JMC Steel Group v. United States, 101514 USCIT, 13-00022

Docket Nº:13-00022
Opinion Judge:Mark A. Barnett, Judge.
Party Name:JMC STEEL GROUP, Plaintiff, v. UNITED STATES, Defendant, ALLIED TUBE AND CONDUIT, WHEATLAND TUBE, AND UNITED STATES STEEL CORPORATION, Plaintiff-Intervenors, AL JAZEERA STEEL PRODUCTS CO., SOAG, VIETNAM HAIPHONG HONGYUAN MACHINERY MANUFACTORY CO., LTD., UNIVERSAL TUBE AND PLASTIC INDUSTRIES, LTD., KHK SCAFFOLDING & FORMWORK, LLC, UNIVERSAL TUBE AND
Attorney:John R. Magnus, Tradewins LLC, of Washington, DC, for plaintiff. Roger B. Schagrin, Schagrin Associates, of Washington, DC, argued for plaintiff-intervenor Allied Tube and Conduit. With him on the brief was John W. Bohn. Stephen P. Vaughn, Robert E. Lighthizer, James C. Hecht, and Luke A. Meisner...
Judge Panel:Before: Mark A. Barnett, Judge.
Case Date:October 15, 2014
Court:Court of Appeals of International Trade
 
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JMC STEEL GROUP, Plaintiff,

ALLIED TUBE AND CONDUIT, WHEATLAND TUBE, AND UNITED STATES STEEL CORPORATION, Plaintiff-Intervenors,

v.

UNITED STATES, Defendant,

AL JAZEERA STEEL PRODUCTS CO., SOAG, VIETNAM HAIPHONG HONGYUAN MACHINERY MANUFACTORY CO., LTD., UNIVERSAL TUBE AND PLASTIC INDUSTRIES, LTD., KHK SCAFFOLDING & FORMWORK, LLC, UNIVERSAL TUBE AND PIPE INDUSTRIES, LLC, ZENITH BIRLA (INDIA) LIMITED, AND CONARES METAL SUPPLY LIMITED, Defendant-Intervenors.

No. 13-00022

Slip Op. 14-120

Court of Appeals of International Trade

October 15, 2014

[The court grants in part and denies in part Plaintiff's and Plaintiff-Intervenors' Motions for Judgment on the Agency Record and remands the determination to the International Trade Commission. On remand, the ITC shall reconsider Plaintiff's argument that the structure of the domestic CWP market precluded domestic producers from providing the ITC the lost sales and revenue information which it sought. The ITC also shall further examine the impact of subject imports on the domestic industry within the context of the business cycle. The Commission may collect additional evidence relevant to these issues and reconsider any aspect of the Final Determination which relied upon or took into consideration its prior findings on these issues.]

John R. Magnus, Tradewins LLC, of Washington, DC, for plaintiff.

Roger B. Schagrin, Schagrin Associates, of Washington, DC, argued for plaintiff-intervenor Allied Tube and Conduit. With him on the brief was John W. Bohn.

Stephen P. Vaughn, Robert E. Lighthizer, James C. Hecht, and Luke A. Meisner, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, for plaintiff-intervenor United States Steel Corporation.

Gilbert B. Kaplan, King & Spalding, LLP, of Washington, DC, argued for plaintiff-intervenor Wheatland Tube.

Karl von Schriltz, Attorney, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, argued for defendant. With him on the brief were Dominic L. Bianchi, General Counsel, and Neal J. Reynolds, Assistant General Counsel for Litigation.

David L. Simon, Law offices of David L. Simon, of Washington, DC, for defendant-intervenor Al Jazeera Steel Products Co., SAOG.

Donald B. Cameron, Morris, Manning & Martin LLP, of Washington DC, argued for defendant-intervenors Universal Tube and Plastic Industries, KHK Scaffolding & Formwork, LLC, and Universal Tube and Pipe Industries, LLC. With him on the brief were Julie C. Mendoza, R. Will Planert, Brady W. Mills, Mary S. Hodgins, and Sarah S. Sprinkle.

Max F. Schutzman, Ned. H. Marshak, and Kavita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, for defendant-intervenors Zenith Birla (India) Ltd. and Conares Metal Supply Ltd.

Robert F. Gosselink and Jonathan M. Freed, Trade Pacific PLLC, of Washington DC, for defendant-intervenor Vietnam Haiphong Hongyuan Machinery Manufactory Co., Ltd.

Before: Mark A. Barnett, Judge.

OPINION

Mark A. Barnett, Judge.

