698 F.Supp. 234 (CIT. 1988), 85-03-00325, USX Corp. v. United States
|Docket Nº:||Court No. 85-03-00325.|
|Citation:||698 F.Supp. 234|
|Party Name:||USX CORPORATION, f/k/a United States Steel Corporation, Plaintiff, v. The UNITED STATES and United States International Trade Commission, Defendants, and Propulsora Siderurgica, S.A.I.C., Defendant-Intervenor.|
|Case Date:||September 16, 1988|
|Court:||Court of International Trade|
USX Corp., John J. Mangan, J. Michael Jarboe, Craig D. Mallick and Robin K. Capozzi, Pittsburgh, Pa., for plaintiff.
Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel and Timothy M. Reif, U.S. Intern. Trade Com'n, Washington, D.C., for defendants.
Mudge, Rose, Guthrie, Alexander & Ferdon, David P. Houlihan, Jeffrey S. Neeley, New York City, for defendant-intervenor.
OPINION AND ORDER
Plaintiff, USX Corporation, brings this action challenging the final determination of the United States International Trade Commission (ITC) that an industry in the United States was neither materially injured nor threatened with material injury by reason of imports of cold-rolled carbon steel plates and sheet from Argentina that were sold at less than fair value. Cold-Rolled Carbon Steel Plates and Sheets from Argentina, Inv. No. 731-TA-175 (May 1988) (Remand II).
Before the court are the results of the second remand in this action. In the court's previous opinion, USX v. United States, 12 CIT 205, 682 F.Supp. 60 (1988), the action was remanded to ITC because two of the four opinions comprising the majority were found to be legally flawed and not based on substantial evidence in their analysis of causation. The court also directed ITC to address further the issue of cumulation, specifically regarding imports from Brazil and Korea. 1, 2 Each of these issues will be discussed separately.
Prior to the Trade and Tariff Act of 1984, the cumulation of imports was discretionary and ITC could decide properly not to cumulate where the subject imports exhibited different trends in the U.S. market distinct from those of other countries imports or where other conditions of trade indicated that cumulation would be inappropriate. USX v. United States, 11 CIT 82, ----, 655 F.Supp. 487, 491-92; Lone Star Steel Co. v. United States, 10 CIT 731, ----, 650 F.Supp. 183, 186-87 (1986).
In the present case, ITC has based its decision not to cumulate imports of Brazil and Korea with those of Argentina on differing trends in import volume, insufficient similarities in pricing patterns and limited geographic overlap in the markets served by the imports. 3 Plaintiff agrees that prior to 1984 such distinctions could justify a decision not to cumulate when properly employed, but argue that a finding of divergent trends among these imports is not supported by the record in this case and that ITC's failure to cumulate imports from Brazil and Korea with those of Argentina was arbitrary, capricious and an abuse of discretion. 4
In its discussion of import volume trends, ITC notes that Argentine imports retained an essentially flat market share during the period of investigation while Brazilian and Korean imports increased their market share significantly during the same period. 5 Thus, Argentine imports were actually losing position relative to other importing countries during the period. 6 This observation is clearly substantiated in the record. See Remand I at A-7.
The record also supports ITC's finding that pricing patterns of Argentine imports show only limited similarity with those of Brazil and Korea. In the supplemental report to the first remand determination, ITC staff states that "[w]hile all of the price indexes are positively correlated, the Argentine prices are less highly correlated with those of the other three countries [Brazil, Korea and South Africa] and not in a statistically significant manner than are the prices of those countries with each other." Remand I at A-10; see id. at A-11.
Finally, the record confirms ITC's conclusion that there is little geographic overlap between U.S. markets served by Argentina
and Korea and that the geographic concentration of the imports of Argentina and Brazil differs significantly. See Remand I at A-8 and A-9.
In light of this evidence, the court finds that ITC acted within its discretion in not cumulating Argentine imports with those from Brazil and Korea.
In the determination presently before the court, the two commissioners whose causation analyses the court previously found insufficient concur with the two remaining members of the majority who utilize a traditional approach to causation analysis. That causation analysis, which was set forth in its entirety in Remand I, is now the subject of review.
Under a traditional approach to causation analysis, ITC closely follows the statutory outline and focuses its attention on the volume of imports of the subject merchandise, the effects of those imports on prices of United States like products, and the impact of those imports on domestic producers of like products. 19 U.S.C. § 1677(7)(B) (1982). In evaluating each of these factors, ITC considers various indicators which are set forth at 19 U.S.C. § 1677(7)(C) (1982). 7
Initially it should be noted that Congress has vested ITC with considerable discretion as to the weight it will assign a given factor in making its injury determination. Copperweld Corp. v. United States, 12 CIT 148, ----, 682 F.Supp. 552, 564 (1988); Maine Potato Council v. United States, 9 CIT 293, 300, 613 F.Supp. 1237, 1244 (1985). As Congress has explained:
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