. United States International Trade Commission In Opp' n To Pl.'s Mot. For J. On The Agency R. (“ITC Mem." ) at 1. Defendant-Intervenors' arguments are not addressed separately where they parallel those of the Commission. See Resp. Of Defendant-Intervenors Corus Group, PLC, AG der Dillinger Hüttenwerke, Salzgitter AG Stahl und Technologie and ThyssenKrupp Steel AG, In Opposition to Pl.'s Mot. For J. On the Agency R. (“German-UK Resp. Br." ); Resp. Of Defendant-Intervenors Companhia Siderúrgica Paulista (“COSIPA" ) and Usinas Siderúrgicas De Minas Gerais SA (“USIMINAS" ) To Pl.'s R. 56.2 Mot. (“COSIPA & USIMINAS Resp. Br." ).
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." 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) (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)).
I. Statutory Framework
The Commission and Commerce are required to conduct sunset reviews five years after publication of an antidumping duty or countervailing duty order or a prior sunset
review. See 19 U.S.C. § 1675(c)(1). In a five year sunset review of an antidumping duty or countervailing duty order, the Commission determines “whether revocation of an order ... would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time." 19 U.S.C. § 1675a(a)(1).
In a sunset review, the Commission has discretion to cumulatively assess the volume and effect of subject imports from several countries for purposes of the material injury analysis, so long as certain threshold requirements are met. See Nippon Steel Corp. v. United States, 494 F.3d 1371, 1374 n. 4 (Fed.Cir.2007) (citing 19 U.S.C. § 1675a(a)(7)). In addition, “[w]hen conducting a sunset review, the Commission is obligated to consider ‘the likely volume, price effect, and impact of imports of the subject merchandise on the industry if the order is revoked.’ " Nippon Steel, 494 F.3d at 1380 (quoting 19 U.S.C. § 1675a(a)(1)).
II. Cumulation In Five Year Reviews
The Commission's statutory authority for cumulation is set out in 19 U.S.C. § 1675a(a)(7), which provides that:
[T]he Commission may cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which reviews under section 1675(b) or (c) of this title were initiated on the same day, if such imports would be likely to compete with each other and with domestic like products in the United States market. The Commission shall not cumulatively assess the volume and effects of imports of the subject merchandise in a case in which it determines that such imports are likely to have no discernible adverse impact on the domestic industry. (emphasis added).
Pursuant to this statutory authority, the Commission declined to cumulate subject imports from Romania upon finding that they are not likely to compete with other subject imports and with the domestic like product. See Views at 43. In refraining from cumulating subject imports from Romania, it considered the four conditions of competition: (1) fungibility, (2) sales or offers in the same geographic markets, (3) common or similar channels of distribution, and (4) simultaneous presence. See id. at 47. In addition, the Commission considered “other considerations, such as similarities and differences in the likely conditions of competition of the subject imports with regard to their participation in the U.S. market for CTL plate." Id. at 50.
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