Plaintiff JMC Steel Group ("JMC") and Plaintiff-Intervenors Allied Tube and Conduit ("Allied"), United States Steel Corporation ("U.S. Steel") and Wheatland Tube ("Wheatland") (collectively, "Plaintiffs") move, pursuant to USCIT Rule 56.2, for judgment on the agency record, challenging the United States International Trade Commission's ("ITC" or "Commission") negative final injury determinations in the antidumping and countervailing duty investigations concerning certain circular welded carbon-quality steel pipe ("CWP") from India, Oman, the United Arab Emirates ("UAE"), and Vietnam ("subject imports"), published in Circular Welded Carbon-Quality Steel Pipe from India, Oman, the United Arab Emirates, and Vietnam, 77 Fed. Reg. 73, 674 (ITC Dec. 11, 2012) ("Final Determination"), and the accompanying Views of the Commission, USITC Pub. 4362, Inv. Nos. 701-TA-482-484 and 731-TA-1191-1194 (Final) (Dec. 2012) ("Views").1 For the reasons stated below, the court grants in part and denies in part Plaintiff's and Plaintiff-Intervenors' motions and remands this case to the ITC.

Background

On October 26, 2011, Plaintiffs filed a petition with the ITC, alleging material injury and threat of material injury by reason of dumped and subsidized CWP imports from India, Oman, the UAE, and Vietnam. See Circular Welded Carbon-Quality Steel Pipe from India, Oman, United Arab Emirates, and Vietnam, 76 Fed. Reg. 68, 208 (ITC Nov. 3, 2011) (initiation of antidumping and countervailing duty investigations). In December 2012, the ITC published its final determination, which examined a period of investigation ("POI") of January 2009 through June 2012. The Commission described CWP as:

[s]tandard pipe . . . . intended for the low-pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. . . .

Other applications for CWP include light load-bearing or mechanical applications, such as conduit shells, and structural applications in general construction.

Views at 9 (footnotes omitted).2 The Commission determined that subject imports and the domestic like product are "generally fungible, " share the same channels of distribution, have a "reasonable overlap" of competition, and that price is a significant factor in CWP purchasing decisions. Id. at 15-16, 20. It found a significant increase in the volume of subject imports during the POI, in absolute terms and relative to domestic consumption and production, but concluded that the increase did not have significant adverse effects on the domestic industry. Id. at 29. Although the ITC observed that subject imports "pervasively undersold" the domestic like product by significant margins during the POI, it nevertheless found "no evidence" that subject imports significantly depressed or suppressed prices of the domestic like product. Id. at 30-31. The ITC also found that the domestic industry's performance improved in "almost every measure [during the POI] despite the weak recovery in CWP demand" following the 2008 economic crisis and that there was no correlation between subject import volume, market share, and underselling, and domestic industry performance. Id. at 43. In a 4-2 vote, the Commission determined that cumulated imports of dumped and subsidized subject imports from India, Oman, and the UAE and dumped subject imports from Vietnam neither caused nor threatened to cause material injury to the domestic industry. Final Determination, 77 Fed. Reg. at 73, 675; accord Views at 50.

Plaintiffs now challenge the Final Determination on several grounds. (See generally Br. JMC in Supp. Mot. J.A.R. ("JMC Mot."); Mem. in Supp. Mot. J.A.R. of Allied ("Allied Mot."); Mem. in Supp. Mot. Pl. U.S. Steel J.A.R. ("U.S. Steel Mot."); Br. Wheatland in Supp. Mot. J.A.R. ("Wheatland Mot.").) Plaintiffs variously contest, as unsupported by substantial evidence or not in accordance with law, the ITC's findings that (1) there was no correlation between the increase in subject import volume and negative price effects; (2) there was no correlation between the increase in subject import volume and declines in the domestic industry's performance; (3) the closure of two domestic CWP mills did not occur due to subject imports and led to increased capacity at other mills; (4) subject producer capacity did not threaten the domestic industry with material injury; and (5) the domestic industry did not anticipate negative effects from subject imports in the imminent future. They also contest the lawfulness of the ITC's (1) alleged conclusion that negative volume effects alone could not warrant an affirmative injury determination; (2) alleged failure to take into account the business cycle in its analysis; (3) use of pre-POI data in its analysis; (4) refusal to employ the Commercial Policy Analysis System methodology ("COMPAS model"); and (5) reliance on interim 2011 and 2012 data. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(c).

Standard of Review

The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). 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. v. N.L.R.B., 305 U.S. 197, 229 (1938)). It '"requires more than a mere scintilla, " but "'less than the weight of the evidence.'" Nucor Corp. v. United States, 34 CIT ___, ___, 675 F.Supp.2d 1340, 1345 (2010) (quoting Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004)). In determining whether substantial evidence supports the ITC's determination, the 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.'" Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). That a plaintiff can point to evidence that detracts from the agency's conclusion or that there is a possibility of drawing two inconsistent conclusions from the evidence does not preclude the agency's finding from being supported by substantial evidence. Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933, 936 (Fed. Cir. 1984) (citing Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 619-20 (1966); Armstrong Bros. Tool Co. v. United States, 626 F.2d 168, 170 n.3 (C.C.P.A. 1980)). The court "may not reweigh the evidence or substitute its own judgment for that of the agency." Usinor v. United States...

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